An inchoate crime is defined as the incomplete, incipient, anticipatory or preliminary act, which implies that a person was inclined to commit a crime but never got to the “complete” completion of committing the crime (Chapter 939, 2009). Inchoate crimes were traditionally considered misdemeanors (Incomplete [inchoate] crimes, 2007). However, as drug crime, white-collar crimes and organized crimes became more prevalent over the years and the need to empower the justice system to handle the crime, the inchoate crimes assumed a new recognition as felonies (Chapter 939, 2009). The Doctrine of Merger stipulates the rules that are to be followed by the law enforcement officer and prosecutors when handling inchoate crimes. For starters, a person can only be charged with either the inchoate crime or Choate crime, but not both. Secondly, inchoate crimes ideally attract lesser penalties than Choate crimes.

Third, the inchoate crimes should have a clear intent and the mens rea (intent) element of the same should be clearly spelled out (Inchoate Crimes. n.d.).

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The courts require that intent be distinguished from criminal negligence and recklessness. The final rule is that the inchoate crime must have a lacking substantial step in order to complete the crime (chapter 939, 2009).

Elements under common law

Initially, the common Law recognized three categories of inchoate crimes: 1) attempted crimes; 2) conspiracy crimes; and 3) solicitation crimes. Over the years however, the Common Law has accepted the unlawful possession of stolen good, or things that may pose a threat to public safety (e.g.

gun arsenal & bomb materials) as an inchoate crime. Offences based on the notion of preparation to commit a crime are also recognized as inchoate crimes. The attempt element is about the person who intended to commit a crime failing to do so for any reason, which could include human intervention or the failure on his or her part. The Inchoate law on attempt is intended to nip violence. Since there is no crime referred as “attempt”, common law as well as statutes allow the word ‘attempt’ to be put before the targeted crime (Incomplete [inchoate] crimes, 2007). Some of the doctrine applicable to the attempt element include the physical-proximity doctrine, where time and space are the main considerations, Probable-distance approach, where the court may have to decide whether the attempt would indeed have led to a crime were it not for the intervention of a third party; the equivocality approach, which examines whether the attempt could have had any other result rather than the crime; and the substantial-steps test in the penal code model, which is recommended to examine corroborating evidence in order to verify or concur a criminal intent (Incomplete [inchoate] crimes, 2007). The courts also check the reasons offered given on why the attempt did not lead to a crime. The considerations include legal impossibilities, where a case is out rightly dismissed; factual impossibilities, where the facts do not add up, and renunciation, where the defendant proves to the court that he/she abandoned his intent to commit crime for moral reasons, and may be the fear of being apprehended for the same (Husak, 2002).

Elements under current Wisconsin statute

In Sub Chapter II of the Wisconsin Statutes, the state classified inchoate crimes under three categories: Solicitation, Conspiracy and Attempt. In regard to solicitation, the statutes states that any person who advices someone else to undertake a criminal activity, with the full intention of committing a felony is guilty of an inchoate crime. Depending on the intensity of the crime committed by the solicited party, the person charged with an inchoate crime can be guilty of class H, Class F or class I felonies. Class F attracts a maximum fine of $50,000 or a 15 years maximum imprisonment or both, While Class H felonies attract a maximum fine of $10,000 or 6 years maximum imprisonment or both. Class I on the other hand, attracts a $10,000 maximum fine or 3 ? years maximum imprisonment or both (Inchoate crimes, n.d.). Under the conspiracy element in the Wisconsin Statutes, conspiracy is defined as the agreement or combination of forces by two individuals with the intent of committing a crime.

Even though one of the parties does not act to effect the object of the crime, the absent party may still be fined, imprisoned or both depending on the outcomes of the completed crimes. The only exception is when the penalty is life imprisonment, in which case the absent conspiring party is convicted of a class B felony (a maximum of 60 years imprisonment). Conspiracy can be among people who intend to commit a crime, or unilateral conspiracy, where only the defendant had the intention to commit a crime (Inchoate crimes, n.d.). The attempt element in Wisconsin Statutes is defines as the trial to commit a felon or crime. The statutes require proof that the actor had all intent to commit the crime and attain a specific result.

