Tennessee law does not wait for a crime to be finished before it can be prosecuted. Two of the most important tools the state uses to reach unfinished conduct are criminal attempt and solicitation. Attempt punishes a person who takes real steps toward a crime that never gets completed; solicitation punishes a person who tries to get someone else to commit a crime, even if that person never agrees and nothing ever happens. Both are what the law calls inchoate offenses — crimes of preparation and intent rather than completed harm.
For people in Nashville and throughout Middle Tennessee, these charges arise in a wide range of situations: an interrupted burglary, a drug deal that falls through, a sting operation, a message asking someone to hurt or rob another person. Because they turn on intent and on how far a person went, attempt and solicitation cases are often more contestable than they first appear. This article explains what Tennessee’s attempt statute at T.C.A. § 39-12-101 and solicitation statute at T.C.A. § 39-12-102 require, how each offense is graded, and the defenses — including renunciation and the question of impossibility — that a defense attorney evaluates. It is general information, not legal advice; the outcome of any case depends on its specific facts.
Criminal Attempt Under T.C.A. § 39-12-101
Criminal attempt is defined in T.C.A. § 39-12-101. A person commits criminal attempt who, acting with the kind of culpability required for the target offense, does any of three things. First, the person intentionally engages in conduct that would constitute the offense if the circumstances were as the person believes them to be. Second, the person acts with intent to cause a result that is an element of the offense and believes their conduct will cause that result without any further action on their part. Third — and most commonly charged — the person acts with intent to complete a course of action that would constitute the offense and takes a substantial step toward its commission.
Two ideas do most of the work in an attempt case: the required intent and the substantial step. Attempt is a specific-intent offense — the state must prove the person meant to commit the underlying crime, not that they were merely careless or present near criminal activity. And the conduct must go beyond mere planning or preparation. The statute makes this concrete by adding that conduct does not constitute a substantial step unless the person’s entire course of action is corroborative of the intent to commit the offense. In other words, the acts must point clearly toward the crime, not toward some innocent explanation.
The Line Between Preparation and a Substantial Step
Where preparation ends and a substantial step begins is the central question in most attempt cases, and it is rarely obvious. Thinking about a crime, talking about it, or even acquiring the means to commit it may or may not cross the line, depending on how strongly the whole course of conduct corroborates criminal intent. Courts look at the entire picture — what the person did, when they did it, and whether their actions make sense only as steps toward the crime. Because the standard is fact-intensive, a skilled defense attorney can often argue that what the state calls a substantial step was ambiguous conduct that stopped short of the required threshold.
Solicitation Under T.C.A. § 39-12-102
Solicitation is defined in T.C.A. § 39-12-102. A person commits solicitation who, by oral, written, or electronic communication, directly or through another, intentionally commands, requests, or hires another person to commit a criminal offense — or attempts to command, request, or hire another to do so — with the intent that the offense be committed. The crime is complete at the moment of the solicitation with the required intent. Nothing further has to happen.
That is the striking feature of solicitation: it does not matter whether the person solicited agrees, refuses, ignores the request, or reports it to the police. The statute expressly disallows several defenses that people assume would apply:
- It is no defense that the solicitation was unsuccessful and the offense solicited was never committed.
- It is no defense that the person solicited could not be guilty of the offense — for example, because of insanity, minority, or another lack of criminal responsibility.
- It is no defense that the person solicited was unaware of the criminal nature of the conduct being requested.
Because the offense is complete upon the communication, solicitation is frequently charged out of sting operations and recorded communications, where the “person solicited” is an undercover officer or an informant who was never going to commit the crime. The unsuccessful nature of the request does not matter; what matters is the intent behind the communication. This makes the defense focus heavily on what the words truly conveyed, whether the intent element is present, and whether the communication amounted to a genuine command, request, or hire rather than idle talk, venting, or a joke.
How Attempt and Solicitation Are Graded
Like conspiracy, attempt and solicitation do not carry independent penalties. They are graded relative to the target offense under T.C.A. § 39-12-107, but the two are treated differently.
Attempt: One Class Lower
Criminal attempt is an offense one classification lower than the most serious crime attempted. The only exception is that if the offense attempted was a Class C misdemeanor, the attempt is not an offense at all. So attempt to commit a Class A felony is a Class B felony, attempt to commit a Class C felony is a Class D felony, and attempt to commit a Class E felony is a Class A misdemeanor. The class of the attempt drives the sentencing exposure, drawn from Tennessee’s felony and misdemeanor ranges.
