Intent as Offense: Inchoate Crimes

The concern with criminal intent continued apace as the develop­ment of inchoate crimes greatly expanded the law's reach. Incho­ate (or nonconsummate) crimes were offenses of intent.

Crimes of preparation were inchoate offenses. Possessing other­wise harmless items might be illegal if it indicated criminal intent: implements of forgery, counterfeiting, arson, or burglary (screw­drivers, pliers, crowbars, and other tools found in most cellars); narcotics and their paraphernalia; certain kinds of arms (sawed-off shotguns, automatic weapons, tear gas, even toy weapons); gambling devices; and pornography.¹⁰⁰ New York law eventually recognized

153 distinct possession offenses. In 1998, one in five prison sen­tences there was for possession. A highly flexible charge, construc­tive possession, a form of second-order offense, could be leveled against even those who happened to be in the car or house where the implicated items were found.¹⁰¹

Lying in wait, searching, following, and enticing were crimes of preparation.

Pursuing inchoate offenses was integral to the state's hope of pre­venting crime. The earlier the authorities intervened, getting out in front of the act, the less damage ensued. Attempts, solicitation, and conspiracy were inchoate crimes—acts aiming to bring about another offense. Criminalizing even unsuccessful efforts at crime, penal codes developed separate provisions for attempts. Conspiracy reached back even further than attempts into the preparatory chain of events leading from intent to commission.¹⁰⁶ Solicitation and incitation, in turn, delved still earlier than conspiracy, criminalizing what may have been only hot air.

Yet intervening earlier in the causal chain threw up problems. Was an intent to commit a crime itself an act? If so, was it culpa­ble? Or were intentions merely states of mind that accompanied the legally pertinent behaviors?¹⁰⁸ Either way, how did one know of intent except as expressed in acts? How far up the causal nexus of events could one reasonably assign guilt? Was a daydream, a fan­tasy, or a stray thought of causing harm culpable? Which thoughts were actually dangerous, which harmless musings? How far down along the progression from conception through planning to execu­tion did the offender become guilty? Most agree that, having fired a shot, even if it missed, the would-be assassin was guilty at least of an attempt. But what about renting the hotel room with the neces­sary sightlines, buying the gun, taking target lessons, discussing the killing with others, hatching the idea, or even just at first forming a dislike of the victim? At what point did intent move from wishful thinking, fantasy, or desire to become the beginning of the act?¹⁰⁹

Conversely, how far down the chain of events did renunciation or repentance still absolve the inchoate offender? Having occurred, few ordinary crimes were expunged by an offender's change of heart. A thief who returned a stolen object, even before its absence was discovered, was still guilty of larceny.¹¹⁰ Some jurisdictions exon­erated those who voluntarily broke off and thus prevented a crime that was being conspired about, prepared, or attempted.¹¹¹ With crimes of intent, renunciation could in practice exonerate, so long as no one else knew about it. But up to what point did renunciation get the potential offender off the hook? The closer to mere intent the law intervened, the more a change of heart had to be allowed for.¹¹²

What if the intended crime was conditional on other events that affected its likelihood? Did that diminish liability? Agreeing to murder someone if you won the lottery: Was that an attempt, regardless of the vanishingly small chances?¹¹³ Since actual harm was not required for culpability, ambiguities multiplied.

Was intent itself culpable? Inchoate crimes punished not the final offense but the intent to commit it or something close to that. Anglo-American law has tended to require an act, refusing to pun­ish mere intent. Whether a treasonous intent alone, as suggested in the English treason act of 1351, was punishable without an overt act has been hotly debated. In the fourteenth century, on rare occa­sions when defendants were convicted on the doctrine of voluntas reputabitur pro facto (the intention is to be taken for the deed), in fact a completed deed was also required.¹¹⁵ The US Model Penal Code required proof of an overt act to show that a conspiracy was not just in the minds of the participants. More recent European law, in contrast, has not generally required overt acts to prove conspir- acy.¹¹6 German law regarded attempted treason as tantamount to its consummation. The Napoleonic penal code held much the same. But in 1832 this interpretation was moderated to cover only the attempt and its execution, lessening the punishment for the prepa­ratory stages.¹¹⁷

