§ 27.01 Criminal Attempts: An Overview to Inchoate Conduct

§ 27.01 Criminal Attempts: An Overview to Inchoate Conduct¹

When a person intentionally commits a crime, it is the result of a six-stage process.² First, the actor conceives the idea of committing a crime. Second, she evaluates the idea, in order to determine whether she should proceed. Third, she fully forms the intention, i.e., resolves, to go forward and commit the crime. Fourth, she prepares to commit the crime, for example, by obtaining any instruments necessary for its commission. Fifth, she commences commission of the offense. Sixth, she completes her actions, thereby achieving her immediate criminal goal.³ In some cases, of course, this process takes only seconds to transpire; in other circumstances, the six stages may take days, weeks, or even years, to complete.

Anglo-American law does not punish a person during the first three stages of the process. Until the third step occurs, the actor lacks a mens rea. Even after the mens rea is formed, she is not punished if there is no actus reus—people are not punished for wrongful thoughts alone.

Activity in the middle ranges, i.e., after the formation of the mens rea but short of attainment of the criminal goal, is described as "inchoate"—imperfect or incomplete—conduct. Anglo-American law recognizes various inchoate offenses, the most notable of which are attempt, solicitation, and conspiracy. This chapter focuses on the inchoate crime of attempt.

Criminal attempts are of two varieties: "complete" (but "imperfect"); and "incomplete." A complete-but-imperfect attempt occurs when the actor performs all of the acts that she set out to do but fails to attain her criminal goal. For example, if d, intending to kill V, purchases a gun, loads it, drives to V's home, waits for V to arrive, and then fires the weapon at V, but misses her target, this is a complete attempt. In contrast, an incomplete attempt occurs when the actor does some of the acts necessary to achieve the criminal goal, but she quits or is prevented from continuing, e.g., a police officer arrives before completion of the attempt.

Inchoate conduct, including attempts, raise special enforcement issues that do not arise with successfully completed offenses. The earlier the police intervene to arrest for inchoate conduct, the greater the risk that suspicious-looking, but innocent, conduct (and persons) will be wrongly punished, or that a person with a less than fully formed criminal intent will be arrested before she has had the opportunity to...