Solicitation: Two Classes Lower
Solicitation is graded more leniently. It is an offense two classifications lower than the most serious offense solicited, with no offense at all if the crime solicited was a Class B or Class C misdemeanor. So solicitation to commit a Class B felony is a Class D felony, and solicitation to commit a Class D felony is a Class A misdemeanor. The two-step reduction reflects the reality that solicitation is one step further removed from a completed crime than an attempt — the person did not act to commit the offense themselves but asked another to do it.
Because grading determines everything about sentencing exposure, pinning down the correct class of the inchoate offense is a core part of the defense. Our overview of Tennessee sentencing ranges explains how each felony and misdemeanor class maps to a range of punishment and why the class of the attempt or solicitation — not the completed crime — sets the exposure a person faces.
Renunciation: The Defense of Abandoning the Crime
Tennessee’s inchoate-offense chapter recognizes renunciation as an affirmative defense to attempt and solicitation. The premise is that the law wants to give people a reason to turn back before harm occurs. To qualify, a person must voluntarily and completely renounce the criminal purpose and, depending on the offense, take steps that prevent the crime — such as persuading the solicited person not to act, or otherwise thwarting the commission of the offense.
The requirements are strict. The renunciation must be genuinely voluntary — not motivated by a greater chance of getting caught, a decision to wait for a better opportunity, or a switch to a different victim or objective. A person who abandons a plan only because a police car appears, or who postpones the crime to a safer moment, has not renounced in the sense the law requires. Because renunciation is an affirmative defense, how it applies depends closely on the facts, and it is the kind of issue a defense attorney develops carefully from the evidence rather than asserts in the abstract.
The Question of Impossibility
Defendants often ask a natural question: if the crime could never have succeeded, how can I be guilty of attempting it? This is the doctrine of impossibility, and Tennessee’s statutes largely close the door on it as a defense.
Courts traditionally distinguish between “factual impossibility” and “legal impossibility.” Factual impossibility means the crime could not be completed because of some fact the defendant did not know — for example, trying to pick an empty pocket, or attempting to sell a substance the person believed was an illegal drug but was not. Factual impossibility is not a defense. The attempt statute is built around what the person believed the circumstances to be: a person acts with intent to commit the offense if the circumstances were as they believed them, and the fact that success was impossible does not excuse the attempt. The same logic applies to solicitation, where the statute expressly makes it no defense that the person solicited could not have committed the offense.
The narrow concept sometimes called “legal impossibility” — where the conduct the person intended would not be a crime even if fully carried out — is different, because a person cannot attempt to commit something that is not an offense at all. But that is a rare and technical situation, not the everyday “it couldn’t have worked” argument. For most clients, the takeaway is that the plan’s guaranteed failure is not, by itself, a way out. What the person intended and believed controls, which is why the defense concentrates on intent, the strength of the proof, and how the evidence was gathered rather than on the impossibility of success.
Common Defenses and What to Expect
Attempt and solicitation cases are defended on several recurring themes, and the right approach depends on the evidence:
- No specific intent. Both offenses require intent to commit — or to cause the commission of — the target crime. Ambiguous conduct, loose talk, frustration, or a joke that the state reads as a criminal request can fail the intent element.
- Mere preparation, not a substantial step. In attempt cases, the defense argues that the conduct never crossed from planning into the substantial step the statute demands.
- Words that were not a genuine command, request, or hire. In solicitation cases, whether a communication truly solicited a crime — as opposed to venting, hypothetical talk, or ambiguous language — is often disputed.
- Entrapment. When a sting or informant induced conduct the person was not predisposed to commit, entrapment may be raised depending on the facts.
- Unlawfully obtained evidence. These cases frequently rest on recorded messages, searches, and undercover work. Evidence gathered unlawfully can be challenged through a suppression motion, which can remove key proof of intent.
Procedurally, felony-grade attempt and solicitation charges typically proceed through General Sessions Court and, if the case is bound over and indicted, into Criminal Court. Along the way, the defense reviews discovery — recordings, messages, surveillance, and any undercover reports — with an eye toward the intent element and the line between preparation and action. Because these charges are graded below the completed offense, they can also create negotiating room, and in the right case a first-time defendant may be eligible for the diversion options described in our overview of Tennessee diversion programs.
For anyone facing an attempt or solicitation charge in Davidson County or the surrounding Middle Tennessee counties, the encouraging reality is that these offenses hinge on intent and on fine distinctions the state must prove. That gives a defense attorney meaningful ground to contest the charge, negotiate a reduction, or take the case to trial when the proof is thin. Getting counsel involved early — before statements are made and before the state’s theory hardens — gives a person the best chance to shape the outcome.
