Inchoate Crime: Attempt


Inchoate crimes can be defined as criminal situations where a person is perceived to be prepared to commit more wrongdoing (Ashworth and Horder, 2013). There are many situations that a person may be in and may make the law believe that the person intends to commit a crime. The main role of the government is to make sure that the number of crimes is reduced. Furthermore, it is the role of the government to watch out for the people who are likely to commit these crimes. Thus, it means that the government has the authority to take action against a person who commits inchoate crimes.

The prosecution of these crimes is a hard task. This is because of the reason that sometimes it may be difficult to identify a person who is likely or who has the capacity to commit a crime. There are three main inchoate crimes that have been listed by the law in Texas, namely: solicitation, attempt, and conspiracy


Description of the elements of the crime under historical common law

In historical law, the attempt was not a crime. The reason that was given was that a person who harbored thoughts of committing a crime or presented himself in a manner likely to suggest that he may commit a crime was not dangerous until he actually committed the crime (Duff, 1996). With time, however, the law started to evolve. A person would be convicted of a crime if they actually try to commit the crime and most of these end up causing serious harm to the target.

Description of the elements of the current state statute for that crime

The attempt can be defined as not only the intention of a person to commit a crime but also an effort that is put in place by the person intending to commit the crime. A person can therefore be convicted of an attempt if the government can find that the actions taken by this person have gone beyond doubt and seem to be thinking about committing this kind of crime. In criminal law, it is referred to as men’s rea (Ashworth and Horder, 2013). At this point, it does not matter if the action went until its intended completion. Of more importance is that it went beyond just a thought.

With the descriptions above in mind, it gets difficult in some instances to decide what should be judged as an attempt and what should not make the list. For example, if a person purchases a firearm, one can be said to be guilty of an attempt. The reason for this is that one has already gone past a stage of just thinking and has taken the first step of buying the firearm. When a person shoots and injures someone, but does not kill him, then the individual is guilty of an attempt. The reason is the same as above; he has gone beyond just thinking about the crime. There are certain instances that may not solicit obvious judgments. For example, when a person decides to collect gadgets that can be used for breaking into safes or locks. There is no direct evidence that can point to the fact that this person actually plans to break into safes.

A comparison of how the elements of the crime have changed from the historical common law to the current state statute

There exists one major similarity between the current law and the past one regarding attempt; its definition and whether to treat it as a crime or not is somehow different. Thoughts are still not seen as crimes. When a person conceives the idea to commit a crime, he cannot be convicted of it since one has not taken any step towards it. In the past, this was the case (Cahill, 2011). The only difference was that in the past, if a person took a step towards committing the crime, but no harm was accused in the process, he could not be convicted of a crime. Take the example of a person who purchases a firearm. In the past, no action would be taken against this person. There are many reasons this person may have decided to purchase the firearm, such as to protect him. The law could only take action against this person after he has used the firearm to harm someone else and if handled carelessly.

Another difference between the current law and the historical one is that there now exists what is referred to as an attempted act. This is a guideline that is used by the court system in America, the state of Texas included, deciding whether a person can be convicted of an attempt or not. The act consists of a set of tests that are used to measure the degree to which a person is guilty of an attempt. The first one is the proximity test. This is a test that is used for the determination of how far a person is to complete the crime (Simester, Spencer, Sullivan, & Virgo, 2014). This means that if the actions that the person has taken towards completing the crime are more than what he has not done, then the person is guilty of the crime. If on the other hand, the person has only done a little and there remains so much more to be done before the crime is completed, then the person is not guilty of the crime. The Probable Desistance Test is used to determine how far a person has gone in his quest to commit the crime. It, therefore, provides a line that if the person crosses; it means that the probability of them backing away from committing the crime is less. Therefore, he is guilty of an attempt.

A discussion of possible reasons for the changes

One of the most probable changes is the difficulty in the definition of the term ‘attempt’ (Westen, 2013). There are many types of crimes that people can commit. Sometimes a person may take a certain action innocently but when viewed through the eyes of the law, they seem like a step being taken towards committing a certain crime. It means that some actions may have two faces and thus makes it is hard for the law to determine which of these faces it will use in making decisions.

Suggesting new changes in the statute based on society’s needs today

The changes that the law has taken over the years are effective enough. The purpose of this thought is that many factors were put into consideration in making the new laws. They leave enough room for a person to be judged in the right manner regarding their intentions when they take a certain action (Utset, 2013). However, more should be done to make sure that the law does not step in too late after the crime has been committed including all the irreversible harm that has been caused. As said before, the law should always protect the people and this included being able to foretell and prevent crime from taking place.


Ashworth, A., & Horder, J. (2013). Principles of criminal law. Oxford: Oxford University Press.

Cahill, T. (2011). Defining inchoate crime: An incomplete attempt. Ohio: Wiley.

Duff, A. (1996). Criminal attempts. Washington: Blackwell Publishing Limited.

Simester, P., Spencer, R., Sullivan, R., & Virgo, J. (2014). Simester and Sullivan’s criminal law: Theory and doctrine. Leeds: A&C Black.

Utset, A. (2013). Inchoate crimes revisited: A behavioral economics perspective. London: University of Richmond Law Review.

Westen, P. (2013). The Significance of Transferred Intent. Birmingham: Criminal Law and Philosophy Department.

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