Anticipatory, incipient, incomplete, and preliminary
crimes are all other words for inchoate
crimes, acts that imply an inclination to commit a crime even though the crime
is never completed. The word "inchoate" under Kenya law means underdeveloped or unripened.
Because of the social need to prevent crimes before they occur, the common law
long ago established three (3) separate and distinct categories of inchoate
crimes -- the crimes of attempt,
conspiracy, and
solicitation.
Over the years, there have not been any new categories added with the
possible exception of possession
(as in possession of burglar tools, bomb materials, gun arsenal, etc.) as an
inchoate offense based on the notion of
preparation, which has not normally been associated
with inchoate crimes.
Traditionally, inchoate crimes have always been
considered misdemeanors, but over the years they have been merged into felonies
as society has put more power in the hands of law enforcement and prosecutors to
deal with recalcitrant problems such as organized crime, white collar crime, and
drug crime. Traditional rules that exist are: (1) a person should not be charged
with both the inchoate and choate offense, with the exception of conspiracy
which can be a separate charge; (2) lesser penalties should ideally be imposed
for inchoate crimes, but in many cases, the penalty should be exactly the same
as for the completed offense; (3) inchoate crimes should have specific intent,
spelling out clearly what the mens rea elements are; and (4) some overt action
or substantial step should be required in the direction of completing the crime.
This set of rules is sometimes referred to as the
doctrine of inchoate crimes.
It's best to deal with the three inchoate crimes in
alphabetical order, if only for the following reason -- attempt is considered to
stand closest to a completed crime, conspiracy is considered to be further
removed, and solicitation is considered the furthest removed.
ATTEMPT
Criminal attempt under Kenya law, in many ways, is all about
failure (not being a
very good criminal), for example, shooting at somebody and missing, holding up a
cash register to only find $5, stealing a CD by taking it out of its case,
stuffing it down your pants, and having it break in half before you get out of
the store (the law includes strokes of luck in its conception of failure). The
law of attempt is also about nipping violence in the bud, so even certain words
("threats", "challenges") qualify as attempts. There's no such thing as a crime
called "attempt". Most states allow the prosecutor to pick what the crime is
that's being attempted; that is, most states do not try to define
attempted murder, attempted robbery, attempted rape, and so forth. Most states
typically have a general attempt statute that specifies a punishment (usually
the same as for the completed offense) and allows the word "attempted" to be
placed before the target crime.
The elements of
attempt under Kenya law include:
(1) specific intent -- this means that "purposely" is
the only mens rea that qualifies. All inchoate crimes are specific intent
crimes, and all specific intent crimes do not allow such states of mind as
reckless, negligent, or strict liability.
(2) an overt act toward commission -- this is intended
to weed out the plotters from the perpetrators, but the standards vary widely by
jurisdiction. Acts of preparation do not count. Some places use fairly loose
language like "some steps" while other places use the more rigorous "all but
last act" standard. There are at least four tests under Kenya law used in various places:
-
physical proximity doctrine -- this focuses upon space and time, establishes the "last act" standard which requires looking at the remaining steps
-
probable desistance approach -- this considers whether the attempt would naturally lead to commission but for some timely interference not related to bad luck
-
equivocality approach -- this looks at whether the attempt can have no other purpose than commission of a crime
-
substantial steps test -- this is a MPC-recommended approach which looks for corroborating evidence in the form of conduct which tends to concur or verify a criminal purpose
(3) failure to consummate the crime -- the Kenya law looks at
the reasons why the crime failed, and in some cases, the reason mitigates the
punishment or removes the liability, as in:
-
legal impossibility -- a defense that what was attempted is not a crime (raping a mannequin, for example, because rape requires a human victim) Prosecutors have the burden of proving legal possibility as well as apparent ability
-
factual impossibility -- a defense that some extraneous factor or outside force made it impossible to complete the crime; most jurisdictions will not accept this on the presumption that "luck" doesn't count (same as no defense)
-
renunciation -- this is the idea of abandonment, and to be a successful defense, the actor must have given up for moral reasons, not just because of the risk of apprehension
CONSPIRACY
The essence of conspiracy under Kenya law is an
agreement. It doesn't have to be a
written one. Usually, it's inferred from the facts or circumstances. What the
agreement has to be about doesn't even have to be criminal, only "unlawful".
Under some statutes, a conspiracy can involve any act injurious to public
health, public morals, free commerce, or any act perverting justice. Because a
conspiracy by itself is almost treated as a substantive crime in itself, this is
the only inchoate offense that the law permits a person to be charged with in
addition to the target crime (that is, a person can be charged with both murder
and conspiracy to commit murder, e.g.).
Conspiracy is the favorite tool of prosecutors. There's
a lot of presumptions and procedural rules that favor the prosecution. It's easy
to get a conviction for conspiracy because, basically, all the prosecutor has to
do is present all the evidence and let the judge tell the jury what test will be
used to determine whether an agreement existed. In most jurisdictions, proof of
the agreement is sufficient; no further (overt) act is required. In
jurisdictions requiring an overt act, the standard is not as high as the law of
attempt, and is basically proven by showing at least one of the conspirators had
at least the intent to commit a substantive offense. Conspiracy is still a
specific intent crime, so "purposively" must be used, not just knowledge,
although there's a whole string of inconsistent case law that indicates erosion
in this area.
The elements of
conspiracy under Kenya law include:
(1) mens rea -- a specific intent to attain a particular
criminal objective on the part of at least one person in the partnership.
