Under federal law, it becomes a crime to plan a crime at the moment planning turns into one of three concrete acts: agreeing with someone else to commit the offense (conspiracy), taking a substantial step toward carrying it out (attempt), or asking someone else to commit a violent crime (solicitation). The planned crime does not have to happen—or even come close to happening—for the planner to face serious prison time. The threshold is lower than most people assume, and the exposure reaches further than the planner’s own actions.
Conspiracy: The Agreement Plus an Act
Conspiracy is an agreement between two or more people to commit a crime. Under the main federal conspiracy statute, once that agreement exists and at least one participant takes any action to move the plan forward, every member has committed a federal offense punishable by up to five years in prison.1Office of the Law Revision Counsel. 18 USC 371 – Conspiracy to Commit Offense or to Defraud United States If the target crime is only a misdemeanor, the conspiracy penalty is capped at whatever that misdemeanor carries.
The “overt act” that triggers liability doesn’t need to be illegal or dramatic. Buying supplies, renting a car, opening a bank account, making a phone call—anything showing the plan moved beyond talk can qualify.
The overt act requirement is not universal, though. The Supreme Court has held that certain federal conspiracy statutes, including drug conspiracies and money laundering conspiracies, require no overt act at all.2Legal Information Institute. Whitfield v. United States For those offenses, the agreement alone completes the crime.3Legal Information Institute. United States v. Shabani
Penalties scale with what was planned. Some conspiracy statutes impose the same punishment as the completed crime. Drug conspiracy carries the identical sentencing range as the underlying drug offense.4Office of the Law Revision Counsel. 21 USC 846 – Attempt and Conspiracy Federal fraud conspiracy works the same way—attempt or conspiracy to commit mail fraud, wire fraud, or bank fraud is punished as though the fraud actually succeeded.5Office of the Law Revision Counsel. 18 USC 1349 – Attempt and Conspiracy Because conspiracy is a separate offense from the crime planned, a person can be convicted of both the conspiracy and the completed crime if the plan actually goes through.
Attempt: The Substantial Step
Attempt arises when someone intends to commit a specific crime and takes a “substantial step” toward completing it but doesn’t finish. The question prosecutors and courts wrestle with is where preparation ends and a substantial step begins. Federal courts generally follow the Model Penal Code approach: the step must be more than mere preparation, but it doesn’t have to be the last act before the crime would be complete.6United States District Court for the District of Massachusetts. Attempt – Pattern Jury Instructions
The difference matters in practice. Thinking about robbing a bank is not a crime. Looking up the bank’s hours and sketching a floor plan is probably still preparation. Walking into the bank with a disguise and a demand note, then getting tackled by a security guard before reaching the teller, is a substantial step. The conduct has to be close enough to completion that it strongly signals criminal intent rather than idle planning. If the substantial step is the only evidence of criminal intent, it must unambiguously point toward crime rather than some innocent explanation.6United States District Court for the District of Massachusetts. Attempt – Pattern Jury Instructions
Attempt penalties vary by statute, but many federal provisions punish the attempt identically to the completed crime. Drug attempt carries the same sentencing range as a completed drug offense.4Office of the Law Revision Counsel. 21 USC 846 – Attempt and Conspiracy Attempted fraud under the federal fraud statutes works the same way.5Office of the Law Revision Counsel. 18 USC 1349 – Attempt and Conspiracy If you actually complete the crime, the attempt charge merges into the completed offense; you can’t be convicted of both attempted robbery and robbery for the same act.
Solicitation: The Ask Is the Crime
Solicitation is the simplest of the three to complete. You commit it the moment you ask, encourage, or try to persuade someone else to commit a crime, even if they refuse, laugh in your face, or turn out to be an undercover officer. No agreement is needed (that would be conspiracy). No substantial step is needed from you. The ask is the crime.
The federal solicitation statute specifically targets crimes of violence. Offering someone money to assault or kill another person is a federal offense carrying a penalty of up to half the maximum sentence for the crime solicited. If the solicited crime is punishable by life imprisonment or death, the solicitation itself can bring up to twenty years in prison.7Office of the Law Revision Counsel. 18 USC 373 – Solicitation to Commit a Crime of Violence It does not matter that the person solicited lacked the ability or willingness to carry out the crime.
Why Conspiracy Exposure Can Reach Further Than You Think
This is where conspiracy law gets genuinely dangerous. Under the rule established in Pinkerton v. United States, every member of a conspiracy can be held criminally liable for crimes committed by other members—even crimes they didn’t know about in advance—as long as those crimes were committed in furtherance of the conspiracy and were reasonably foreseeable.8Legal Information Institute. Pinkerton v. United States, 328 U.S. 640
In practice, agreeing to help with a burglary can make you legally responsible if your co-conspirator shoots someone during the break-in, provided a reasonable person could have foreseen violence as a natural consequence of the plan. The additional crime doesn’t need to have been part of the original agreement. It just has to fall within the scope of the conspiracy and be something a participant could have anticipated. The rule catches people who thought their role was minor or peripheral.
Defenses
Being charged with one of these offenses doesn’t automatically mean conviction. Several defenses apply, though they’re narrower than most people assume.
Abandonment and Renunciation
Some states allow an abandonment defense for attempt charges. Federal courts do not. Once you’ve taken a substantial step toward committing a crime, changing your mind doesn’t undo the attempt in federal court.9Congress.gov. Attempt: An Overview of Federal Criminal Law If you stop before reaching the substantial-step threshold, you were never guilty of attempt to begin with, but that’s because an element is missing, not because abandonment is a recognized defense.
Solicitation is different. Federal law provides an affirmative defense if the solicitor, after making the request, voluntarily and completely renounces the criminal intent and actually prevents the crime from happening. Renunciation doesn’t count if it was motivated by a decision to postpone the crime, switch to a different victim, or pursue a similar objective.7Office of the Law Revision Counsel. 18 USC 373 – Solicitation to Commit a Crime of Violence The defendant bears the burden of proving the defense by a preponderance of the evidence.
Impossibility
Impossibility comes in two forms, and only one works as a defense. Factual impossibility, where you tried to commit a crime but couldn’t because of some circumstance you didn’t know about, is not a defense. Trying to pick an empty pocket is still attempted theft. Trying to buy drugs from an undercover officer who has no actual drugs is still an attempt.
Legal impossibility can be a defense. It applies when what you believed was criminal actually isn’t illegal at all. If you genuinely thought you were smuggling contraband across state lines but the substance turned out to be perfectly legal, there’s no crime to attempt because the underlying conduct isn’t prohibited. The defense comes up rarely, and courts interpret it narrowly.
Withdrawing From a Conspiracy
Withdrawing from a conspiracy is possible but requires more than quietly walking away. A conspirator must take affirmative action inconsistent with the conspiracy’s purpose and make reasonable efforts to communicate that withdrawal to all co-conspirators.10Ninth Circuit District and Bankruptcy Courts. Withdrawal From Conspiracy Simply stopping participation isn’t enough.
Even a successful withdrawal has limits. It can cut off liability for future crimes committed by the remaining conspirators, and if the withdrawal happened outside the statute of limitations period, it can provide a complete defense to prosecution. But withdrawal does not erase liability for the conspiracy itself or for any crimes already committed before the withdrawal.10Ninth Circuit District and Bankruptcy Courts. Withdrawal From Conspiracy The defendant bears the burden of proving withdrawal by a preponderance of the evidence. Some jurisdictions also require the withdrawing conspirator to actively work to prevent the planned crime, such as by alerting law enforcement.