It must also be proven that the actor would have committed the offense were it not for the intervention of another person. The maximum penalty for such inchoate crimes includes half the applicable penalty for the complete crime or felon (Inchoate crimes, n.d.).

Comparison of elements

Under common law, conspiracy has three elements namely: 1) more than one person; 2) an agreement to undertake a crime; and 3) An open or overt plan intended to carry out the crime. Notably, conspiracy under the common law is only identifiable by the courts when at least two parties are involved (Inchoate offences, 2009).

This is unlike the Wisconsin statutes which recognize that there could be unilateral conspiracy. The provisions under common law mean that a person cannot be charged with conspiracy unless a second person agrees to be part of the crime. In this case, a proof of agreement between the two must be verified.

In Wisconsin however, the poof of agreement is not a necessary item in prosecutions. Solicitation and attempt elements do not differ under the Common law and Wisconsin statutes. Criminal attempt in both common and Wisconsin Statutes must contain the elements of specific intent, actions that proof that a person had actually initiated the first steps to committing a crime and the failure of the person to commit the crime. In a conspiracy case, any of the defendants can plead their defense by proving that they undertook all necessary actions in order to stop actions that could lead to the crime that was initially intended during the conspiracy. The Defendant can also prove that he or she tried stopping an ongoing crime, which was as a result of the earlier decision to conspire with another party. The defendant can also prove that he or she tried to convince, or halt the action of the co-conspirators by reporting the crime to the authorities (Chapter 939, 2009).

Reasons for changes in elements

The change in the conspiracy element in Wisconsin statutes was based on the question of sufficient interest that makes people in agreement co-conspirators in an action for purposes of getting “a stake” in the criminal activity. Under § 939.

31 of the Wisconsin statutes, the conduct of an individual or the agreement between people serve the same purpose when the crime is committed. Under the Statutes, a person cannot be convicted as a conspiring party and a party to “any” crime. Compared to 18 USC §371, the Wisconsin conspiracy Statute seems to address the “intent of a committed crime, while the Common law conspiracy provision seems to address the conspiring parties “to committing offences”. While distinguishing the Wisconsin statutes from the federal statutes, the Court of appeals draw the distinction on the fact that the common law statute does not consider the underlying crime objective. Instead, the common law gives a static penalty to people who conspire to commit “any” offence. § 939.31 of the Wisconsin statutes on the other hand tie the underlying crime with the conspiracy and therefore issues a penalty based on the same.

(Clerk of the United States court of Appeals for the Seventh circuit. 2004)

Suggestions for new changes

Wisconsin could consider substituting the word “criminal” in the conspiracy element with the word “unlawful”. This argument is founded on the fact that “unlawful” has a wider meaning than “criminal”. This will then allow the law enforcers to purse acts done after the conspiratorial agreement between two or more parties, which would in turn allow the authorities to uncover the original conspiring agreement.


The burden of proof in inchoate crimes largely lies with the prosecutor who must prove to the court that indeed there was an inchoate crime that was committed. This is not always easy, especially because the prosecutor is required to prove that the defendant intended to commit a crime, but the crime was in reality not committed.


Chapter 939.

(2009). Crimes- General provisions. Retrieved March 22, 2010 from:http://www.

pdf Husak, D. (2002). The Criminal law as lat resort. Retrieved March 22, 2010 from:

pdf Inchoate Crimes. (n.d.). Preliminary Draft No. 2.

Retrieved March 22, 2010 from http://arcweb.sos.state.or.

us/legislative/crimlaw/ARTICLE6/PD2DEC692140.pdf Incomplete [inchoate] crimes. (2007). “Be not ashamed of mistakes, and thus make them crimes”. Retrieved March 22, 2010 from: Inchoate Offences (2009).

Conspiracy, § 939.31 – Impossibility of Fulfilling Objective. Retrieved March 22, 2010 from: http://www. Clerk of the United States court of Appeals for the Seventh circuit.

(2004). United States of America v. Miscellaneous Firearms, Explosives, Destructive Devices and Ammunition. Retrieved March 22, 2010 from


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