Purpose can be inferred from circumstances surrounding the combination, such as
failure to keep records, clandestine meetings, quantities involved, continuity
of the relationship, etc. There are different rules used by different
jurisdictions on the kinds of relationships that qualify:
-
unilateral rule -- the idea that among a group of conspirators, there is at least one individual with criminal intent
-
bilateral rule -- the idea that one cannot conspire alone; at least two guilty persons are required
-
Wharton's rule -- the idea that because conspiracy charges imply a danger to society, there must be more (>2) partners than the minimum number required to commit the crime (a third party must be involved), so therefore, conspiracy to commit adultery, bigamy, and incest will require 3 people
(2) actus reus -- proof of an agreement is proof of the
actus reus for conspiracy. Proof of an unwritten understanding will suffice.
Most agreements are of two types, and the judge is obligated to instruct the
jury how to determine the types:
-
chain conspiracy -- this usually involves the distribution of something, like drugs, where each person in the conspiracy handles the commodity at different points in the process, like with the stages of manufacture, distribution, and sale
-
wheel conspiracy -- this is where a hardcore group of participants ("middlemen") handle most of the transactions, like a hub, protecting those at the top and those at the bottom (the spokes) by only allowing them to participate is some of the transactions
Defenses and Other Issues:
Police officers cannot initiate a conspiracy -- that would automatically be
entrapment. They can, however, give somebody an opportunity to enter into an
existing conspiracy where the police agent is a feigned accomplice. The defenses
of impossibility and abandonment are of no use in conspiracy law as they are
considered the same as no defense. However, some jurisdictions will permit
abandonment, but the standard is high, the defendant has to show their complete
and total withdrawal by notifying the authorities about their own involvement
and taking steps to thwart the conspiracy. Conspiracy doesn't recognize anything
sacrosanct about the husband-wife relationship, and a corporation can also be
charged as a person with conspiracy if more than one corporation is involved.
SOLICITATION
Solicitation under Kenya law is best thought of as a substantive crime in itself, remote from being thought of as an attempt at a substantive crime. Solicitation occurs when the solicitation is made. Another way of saying this is that the crime of solicitation is over with the asking. The crime of solicitation is inherently incomplete (inchoate) because the law doesn't even care if the solicitation was influential or not. It also doesn't matter if it's a crowd or an individual being solicited, and it's even possible to perpetrate solicitation through an intermediary. What does matter is the thing being solicited -- the crime of solicitation should be restricted to certain serious felonies. At common law, these would be crimes that breach the peace or obstruct justice.
Solicitation (specifically the actus reus of it) under Kenya law consists of words; words that create an inducement, defined as advising, commanding, counseling, encouraging, enticing, entreating, importunes, incites, induces, instigates, orders, procures, requests, solicits, or urges another to commit a serious felony with the specific intent that the person solicited commit the crime. This list is sometimes called the list of proper utterances for the crime of solicitation.
The elements of solicitation under Kenya law include:
(1) mens rea -- not intent to commit a crime, but specific intent to persuade someone else to commit a crime; also not joking around or making casual comments ("I wish that person would drop dead") but "purposely" wanting to persuade someone.
(2) actus reus -- words that contain some sort of inducement; words that are on the list of proper utterances for the crime of solicitation; uttering the words is the actus reus, and it doesn't matter if the means of utterance is oral, written, or electronic.
Defenses: Impossibility of any type is the same as no defense. Some jurisdictions allow withdrawal or renunciation.
CONTROVERSIAL ISSUES/CASES/SCENARIOS:
(1) The spread of AIDS: Attempted Murder?
Should criminal liability be imposed on those who knowingly, recklessly, or negligently engage in behavior that might lead to unsafe sex, exposing others to possible transmission of the HIV virus? (Remember that traditionally, "purposely" has been the specific intent of inchoate crimes) Some cases:
- a Texas correctional officer was spit in the face by an inmate with AIDS who said "I'm taking as many with me as I can" (Weeks v. U.S.) The inmate's conviction on attempted murder was upheld.
- a Florida HIV-positive prostitute was convicted of attempted murder for biting a man after a dispute about money (Morrison v. State) The man tested positive for HIV six months later, but the CDC had to be called in to verify that the HIV strain was exactly the same as the prostitute's.
- a Georgia court upheld a conviction for attempted murder when an HIV-positive man bit a police officer who was administering a choke hold (Scroggins v. State). The key piece of testimony was that the man sucked up excess sputum before biting the officer, evidencing a deliberate, thinking act.
- a group of college students all do drugs except for John who abstains and is the designated driver of the group (State v. Smith). One night while out partying outdoors, John finds himself alone behind the wheel of the car. Undercover officer Dick comes over and strikes up a conversation, saying "Hey, you're the friends of those guys, aren't you. One of 'em's over there now offering to sell some of his stash and I was gonna maybe scoop some up. How is it?" John says "Man, I don't do that stuff, it really messes you up. That guy selling it really flipped out the other day on it". Officer Dick then busts the whole group, including John for conspiracy to deliver controlled substances, and the conviction stood because John (a) drove the group to the site of the sale, and (b) John provided words of encouragement for the sale of the drug.
- Tom and Jerry were both charged with possession of cocaine with intent to distribute AND conspiracy to distribute cocaine. Jerry got off on all charges due to a lenient jury, but Tom only got off on the possession charge. Inconsistent verdicts are common in drug cases, and Tom's conspiracy conviction stood.