Either way, even if the first dawning intent was not punishable, very closely subsequent acts were: incitation, solicitation, conspiracy, attempts. That still distinguished even the inchoate crime from sin, which could be committed by intent alone. In the Sermon on the Mount, Christ warned that those lusting after women had already committed adultery in their hearts.¹¹⁸ In the fourteenth century, Lucas de Penna located the nub of the crime in the intent. The act was an incidental, practical feature, an external manifestation that revealed the criminal's state of mind.¹¹⁹ But how could intent be known except through act? This dilemma was touched on by the story of the schoolmaster who warned his charges, “Boys, be pure of heart or I'll flog you.”¹²⁰ Inchoate crime resembled sin in its focus on thoughts and not just acts.

Without any other way of knowing intent, acts betrayed a state of mind. The law made use of them for that purpose. Nighttime trespass, for example, automatically signaled an intent that permit­ted offenders to be punished on the spot. In eighth-century Eng­land, a stranger who left the road without signaling his presence by shouting or blowing his horn was assumed to be a thief and could be slain. In sixteenth-century Nuremberg, anyone on the street after dark could be locked up for suspected burglary. An English act of 1851 imprisoned those caught at night with lockpicking or other burglary tools.¹²³ Yet sometimes it was frustratingly difficult to pros­ecute even those whose nefarious intent was clear. According to fourteenth-century English law, someone who ambushed another seemingly with intent to kill and left him for dead had commit­ted only a trespass, subject merely to a fine. The same was true for someone who attacked with intent to rob, wounded his victim, but took nothing (probably because there was nothing to steal). How­ever obvious his intentions, someone who had as yet done nothing but lurk menacingly was indictable only as a disturber of the peace or a nightwalker. In a case in 1859, a defendant lit a match near a haystack but extinguished it once he was spotted. He was acquitted of attempted arson, though convicted of extortion.¹²⁴

Treason, as we have seen, was arguably the first inchoate crime, patterning the law of criminal attempt.¹²⁵ Treason had to be tack­led preventively since, if successful, it allowed no second chance to prosecute. Attempting, planning, discussing, possibly just think­ing treason—all were punishable.¹²⁶ Dionisius, the fourth-century ruler of Syracuse, executed a captain for having dreamed of slit­ting Dionisius's throat—for surely he contemplated assassination while awake, too.¹²⁷ The seventh-century Visigothic code punished not just overt acts against the ruler but also intent and opinion, expressed as maledictions, insult, and slander.

Attempts were classic inchoate crimes. Taking part in the run-up to a crime, anticipating its committal, thwarted offenders remained as guilty from intent as their more successful peers. A fumbler who missed the shot was arguably as much an assassin as the expert marksman who hit his target. The threat that attempters posed to society was as great—possibly more so as they tried again—as that from successful offenders. However unfair it was to punish offend­ers and attempters equally, the same sanctions for both made sense for a society seeking to protect itself. And if mere intent was cul­pable, then morally speaking would-be and actual offenses deserved equal punishment. The Nazi regime punished attempts the same as crimes, reversing the mitigation built into the imperial penal code, and this position lasted well into the postwar period. The US Model

Penal Code, too, proposed punishing attempted and executed crimes the same.¹³¹

Early states did not at first consider attempts to be crimes. Ancient China's Ten Abominations, developed in the sixth century, included plots against authorities and parents, but other systems took longer to include attempts.¹³² Ancient Egyptians recognized the intent to commit crime, regarding it a moral fault, yet punished only the act itself.¹³³ Greek law considered plotters, contrivers, and instigators of murder as willful killers but treated them leniently by allowing their burial after execution. Planning homicide was distinguished from killing with one's own hand, and the planner could be guilty of planning alone. Yet Roman law lacked even a term for attempt and prohibited only completed acts.¹³⁴ Nor did early Germanic law properly recognize attempts. Drawing a sword or knife was pun­ished as an attempt, and instigating a crime was forbidden, like the actual carrying-out. But the more general concept was absent.¹³⁵ In medieval France, someone who intending to murder managed only to wound was prosecuted merely for blows and harm. The outcome remained more important than the impetus. The penal charter of Brussels in 1229 charged archers who managed to kill with homi­cide, but merely fined them if they missed.¹³⁶