How These Charges Appear Across Common Offenses
Attempt and solicitation are not offenses in isolation — they attach to other crimes, and they surface across the full range of Tennessee prosecutions. Understanding how they pair with common charges helps explain why they are so widely used.
- Attempted theft or burglary. A person interrupted while breaking into a building or a vehicle, before anything is taken, may face an attempt charge graded one class below the completed offense.
- Attempted homicide or assault. When a violent act is intended but does not produce the result, the state often charges attempt; these cases turn heavily on intent and on whether the conduct was a substantial step. Our overview of homicide charges in Tennessee explains the underlying offenses to which an attempt can attach.
- Solicitation to commit a violent crime. A message or conversation asking another person to harm, rob, or kill someone can support a solicitation charge even if no one ever acts.
- Drug-related attempts and solicitations. Sting operations and controlled communications frequently produce these charges, where the “buyer” or “seller” is an officer or informant.
In each setting, the same core questions recur: Did the person have the specific intent the target offense requires? In an attempt case, did the conduct cross from preparation into a substantial step? In a solicitation case, did the communication amount to a genuine command, request, or hire? Because the answers depend on fine factual distinctions, these charges are often more defensible than a completed-crime prosecution, where the harm is already done and the dispute is only about who caused it.
The pairing also affects strategy. Since the inchoate offense is graded below the target crime, a charge that began as an attempt or solicitation can sometimes be resolved on terms a completed offense would not allow — including reductions, diversion for eligible first-time defendants, or a negotiated disposition that reflects the incomplete nature of the conduct. A defense attorney weighs those options against the strength of the state’s proof of intent, always with an eye toward the client’s record and long-term interests rather than a quick resolution driven by the charge’s label.
Frequently Asked Questions
What is the difference between attempt and solicitation?
Attempt is trying to commit a crime yourself — acting with intent and taking a substantial step toward completing it. Solicitation is trying to get someone else to commit a crime by commanding, requesting, or hiring them to do it, with the intent that the offense be committed. Attempt focuses on your own actions toward the crime; solicitation focuses on your effort to enlist another person. They are graded differently, with attempt one class below the target offense and solicitation two classes below.
Can I be convicted of solicitation if the person said no?
Yes. Solicitation is complete the moment you make the request with the intent that the crime be committed. The statute expressly states that it is no defense that the solicitation was unsuccessful, that the person solicited could not be guilty of the offense, or that they were unaware of the criminal nature of the conduct. Whether the person agreed, refused, or reported you does not change the legal analysis — the focus is on the intent behind your communication.
What counts as a “substantial step” in an attempt case?
A substantial step is conduct that goes beyond planning or preparation and that, taken as a whole, strongly corroborates the intent to commit the crime. The statute requires that your entire course of action confirm criminal intent. Mere thinking, talking, or even gathering means may not be enough on their own; it depends on how clearly the conduct points toward the offense rather than an innocent explanation. Because this line is fact-intensive, it is often the strongest area to contest an attempt charge.
The crime was impossible to complete — is that a defense?
Generally not. Factual impossibility — where the crime could not succeed because of a fact you did not know, such as an empty pocket or a substance that turned out not to be a drug — is not a defense in Tennessee. Both the attempt and solicitation statutes are built around what you intended and believed, not whether success was possible. The rare exception involves conduct that would not be a crime even if fully carried out, which is a narrow and technical situation rather than the everyday “it never would have worked” argument.
Is attempt punished as seriously as the completed crime?
No. Under § 39-12-107, attempt is one classification lower than the most serious crime attempted, and solicitation is two classifications lower than the offense solicited. So the sentencing exposure is lower than for the completed offense, and it is set by the class of the inchoate offense rather than the target crime. Because the grade drives the exposure, getting the classification right — and challenging the state’s theory of intent — is central to defending these cases.
Talk to a Nashville Criminal Defense Lawyer
If you are facing criminal charges in Tennessee, the decisions you make early in your case can shape everything that follows. Nashville criminal defense attorney Nathan Cate represents clients charged with felonies and misdemeanors throughout Davidson County and Middle Tennessee. With 53 jury trials taken to verdict and 12 outright Not Guilty acquittals, he brings courtroom experience to every stage of a case — from the first hearing through trial and appeal.
Call (615) 664-8083 to schedule a consultation, or visit the office at 222 2nd Avenue North, Suite 220, Nashville, TN 37201.