Impossibility in Related Offenses

Impossibility in Related Offenses

Attempt is one of three inchoate offenses, the crimes that can be complete even though the harm the law ultimately aims to prevent never occurs. The other two are solicitation and conspiracy.¹ Each concerns conduct designed to culminate in a substantive crime that, in the particular case, did not culminate, so the same question recurs: what follows when the objective could not be reached?² This section carries the attempt analysis across only briefly, because solicitation and conspiracy have readings of their own where their elements are taught. The rule against an impossibility defense travels to both offenses, and in conspiracy it travels farther than it does in attempt.

Solicitation means asking or urging another person to commit a crime, and the solicitor's culpability is fixed by the purpose behind the request and the circumstances as the solicitor believed them to be. When the person asked turns out to be an undercover officer who never meant to go along, the solicitor's purpose was just as culpable as it would have been had the listener been a willing accomplice. The only missing ingredient is the response the solicitor expected, and the Model Penal Code's commentary on Article 5 treats a withheld response of that kind as a fortuity, since excusing the actor on that ground would treat similar wrongdoers unequally for reasons that have nothing to do with their culpability.³ That reasoning matches the modern attempt rule, under which impossibility is no defense when the defendant's actual intent was to do an act or bring about a result the law forbids.⁴ Factual impossibility is therefore no defense to solicitation.

Conspiracy reaches the same answer by a shorter road. The standard illustration arises in a jurisdiction where pregnancy is an essential element of abortion: A and B plan an abortion on C, a police agent who falsely told them she was pregnant.⁵ No pregnant woman exists, so the completed crime was impossible, yet courts have held that a conspiracy to commit abortion may exist even when, unknown to the conspirators, the woman was not pregnant.⁶ The same has been held for a conspiracy to murder where the person the others expect to carry out the killing is really a government agent, and for a conspiracy to rape a woman believed to be unconscious who was in fact dead.⁷

Courts are less receptive to impossibility in conspiracy than in attempt because the two offenses look at different things. In attempt the inquiry centers on the defendant's conduct and how close it came to the completed crime, so impossibility once suggested conduct that was innocuous because it never came near the harm.⁸ A conspiracy charge focuses primarily on the parties' intent and their agreement, and the danger it addresses does not depend on the success of any one plan, since a group organized for criminal purposes is a continuing focal point for further crimes, related or unrelated to the one immediately planned.⁹ Once the danger is located in the group, the failure of one objective says little about whether the group is dangerous, and the argument that impossibility shows harmlessness loses most of its force. The conspiracy cases accordingly skip the long sorting of factual from legal impossibility found in attempt and usually hold that impossibility of any kind is no defense, which means that even a jurisdiction retaining the hybrid defense for attempt has good reason to refuse it for conspiracy.¹⁰ A few decisions allow the defense, but they rest on importing the attempt cases or on entrapment.¹¹

The simple rule has one qualification, and it is the same for all three offenses. True legal impossibility, where the defendant believes conduct is forbidden that the law does not forbid, remains a defense to attempt, conspiracy, and solicitation.¹² In conspiracy this only means that the requisite criminal objective is missing: the parties agreed to do something that is not a crime, so there is no criminal object to have agreed upon.¹³ Solicitation works the same way, because a request to do something lawful asks for no crime.

A different kind of acquittal looks similar and rests on another ground entirely.

That result rests on a legislative exemption and has nothing to do with impossibility, though it shows what can defeat solicitation liability when a mistake about facts cannot. Conspiracy follows the same pattern: a person in a legislatively protected class who could not even be an accessory to the objective crime is not guilty of conspiring to commit it.¹⁴