Also known as: pre-attempt crime · preattempt crimes · inchoate offenses
Written by attorneys · grounded in primary & secondary sources — see below
Inchoate offenses consisting of solicitation and conspiracy that precede the attempt stage in the progression toward a completed crime. At common law these offenses are treated as preliminary misdemeanors that merge into any completed felony accomplished by the defendant or another participant in the scheme.
Pablo Perez recruited two seasonal workers to steal pesticide from a neighboring farm and cut part of the perimeter fence to aid the plan. The workers later entered by another route and completed the theft. Under the merger doctrine Pablo's solicitation and attempt conduct are absorbed into the completed felony so that he faces liability only for the theft itself.
Patrick Phan agreed with a coworker to download proprietary designs and solicited a third employee to assist with server access. The coworker later transmitted the files without further involvement from Patrick. Patrick's pre-attempt conduct merges into the completed theft so that separate conspiracy liability is barred.
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Solicitation and conspiracy qualify as pre-attempt crimes. These offenses arise before any substantial step toward commission of the target crime and are treated as preliminary misdemeanors.
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The merger doctrine absorbs solicitation and conspiracy into the completed felony. The defendant may be convicted only of the completed crime and not of the separate inchoate offenses.
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Factual impossibility does not bar liability for solicitation. The offense is complete once the defendant requests another person to commit the crime with the required intent.
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Conspiracy merges into the completed felony when another participant in the scheme finishes the offense. Separate conviction for conspiracy is therefore barred.
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…the Government must demonstrate that the defendant acted with a purpose to aid the enemy. Another such example is the law of inchoate offenses such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocuous behavior. In a general sense, "purpose" corresponds loosely with the…