Notes and Questions - MPC Comment to Article 5

1. Professor Ira Robbins has noted: 

The inchoate crimes of attempt, conspiracy, and solicitation are well established in the American legal system. “Inchoate” offenses allow punishment of an actor even though he has not consummated the crime that is the object of his efforts. * * *

Most American jurisdictions treat inchoate offenses as substantive crimes, distinct and divorced from the completed crimes toward which they tend. Accordingly, attempt, conspiracy, and solicitation are defined broadly to encompass acts leading to the commission of any completed crime. Rather than try to enumerate every act to which inchoate liability attaches, however, legislatures have enacted relatively short statutes containing abstract conceptual terms with universal application. The Model Penal Code’s provision for attempt liability, for example, represents a middle-ground approach to this problem. It prohibits an act that constitutes a “substantial step” toward the completed offense. The Code then fleshes out the abstract term “substantial step” by listing several nonexclusive examples that have application to numerous completed crimes. It has fallen to the courts to elaborate on the scope of inchoate offenses and decide when to administer them.

Thus, the concept of substantive inchoate crimes, by requiring a high degree of judicial interpretation, has vested great discretion in the judiciary. This discretion is similar to that of earlier courts in creating common-law offenses. In both circumstances, the court analyzes the policies underlying the criminal law and decides whether those policies require courts to punish certain acts.

2. Professor Robbins goes on to explain that inchoate offenses are often broadly and abstractly defined, which leaves quite a bit of leeway for judicial interpretation:

The Model Penal Code's provision for attempt liability, for example, represents a middle-ground approach to this problem. It prohibits an act that constitutes a "substantial step" toward the completed offense. The Code then fleshes out the abstract term "substantial step" by listing several nonexclusive examples that have application to numerous completed crimes. It has fallen to the courts to elaborate on the scope of inchoate offenses and decide when to administer them. Thus, the concept of substantive inchoate crimes, by requiring a high degree of judicial interpretation, has vested great discretion in the judiciary.

 Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 3–4 (1989)

3. After reading the excerpts by Professor Robbins, what are the best arguments in favor of punishing inchoate crimes? What are the types of harm that punishment of these crimes seeks to avoid? How does this map on to our four main justifications for punishment? Are there any that do not apply? 

4. Have you looked up the definition of “inchoate”? Do you find that the definition of inchoate lends itself to ambiguity? How can we resolve this ambiguity? What are some ways in which this ambiguity might resolve itself in unequal ways? 

5. Given that law enforcement officers have to make decisions based on limited information, doesn't this lend itself towards systematic or implicit biases? What might we do to prevent this? Do inchoate crimes necessarily risk punishing people for “bad thoughts” or “suspicious looking behavior?”