Attempt and Other Inchoate Crimes

Attempt and Other Inchoate Crimes

The merger discussion so far has paired an inchoate offense with the completed crime it was aimed at. A second pairing arises when the prosecution charges attempt together with another inchoate offense, such as conspiracy or solicitation, and both were aimed at the same target crime. This problem needs no completed crime at all, because it arises just as readily when the burglary never happened and the prosecutor is holding two preliminary counts. The Model Penal Code resolves it with a limit on counting: a defendant may not be convicted of more than one inchoate crime for conduct designed to culminate in the commission of the same crime.¹ Some state statutes reach a similar result by barring a conviction for an attempt together with another inchoate crime that has the same objective.² The bar is therefore a Model Penal Code rule and a feature of particular state statutes, so an answer should first identify which regime the facts supply instead of treating it as a universal common-law rule.

The limit has two operative parts, a single target crime and a single inchoate conviction, and both follow from what an inchoate offense punishes. Attempt, conspiracy, and solicitation each reach conduct that has not yet produced the target crime, and each is justified by the risk that the target crime will be committed. The Model Penal Code's drafters reasoned this way about conspiracy: the danger of a preliminary offense is measured by the risk that it will culminate in the offense it aims at, so it is meaningless to call the preliminary stage more dangerous than the consummation.³ If one course of conduct was designed to culminate in one burglary, then an attempt count and a conspiracy count measure the same risk twice, and the second conviction records no danger that the first had not already recorded. The limit also removes a temptation from the prosecution's side. Without it, the government could take a single plan and file it under several inchoate labels, collecting a conviction for each and inflating the apparent seriousness of what is, in substance, one threat to commit one crime.

Tying the limit to the target crime also explains where it stops. The same drafters acknowledged that a criminal combination may have objectives that go beyond any particular offense, and in that situation they thought cumulative sentences ought to be permissible.⁴ Inchoate offenses aimed at two different crimes measure two different risks, so the one-conviction limit has nothing to combine. The pair of situations below differs in a single fact, the identity of the second target.

The usual mistake on an exam stem is to run the elements comparison from the lesser-included analysis and stop there. A conspiracy requires an agreement between two or more people, which an attempt does not require, and an attempt requires conduct approaching the crime, which a bare agreement may not supply. Neither offense is a lesser included offense of the other, so the elements test alone would let both convictions stand. The Model Penal Code limit asks a different question, namely what crime each inchoate count was aimed at, and the shared target crime controls, whatever the element lists show. The difference from the earlier bar is also worth fixing in mind, since that bar operated once the completed crime was proved, while this limit applies even when the target crime was never completed.