Slowly, however, intent became a determinative element. Both the Carolina in 1532 and the Ordonnance de Blois in 1579 rec­ognized criminal attempts. In the seventeenth century, the Star Chamber in England busily punished attempts, whether poison­ing or waylaying to murder.¹³⁷ By the late eighteenth century, the formal doctrine of criminal attempt existed. Defendants had ear­lier been convicted even where an offense had failed, but not on the basis of a generalized theory of culpable intent or attempt. In 1784, however, a defendant who had set a lit candle amid flamma­ble material was convicted of arson even though the house had not burned down.¹³⁸ By the early nineteenth century, solicitation was also formalized as a concept in common law. Someone who incited servants to steal from their master, for example, was guilty even if the servant refused.¹³⁹

From here, inchoate crimes were pushed back up the causal chain of events. In the mid-nineteenth century, the common law nations punished someone for an attempt only when they had performed the last proximate act to the crime itself—firing the gun, for exam­ple.¹⁴⁰ Over time, courts began to grant authorities more leeway to catch offenders before it was too late. The standards employed today are those of proximity: the dangerousness of the offenders' behavior and how close they come to accomplishing their aim. More recently, the equivocality standard has been added, gauging how dangerous offenders are by what they have already done.¹⁴¹

The doctrine of legal impossibility once curtailed too lush an efflorescence of inchoate crimes. A case in 1865 involved a man accused of stealing, but from an empty pocket, so that no theft had occurred or was even possible.¹⁴² Other cases involved abortions given to women who were not pregnant, bribes to sway court cases offered to those not actually jurors, shooting a stuffed deer out of season, guns fired into empty rooms, and the peddling of what proved to be uncontrolled substances.¹⁴³ The would-be offenders were let off the hook because they had been mistaken about what they were doing. In the twentieth century, however, legal impossi­bility was whittled down. It was thought unfair to exonerate culprits who had clearly intended to offend.¹⁴⁴ The definition of inchoate crime thus expanded as crime grew increasingly subjectified. Even if someone merely thought they were doing something illegal, then they had committed a crime.¹⁴⁵

The number of inchoate crimes has in the meantime mushroomed. Conspiracy has become more broadly defined. In England, it dated from the thirteenth century but became commonly used after the sev­enteenth. Already in the Middle Ages, unlawful assembly—defined as three or more people congregating for nefarious purposes—was outlawed.¹⁴⁶ The seventh-century laws of the Wessex king Ine deter­mined the type of criminals by the size of the group and escalated the punishments accordingly: thieves if up to seven, a band of maraud­ers if up to thirty-five, and a raid if more. Modern antiloitering laws, targeting gangs, prostitutes, or teenagers, follow this venerable tradi- tion.¹⁴7 In the thirteenth century, those who defended and supported heretics were also considered and punished as such.¹⁴⁸ Conspiracy was an elastic category. Behaviors that were legal when done alone were outlawed when undertaken collectively. No criminal action had to result; the preparation sufficed. Large-scale conspiracy charges were first leveled against workers who were using collective action to wrest concessions from employers.¹⁴⁹ Today, the US federal code specifies at least twenty-eight different forms of conspiracy. They range from agreement to commit or attempt a crime to rather more tangential connections to the offense: agreement to solicit or aid in a crime or its solicitation, attempt, or planning; aid in planning an attempt; and agreement to aid in the planning of a solicitation of a crime.¹⁵⁰

