Concept
Solicitation and Conspiracy Compared
Merger of Attempt into the Completed Offense
Solicitation and Conspiracy Compared
Attempt is one of three inchoate offenses. The other two are solicitation (asking another person to commit a crime) and conspiracy (agreeing with another person to commit one), and both also punish conduct that stops short of the target crime. Placing them beside attempt shows how the merger rule is built, because the three do not behave alike once the target crime is completed. Solicitation merges into the completed crime in the same way attempt does, while conspiracy, in most American jurisdictions, does not.1
The pattern follows from one question: does the inchoate offense punish something that the completed crime does not already account for? Attempt and solicitation are each an earlier stage of a crime that was then finished, so once the crime is complete, the wrong they punish has been realized in the larger offense. Conspiracy rests on an agreement among several people, and courts have treated that agreement as a danger of its own that remains after the target crime is committed. The two subsections below apply that question to each offense in turn, beginning with solicitation.
Solicitation Merges Like Attempt
Where solicitation is itself a crime, a defendant who solicited another person to commit an offense cannot be convicted of both the solicitation and the completed offense once the person solicited carries it out.2 The reason matches the reason for the attempt rule. Solicitation punishes the request because of the risk that the target crime will follow, and the completed crime is that risk come true. A second conviction for the request would punish the same danger again after it had become the harm itself. In the ordinary case the request is also how the solicitor becomes responsible for the completed crime, so proof of the solicitation already lies inside the proof of the completed offense. That gives the solicitation the structure of a lesser included offense absorbed into a more serious one.3
The bar depends on completion and on nothing else. If the person solicited refuses or never acts, no completed crime exists to absorb the solicitation, so the solicitation conviction stands alone, just as an attempt stands alone when completion is not proved. Two scenes that differ in one fact show the line.
Students sometimes assume that merger requires the defendant to have personally committed the completed crime. The bar turns on whether the solicited crime was completed, not on who completed it. A solicitor who never goes near the store is still barred from a second conviction for the request once the burglary that was requested has taken place. On an exam stem, first ask whether the person solicited actually carried out the crime. If so, the solicitation drops out, and if not, it remains.
Conspiracy Does Not Merge
Conspiracy departs from this pattern. In most American jurisdictions a conspiracy and the crime that was its object are separate offenses, so a defendant who agrees to commit a crime and then commits it may be convicted and punished for both.5 The result can seem odd, because conspiracy once merged into the completed felony just as attempt and solicitation did. At common law conspiracy was a misdemeanor, and because felonies and misdemeanors were tried under significantly different procedures, a conspiracy that was carried out as a felony was absorbed into the felony. Proof of the felony then barred even a conviction for the conspiracy.6 The procedural justification no longer exists, and the merger doctrine was abandoned for conspiracy.7 Two further consequences follow: a conspiracy conviction cannot be obtained on a charge of the completed crime, and acquittal of the object crime does not bar a conspiracy conviction.8
That history raises a question, since the common-law reason is gone for all three inchoate offenses and yet attempt and solicitation still merge. The answer is that the modern bar for those two rests on the lesser-included logic taught earlier, and the felony and misdemeanor gap plays no part in it. An offense merges only if it consists entirely of some of the elements of the greater one. Attempt requires an intent and acts that the completed crime also contains. Conspiracy requires an agreement between two or more people, which the completed crime does not require, and the completed crime requires a result that conspiracy does not. Neither list of elements sits inside the other, so conspiracy is not a lesser included offense of its object crime.9 The offense is also complete once the agreement is reached, so it never depended on the target crime being finished.10
The argument for cumulative punishment is that a collective criminal agreement presents a greater threat than the same wrongdoing by one person. Concerted action makes it more likely that the object will be reached, lowers the chance that any member will turn back, makes more complex ends possible, and raises the odds of unrelated crimes, so the danger is not confined to the immediate objective.11 The drafters of the Model Penal Code answered that when conspiracy is criminal only because its object is a crime, the measure of its danger is the risk that the crime will be committed, so it is meaningless to call the preliminary combination more dangerous than the completed offense. They would allow cumulative sentences only where the combination had criminal objectives reaching beyond the offenses actually committed, and only a minority of modern recodifications follow that view.12
This contrast sharpens the reason for the attempt rule. Attempt merges because it adds nothing that the completed crime lacks, and conspiracy survives because the agreement is something the completed crime does not contain. A student who groups the three inchoate offenses together will therefore get one of them wrong, since conspiracy is the one inchoate offense that survives completion of the target crime in most jurisdictions. On an exam stem, merge attempt and solicitation into the completed crime, keep the conspiracy count, and note the minority approach only if the stem points to it.
Solicitation Merges Like Attempt
The merger rule that removes an attempt once the target crime is finished also governs solicitation, the offense of asking or urging another person to commit a crime. Where solicitation is itself a crime, a defendant who solicited an offense cannot be convicted of both the solicitation and the completed offense once the person solicited commits it.14 The elements of solicitation belong to a separate discussion. The question here is how the offense relates to the crime it was aimed at: the request is the first step on a path, and the completed crime is the end of the same path.
