Allegations dog Chicago Police Department's Special Operations Section -- chicagotribune.com

1. Allegations dog Chicago Police Department's Special Operations Section -- chicagotribune.com

2. Inchoate Offenses

3. Inchoate Offenses • Solicitation • Conspiracy • Attempt

4. Inchoate Offenses • 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" 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.

5. Inchoate Offenses • 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.

6. Inchoate Offenses • Solicitation

7. Inchoate Offenses • Solicitation • Solicitation 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.

8. Inchoate Offenses • Solicitation •     Solicitation (specifically the actus reus of it) 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.

9. Inchoate Offenses • Solicitation • The elements of solicitation 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

10. 720 ILCS 5/8‑1) (from Ch. 38, par. 8‑1)     Sec. 8‑1. Solicitation. (a) Elements of the offense. A person commits solicitation when, with intent that an offense be committed, other than first degree murder, he commands, encourages or requests another to commit that offense.

11. Inchoate Offenses • CONSPIRACY

12. Inchoate Offenses • Conspiracy • The essence of conspiracy 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.).

13. Inchoate Offenses • Conspiracy •     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.

14. Inchoate Offenses • CONSPIRACY • The elements of conspiracy 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

15. Inchoate Offenses • CONSPIRACY • Defenses and Other Issues: 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.

16. Inchoate Offenses • CONSPIRACY • (720 ILCS 5/8‑2) (from Ch. 38, par. 8‑2)     Sec. 8‑2. Conspiracy.     (a) Elements of the offense. A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co‑conspirator.     (b) Co‑conspirators.     It shall not be a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:         (1) Has not been prosecuted or convicted, or         (2) Has been convicted of a different offense, or         (3) Is not amenable to justice, or         (4) Has been acquitted, or         (5) Lacked the capacity to commit an offense.

17. Inchoate Offenses • Attempt • Criminal attempt, 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.

18. Inchoate Offenses • Attempt • The elements of attempt 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 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

19. Inchoate Offenses • Attempt • (3) failure to consummate the crime -- the 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

20. Inchoate Offenses • Attempt • (720 ILCS 5/8‑4) (from Ch. 38, par. 8‑4)     Sec. 8‑4. Attempt.     (a) Elements of the Offense.     A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.     (b) Impossibility.     It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.

21. CRIMINAL OFFENSES(720 ILCS 5/) Criminal Code of 1961.      (720 ILCS 5/Tit. III Pt. A heading) PART A. INCHOATE OFFENSES

22. Parties to a Crime • An accomplice is someone who knowingly, voluntarily, and with common interest, participates in the commission of a crime, and can be charged with the same crime(s) for which the accused will be tried; complicity means association in a wrongful act; principal means anyone involved in committing a crime; an accessory before the fact aids, incites, or abets but is not physically present; an accessory after the fact receives, comforts, relieves, or assists a felon to avoid apprehension and conviction.

23. Parties to a Crime •   In accomplice law (complicity), the statutory law has evolved much beyond the common law, and the case law is extensive and confusing about exactly where the lines are drawn. Complicity is a concept that can be abused by prosecutors. Only a few basic restrictions exist: (1) the law does not recognize accomplices to any misdemeanor or the crime of treason; (2) an accomplice must normally be physically present during commission of the crime, but advice or words of encouragement beforehand as well as providing material assistance afterwards will create a liability; (3) no one can be convicted on the uncorroborated testimony of an accomplice alone; and (4) persons giving postcrime aid are punished less severely than those furnishing precrime aid.

24. Parties to a Crime • Being an accomplice is NOT the same as: • accessory after the fact -- this remains, in some jurisdictions, a separate and less serious offense for giving aid and comfort (harboring) to a fugitive. The law sees it as a separate offense because it's really helping someone avoid arrest or escape punishment more than helping someone commit a crime. Accessories always have a claim to less punishment. • conspiracy -- conspiracy is a completely different crime; according to the Pinkerton rule, a person can be charged with both conspiracy to commit a crime and the crime itself under the law of accomplices (Example: two people agree to commit murder, and one acts as a lookout while the other kills somebody; both can be charged with conspiracy to commit murder and murder itself). • facilitation or solicitation -- these are separate offenses, related to the ideas, respectively, of making it easier for someone to commit a crime and enticing someone to commit a crime that never occurs (Examples: aiding a juvenile who is used in crime to limit someone's exposure to prosecution; soliciting a prostitute; of the two, facilitation is closest to accomplice law).

25. There are three (3) elements to accomplice liability:(1) proof that someone committed the underlying crime -- it is not necessary, however, for the government to have tried and convicted somebody, or even that the principal is identified; proof in this sense means probable cause that a crime was committed.(2) actus reus -- accomplice law eases the requirement of proving actus reus, but it does so with hard-to-define words. Words such as "aid", "abet", "assist", "counsel", "induce" or "incite" may have different meanings depending upon what jurisdiction you're in. Normally, you can't be considered as an accomplice simply for being there -- you must be constructively present -- this is known as the Mere Presence rule, but there are exceptions in places with Good Samaritan laws where you can be tried as an accomplice for just standing there and watching someone get beaten, e.g.

26. Case law has ruled the following are examples of accomplice actus reus:acting as a lookoutproviding guns, supplies, or instruments of crime (even under color of financial transaction if seller is aware of purpose)driving a getaway vehiclesending the victim to the principalpreventing warnings from reaching the victim (but not merely failing to disclose the occurrence of a crime to authorities)(3) mens rea -- this is the element that it all boils down to in obtaining a conviction for being an accomplice. All the words used in accomplice law ("abet" for example) carry an implication of purposive attitude toward the crime. Other courts have held to a less strict standard than "purposively" (even thought the MPC recommends this only) such as "knowingly" but still other courts have allowed "recklessly".

27. Case law has ruled the following are examples of accomplice mens rea:an intent that the crime be committed; an affirmative desire to see it doneknowledge that they are contributing to the commission of a crime, knowing that the outcome would have a dangerous result or criminal consequencesrecklessness and negligence under such circumstances as to indirectly benefit or share in the financial proceeds of the crime; a "stake" in the outcome

28. There are three (3) ways to offer a defense to the crime of being an accomplice:(1) Mistake of fact -- this is not the same as "I didn't know it was a crime" (mistake of law) but a mistake of fact good faith claim because of the way a person perceives the world and makes reasoned judgments(2) Abandonment -- the complicity was abandoned in a timely manner; the accomplice terminated their participation either completely or in part such as to deprive the principal of effectiveness at committing the crime; "I didn't help so they could get caught and learn their lesson"(3) Withdrawal -- the complicity was repudiated voluntarily (not merely because of a fear of getting caught); "I didn't help because it was wrong"; some attempts are made to neutralize or thwart the crime such as by notifying authorities

29. (720 ILCS 5/Art. 5 heading) ARTICLE 5. PARTIES TO CRIME