Double-inchoate offenses were once considered a conceptual tau­tology: attempts to attempt, conspiracies to conspire, and so forth. But penal codes have expanded to actions otherwise not criminalized. Attempted assault, for example, which can be legally deconstructed as an attempt at an attempt at battery, is a double-inchoate crime in several US states. A Wisconsin man who invited a child into his car for sex was not guilty of enticement since the boy did not enter the vehicle, but he could be prosecuted for attempted enticement.¹⁵¹ If possession was already a double-inchoate crime (an attempt to use), then conspiracy to possess was a triple-inchoate offense.¹⁵²

More and more statutes came to focus on intent. Making it an offense to cross state lines or to enter a building with certain goals in mind criminalized otherwise innocent actions. The offense of entic­ing a minor over the internet allowed intervention even prior to a

crime of intent, conspiracy, or solicitation.¹⁵³ Even substantive crimes have come to be phrased in inchoate terms. The British Fraud Act of 2006 criminalized the dishonest making of false representations for gain. It replaced the traditional result crime of obtaining property by deception. In the new formulation, no property need have been obtained, no loss or gain created. All that was required was the dishon­est making of a false representation that intended to cause harm.¹⁵⁴

In the new age of terrorism, inchoate offenses have been punished even when they did not go beyond preparation. Terrorists willing to strike even though they will die are unlikely to be deterred. Suicide killers date at least to the Assassins of the eleventh century—trained and motivated Shiites who attacked Sunni variants of Islam and sometimes Christians.¹⁵⁵ But as the tactic has become more com­mon, the need to deter has increased. Preinchoate, preparatory, facil- itative, associative, and other offenses only distantly connected to the act have been made actionable. Since successful suicide bombers cannot be convicted, the planners have been targeted. Indeed, even those who have not provably planned terror have faced sanctions. Britain imposed preventive detention on merely suspected terrorists. As due-process objections were raised, the rigor with which it was applied decreased. But the restrictions on possible terrorists remain far more drastic than for any other suspected offenders. Non-British terror suspects have been detained indefinitely. When that proved legally objectionable, control orders on house arrest restricted the potential terrorists' movements, communication, association, and other activities. At times, they were forcibly relocated to remote regions.¹⁵⁶

The UK Terrorism Act of 2006 prosecuted anyone preparing to give effect to an intention to commit terrorism or helping others do so.¹⁵⁷ In other words, it criminalized conduct before it even became an attempt. It also forbade giving or receiving training and being present where it took place. Such statutes went beyond making it illegal to help commit actual or attempted offenses. They prohibited activity even without a crime (a terrorist act) and where the tar­geted behaviors were unrelated to any specific act: buying maps, get­ting railway timetables or computer manuals, or asking the price of certain chemicals. Responsibility was thus imposed at a very early stage, when would-be offenders had not yet decided precisely what they intended and before the agreement required for conventional conspiracy charges.¹⁵⁸ Defining offenses widely and vaguely, the range of indictable actions has expanded. Recent British antiterror­ism legislation has punished statements that are likely to be under­stood by some of the public as direct or indirect encouragement of commissioning, preparing, or instigating terror.¹⁵⁹ Possession of money or of unspecified other property, including documents, has been criminalized if the accused intended terroristic uses of it or even thought that others might do so.¹⁶⁰ Even for other serious crimes, recent British legislation has grown studied in its deliber­ate vagueness. Those “involved” in such acts are liable: not only anyone who committed or facilitated the offense but also someone who merely “conducted himself in a way that was likely to facilitate the commission by himself or another person.”¹⁶¹

The legal net has recently expanded further into inchoate crimes of omission. Laws on crimes of omission punish those who have per­formed no act, on inchoate crimes those who have caused no harm. The two intersect to define what would seem to be the absolute min­imum form of an actus reus: harmless inaction. Inchoate crimes of omission statutes target those who fail their duty of responsibility to dependents even when, as chance would have it, no lasting harm resulted. Guardians have been prosecuted who housed dependents in filthy and unsafe conditions, who left them alone in freezing or over­heated cars, who neglected to provide medical care. Other instances include those who failed to report illegal activity, even though fortu­itously no lasting harm ensued: money laundering, environmental offenses, treason, domestic violence, or the like.¹⁶²