Merger is the absorption of a lesser included offense into a more serious offense when a defendant is charged with both, and it keeps one course of conduct from producing two convictions.15 The attempt rule rests on that logic, and solicitation fits it for the same reason. Solicitation punishes the request because of the risk that the target crime will follow, and a completed crime is that risk come true. In the usual case the request is also the conduct through which the solicitor becomes answerable for what the other person does, so proving the completed offense against the solicitor already proves the request. A second conviction would therefore punish the danger once as danger and again as the harm it produced. The bar also removes a temptation on the prosecution's side, since without it each stage of one criminal undertaking could be filed as its own count.
That reasoning depends entirely on completion. If the person asked refuses or never acts, no completed crime exists to absorb the request, so the solicitation is the only offense proved and it supports a conviction, just as an attempt stands when completion is not proved. The two scenes below differ in a single fact, whether the person solicited carried out the burglary.
Students sometimes assume that merger requires the solicitor to have committed the completed crime personally. The bar applies once the solicited crime is completed, whoever completes it, so a solicitor who never goes near the store is still barred from a second conviction for the request after the requested burglary has occurred. On an exam stem, the first question is whether the person asked actually finished the crime. If so, the solicitation drops out and the completed crime remains; if not, the solicitation conviction stands. Conspiracy behaves differently once the target crime is complete, as the next subsection shows.
Conspiracy Does Not Merge
Conspiracy is the inchoate offense that breaks the pattern set by attempt and solicitation. In most American jurisdictions, a conspiracy and the crime that was its object are separate and distinct offenses, so defendants who agree to commit a crime and then commit it may be convicted and punished for both.17 A two-person drug-dealing team that sells narcotics can therefore be convicted of conspiracy to distribute and of distribution, yet cannot be punished for both attempted distribution and distribution.18 The result looks odd at first, because conspiracy once merged into a completed felony just as attempt and solicitation did. The way to see why it no longer does is to start with the reason it merged.
At common law nearly every conspiracy was a misdemeanor, the one exception being conspiracy to commit treason.19 Felonies and misdemeanors were tried under significantly different procedures. In Callanan v. United States the Supreme Court described the difference: a defendant tried for a misdemeanor was entitled to counsel and a copy of the indictment, advantages unavailable in a felony trial, so no conviction was permitted for the constituent misdemeanor on an indictment charging the felony.20 A conspiracy carried out as a felony was therefore said to merge into that felony. Punishment could not be imposed for both, and proof of the felony barred even a conviction for the conspiracy.21 That explanation also marks the doctrine's limits, since merger depended on the procedural gap and did not operate when the completed offense was itself a misdemeanor or when a statute made conspiracy a felony.22 As the procedural differences faded, the doctrine lost its function and was abandoned.23
Once merger is gone, the conspiracy and its object are treated as two crimes, and three consequences follow:
- A conspiracy conviction cannot be obtained on a charge of the completed crime.24
- Acquittal of the object crime does not bar a conviction for conspiracy to commit it.25
- The defendant may be convicted and punished for both the conspiracy and the completed offense.26
The separate treatment also tracks what each offense punishes. The act of conspiracy is the agreement itself, which may be explicit or implicit, and the offense is complete once two or more people reach that agreement, even if they take no further step toward their goal.27 Attempt is different because the completed offense already contains everything attempt punishes, so the attempt is absorbed once the crime is proved.28 The completed crime can be committed by one person acting alone, so proving it does not exhaust what the conspiracy count punishes, which is the agreement among several people.
Whether cumulative punishment is sound policy is a separate question, and two positions answer it differently. The majority position rests on the danger of group crime. In Callanan the defendant was convicted of conspiracy to obstruct commerce by extortion and of the substantive offense of obstructing commerce by extortion, and the Court affirmed consecutive twelve-year terms on the two counts.29 The reasoning was that a criminal partnership threatens the public more than an individual's wrongdoing does. Concerted action makes success more likely, makes it less likely that any member will turn back, makes more complex ends attainable, and makes unrelated crimes more likely, so the danger is not confined to the immediate objective.30
The drafters of the Model Penal Code rejected that argument as applied to conspiracy as such. When a conspiracy is criminal only because its object is a crime, the danger it measures is the risk that the crime will be committed, so it makes no sense to call the preliminary combination more dangerous than the completed offense. On their view, cumulative sentences become appropriate only when the combination had criminal objectives reaching beyond the offenses actually committed. The Code so provides, but only a minority of modern recodifications follow it, so the majority rule stays the default answer unless a stem points to a code built on the Model Penal Code.31
Students lose this point by treating the three inchoate offenses alike, when only attempt and solicitation drop out once the target crime is proved. On an exam stem, first look for an agreement between two or more people. If one is present, keep the conspiracy count beside the completed offense and merge any attempt or solicitation count into it. Then check whether the stem signals a code that follows the Model Penal Code, and if so, ask whether the agreement aimed at more than the crime actually committed.