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|The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (August 2012)|
|Part of the common law series|
|Element (criminal law)|
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An inchoate offense, inchoate offence, preliminary crime, or inchoate crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."
Every inchoate crime or offence must have the mens rea of intent or of recklessness, but most typically intent. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of solicitation of murder, he or she must have intended for a person to die.
The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.
There are a number of possible defences to the charge of an inchoate offence, depending on the jurisdiction and the nature of the offence.
Impossibility is no defence to the crime of attempt where the conditions creating the impossibility are unknown to the actor.
Originally at common law, impossibility was a complete defence; as it was under French law at one point. Indeed, the ruling in Collins's Case L. and C. 471 was that an offender cannot be guilty of an attempt to steal his own umbrella when he mistakenly believes that it belongs to another. Although the "moral guilt" for the attempt and the actual crime were the same, there was a distinction between the harm caused by a theft and the harmlessness of an impossible act. This principle was directly overruled in England with the rulings R v Ring and R v. Brown The example from R v Brown of an attempt to steal from an empty pocket is now a classic example of illustrating the point that impossibility is no defense to the crime of attempt when the conditions creating the impossibility are unknown to the actor. This principle has been codified in the Model Penal Code:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime he: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. MPC § 5.01 (1)(a) (emphasis added).
Consequently, the principle is universal in the United States either in Model Penal Code jurisdictions (40 states) or those remaining common law jurisdictions influenced by the reasoning in R v Brown.
A defendant may plead and prove, as an affirmative defense, that he:
Examples of inchoate offenses include conspiracy, solicitation, facilitation, misprision of felony (and misprision generally), organized crime, Racketeer Influenced and Corrupt Organizations Act (RICO), and attempt, as well as some public health crimes; see the list below.
There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. According to scholar Frank Schmalleger, burglaries "are actually inchoate crimes in disguise."
Other scholars warn about the consequences of such a theory:
Burglary, as a preliminary step to another crime, can been seen as an inchoate, or incomplete, offense. As it disrupts the security of persons in their homes and in regard to their personal property, however, it is complete as soon as the intrusion is made. This dual nature is at the heart of a debate about whether the crime of burglary ought to be abolished, leaving its elements to be covered by attempt or as aggravating circumstances to other crimes, or retained and the grading schemes reformed to reflect the seriousness of the individual offense.—McCord and McCord.
In effect piling an inchoate crime onto an inchoate crime, the possession of burglary tools with the intent to use them in a burglary is a serious offense, a felony in some jurisdictions. Gloves that a defendant was trying to shake off as he ran from the site of a burglary were identified as burglar's tools in Green v. State (Fla. App. 1991).—McCord and McCord.