Estimated reading time: 6 minutes
Attempt, Solicitation, Aiding, Conspiracy: What are “inchoate crimes” in Minnesota? Attempts, Solicitation, Aiding and abetting, Conspiracy are all inchoate crimes, or can be. An inchoate crime is an incipient crime which could lead to another, real crime. And “incipient” means beginning to appear, or at an initial stage. These criminal laws are controversial. But your criminal defense attorney will be essential, protecting you from the law’s abuse.
“Whatever we do affects everything and everyone else, if even in the tiniest way. Why, when a housefly flaps his wings, a breeze goes round the world.” — The Princess of Pure Reason
Norton Juster, The Phantom Tollbooth
Hindsight bias: In retrospect, we may perceive a chain of events. But we may not be able to foresee them, at the time. In other words, it’s easier to see the future after the fact.
The Model Penal Code classifies attempts, solicitation, aiding and abetting, and conspiracy as inchoate crimes. PART I, ARTICLE 5 Inchoate Crimes, American Law Institute, 1985. And it influenced Minnesota legislation.
Minnesota Inchoate Crime Statutes
Attempts to commit a crime
Minnesota’s general inchoate crimes statute for attempt is Minnesota Statutes §609.17, subdivision 1:
“Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”
Minn. Stat. §609.17, subd. 1
So “a substantial step toward” committing an uncompleted crime, is itself a crime. But this law requires evidence of criminal intent, or mens rea. The law requires evidence of “intent to commit a crime.” in taking the “substantial step.”
We may easily perceive a chain of events in the past. But we may not be able to know the future in real time. And since evidence of “intent” is usually circumstantial, we have a problem.
Attempt Crime Sentencing: The Minnesota Statutes §609.17, subd. 4 limits the maximum sentence for an attempt crime to half the maximum for the underlying offense. (But not if punishable by life imprisonment.) And similarly, the Minnesota Sentencing Guidelines, 2G, call for one-half the presumptive sentence of many, though not all, underlying offenses.
Solicitation to commit a crime
Minnesota does not have a general Solicitation Crime statute. But rather, Minnesota has several inchoate crime Solicitation statutes specific to situations. And these include Minnesota Statutes:
- Section 609.321, Prostitution Definitions
- Section 609.322, Solicitation, Inducement, Promotion Of Prostitution
- Section 609.325, Defenses to Prostitution Charges
- Section 609.352, Solicitation Of Children To Engage In Sexual Conduct
- Section 609.493, Solicitation Of Mentally Impaired Persons
- Section 609.494, Solicitation Of Juveniles
As you can see, these criminal statutes relate to prostitution and child sex abuse; and to soliciting mentally impaired or juveniles to commit criminal acts. And some of them define “Solicit” to mean “commanding, entreating, or attempting to persuade a specific person.”
See my related article: Sex Workers and Minnesota Prostitution Law
Aiding and abetting
Aiding and abetting is another of Minnesota’s inchoate crimes. Minnesota’s general Aiding and abetting Crime is in Minnesota Statutes §609.05, Liability For Crimes Of Another:
“Subdivision 1. Aiding, abetting; liability. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn. Stat. §609.05 (2023)
Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence …”
If a person is liable as an accomplice for a crime under Minn. Stat. § 609.05, subd. 1, the person is “also liable for any other crime committed in pursuance of the intended crime If reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.”
The “intentionally aids” element requires that the defendant “knew that [her] alleged accomplices were going to commit a crime” and that the defendant “intended [her] presence or actions to further the commission of that crime.” State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007); see Minn. Stat. § 609.05.
Some other Minnesota Statutes relating to “aiding and abetting” inchoate crimes include:
- Section 169A.78, Aiding And Abetting Driving While Impaired
- Section 609.06, subd. 1 (3), Authorized Use Of Force, “when used by any person in resisting or aiding another to resist an offense against the person.”
- Section 609.215, Aiding Suicide.
- Section 609.495, Aiding Offender After the Fact.
Conspiracy to commit a crime never committed
The general Conspiracy to Commit a Crime statute is Minnesota Statutes §609.175, including:
“Subd. 2. To commit crime. Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced as follows:
Minn. Stat. §609.175 (2019)
(1) if the crime intended is a misdemeanor, by a sentence to imprisonment for not more than 90 days … ; or
(2) if the crime intended is murder in the first degree or treason, to imprisonment for not more than 20 years; or
(3) if the crime intended is any other felony or a gross misdemeanor, to imprisonment or to payment of a fine of not more than one-half the imprisonment or fine provided for that felony or gross misdemeanor or both.”
And the Minnesota Supreme Court says “the crime of conspiracy requires (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy.” State v. Kuhnau, 622 NW 2d 552 (Minn. 2001).
Some other Minnesota criminal statutes that relate to conspiracy crimes include:
- Section 152.096, Drug Crime Conspiracies
- Section 609.902, RICO, Racketeering Definitions.
And conspiracy criminal statutes exist at the federal level as well, for example the Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970.
Defenses to a criminal conspiracy charge
- Evidence of an agreement is lacking
- Agreement to do a legal act is not a crime
- An agreement to act with one person; is not agreement to act with other, unknown persons
- Defendant did not commit an overt act towards completion of a plan
- If defendant did, he later withdrew from the plan
Pre-crime: Defending Against Inchoate Crimes Claims
As you can see, the various Minnesota inchoate crimes overlap. They all involve an underlying offense that never happened. And this raises the specter of government abuse of these “pre-crime” laws.
Another common issue is criminal intent. What is planning to intend to someday commit a criminal act? Is that a crime? No. But how do you prove which side of that chained and blurry line you are on? And should we be criminalizing that?
To an extent, the laws acknowledge this problem by providing half the punishment for some inchoate crimes; relative to their underlying offense. So, for example, if a presumptive sentence for an Ag Robbery was 48 months; then Attempt Ag Robbery would be a presumptive 24 months in prison.
Six degrees of separation: Another common problem we see in federal court conspiracy charges is the “small conspiracy vs. the government’s big conspiracy theory.”
The evidence may show the defendant had a plan with someone to do one small thing. But the government claims the defendant responsible for the acts of persons unknown to defendant; but known to the someone defendant did know, several times removed.
Improper Witness Coercion: And some prosecutors may abuse their power to coerce witnesses with threats of criminal prosecution, enhancements and mandatory minimums. When they do, they may threaten to charge one of these inchoate crimes.
Question? Call Attorney Thomas Gallagher, 612 333-1500
Over Attorney Thomas C. Gallagher‘s three decades of criminal defense practice, he helped many people facing inchoate crime charges.
Some have been misdemeanors. Some have been large federal drug conspiracy cases And everything in between. And we see situation patterns in these types of cases that repeat. So having defense counsel with long experience can help you.
More: inchoate crimes
Coercion | blackmail, extortion crime
Crimes | Types of Criminal Cases
Why Minnesota Gov’s Admin Mask Mandate Is Illegal
Duress Defense | Complete or Partial
Criminal Defenses | Defense Issues