Kentucky, like other jurisdictions, imposes criminal sanctions for conduct that is designed to achieve a criminal result but fails for some reason to accomplish its anti-social objective. Such conduct is punishable, if at all, as criminal attempt, criminal conspiracy, or criminal solicitation. In looking toward revision, attention should be focused initially upon the objectives to be promoted by classifying unsuccessful, anti-social conduct as criminal behavior.
First: There is obviously need for a firm basis for the intervention of law enforcement agencies to prevent a person dedicated to the commission of a crime from consummating it. In determining that basis, attention must be paid to the danger of abuse; equivocal behavior may be misconstrued by an unfriendly eye as part of an endeavor to commit a crime. On the other hand, it is no less important that lines should not be drawn so rigidly that the police confront insoluble dilemmas in deciding when to intervene, facing the risk that if they wait the crime may be committed, while if they act there may not yet be a valid charge.
Second: Conduct designed to cause or culminate in the commission of a crime obviously yields an indication that the actor is disposed towards criminal activity, not on this occasion alone, but on others. There is a need, therefore, subject again to proper safeguards, for a legal basis upon which law enforcement agencies may assess and deal with the special danger that such individuals present, thus making them amenable to the corrective process that the law provides.
Third: Quite apart from considerations of prevention, when the actor's failure to commit the substantive offense is due to a fortuity, as when the bullet misses the intended victim or when the expected response to solicitation is withheld, exculpating the actor would involve inequality of treatment that would shock the common sense of justice. Such a situation is unthinkable in any mature system designed to serve the proper goals of penal law.
The discussion which follows should indicate one thing very clearly. A substantial part of the existing law has developed without thoughtful consideration of the purposes for which inchoate offenses exist.
Response or Comment
Robert G. Lawson, Special Comment, Criminal Law Revision in Kentucky: Part II—Inchoate Crimes, 58 Ky. L.J. 695 (1970).