Criminal Solicitation

Criminal solicitation is a powerful tool for prosecutors, allowing them to intervene before a planned crime can be carried out. It criminalizes the act of trying to get someone else to break the law, focusing on the dangerous intent and preparatory steps of the solicitor, independent of the other person's actions. Understanding solicitation is crucial for grasping how the legal system addresses inchoate crimes—those offenses that are incomplete but still pose a threat to public safety.

The Foundation: Defining Solicitation

Solicitation is the crime of encouraging, requesting, commanding, or otherwise enticing another person to commit a criminal offense. The core idea is that the solicitor is attempting to instigate or procure a crime through another. What makes solicitation distinct and potent is that the crime is complete the moment the solicitation is communicated. It does not matter if the person being solicited agrees, refuses, or even hears the request. It also does not matter if the crime solicited is ever attempted or completed. The law targets the defendant’s own culpable intent and actions in trying to bring a crime about.

This early intervention is justified by the mens rea, or guilty mind, required. The solicitor must specifically intend that the person they are soliciting will commit the crime. This isn't mere casual conversation or joking; it requires a genuine desire to see the crime accomplished. For example, if Alex hands Bob a crowbar and says, "I'll give you $5000 to break into the warehouse safe tonight," Alex has committed solicitation for burglary the instant Bob hears the offer. Bob's subsequent actions are legally irrelevant to Alex's guilt for solicitation.

The Actus Reus: The "Act" of Solicitation

The actus reus, or guilty act, for solicitation is the communication of the instigating words or conduct. This act must go beyond mere preparation and constitute a substantial step toward influencing another. The Model Penal Code, followed by many states, defines it broadly as "commanding, encouraging, or requesting" another to engage in criminal conduct. Communication can be verbal, written, or through gestures, so long as it is designed to prompt criminal action.

It is critical that the communication be directed at a specific person or group of persons. General incitement to a crowd ("Someone should burn that building!") is typically treated as a different offense. The solicitation must also be for a crime that is itself a felony or a misdemeanor involving breach of the peace or obstruction of justice. You cannot be guilty of soliciting someone to commit a trivial traffic infraction. The requested act must constitute a substantive crime.

Key Distinction: Solicitation vs. Attempt

A common point of confusion is the line between solicitation and attempt. Both are inchoate crimes, but they differ fundamentally in their object. Attempt involves taking a substantial step toward the commission of a crime oneself. Solicitation involves trying to get someone else to commit the crime. If you purchase a gun and drive to the victim's house, you may be guilty of attempted murder. If, instead, you try to hire a hitman to do the killing, you are guilty of solicitation of murder.

Notably, under traditional common law rules, if the person solicited agrees and takes a step toward the crime, the solicitor could also be charged with conspiracy. However, solicitation remains a separate offense. This distinction is vital for exam scenarios: always identify the actor. Is the defendant taking direct action (attempt) or procuring another (solicitation)?

Key Distinction: Solicitation vs. Conspiracy

The relationship between solicitation and conspiracy is closer but still distinct. Conspiracy requires an agreement between two or more persons to commit a crime. Solicitation is a one-sided proposition; it is the act of asking. The crime of solicitation is complete upon the request, even if the other person immediately says "no." If the other person says "yes," then an agreement exists, and a conspiracy may be formed in addition to the completed solicitation.

Think of solicitation as the act of planting the seed of a criminal plan. Conspiracy is the seed taking root as a mutual agreement. For prosecutors, solicitation is often an easier charge to prove than conspiracy because it does not require evidence of a meeting of the minds—only evidence of a unilateral request with criminal intent.

The Limited Defense of Renunciation

Unlike conspiracy, where withdrawal is a complex and often ineffective defense, solicitation does recognize a narrow defense of renunciation. To successfully renounce, the solicitor must completely and voluntarily reject their criminal intent. More importantly, they must also thwart the commission of the crime by persuading the other person not to go through with it, by notifying law enforcement, or by taking other steps to prevent its commission.

Simply having a change of heart is not enough. If you solicit someone to commit arson on Monday, you cannot avoid liability by calling them on Tuesday to say, "Never mind," unless you also take affirmative steps to ensure the arson does not occur. The defense is designed to reward genuine, effective intervention that undoes the danger the solicitor created. Because it requires preventing the crime, it is rarely successfully invoked.

Common Pitfalls

Mistake 1: Believing the Solicited Crime Must Be Completed. This is the most common error. Solicitation is complete upon the communication with criminal intent. Whether the crime happens, is attempted, or is ignored does not affect the solicitor's guilt for the solicitation charge itself.

Correction: Focus on the solicitor's actions and intent at the moment of communication. The subsequent actions of the solicited party are a separate issue.

Mistake 2: Confusing Solicitation with Aiding and Abetting. Aiding and abetting (or accomplice liability) requires that the crime actually be committed. Solicitation does not. If you solicit a murder that never occurs, you are guilty of solicitation but not of murder or aiding a murder.

Correction: Ask: "Did the substantive crime take place?" If yes, consider accomplice liability. If no, consider inchoate crimes like solicitation or attempt.

Mistake 3: Overlooking the Specific Intent Requirement. Not all requests related to crime are solicitation. The solicitor must have the purpose or specific intent that the other person commit the crime. Merely providing information that could be used for a crime, without the intent that it be so used, is insufficient.

Correction: Scrutinize the evidence for the solicitor's goal. Was their aim to see the crime happen, or were they engaged in hyperbole, joke-telling, or abstract discussion?

Mistake 4: Misapplying the Renunciation Defense. Students often think a simple change of heart or a verbal retraction is enough for renunciation. The law imposes a much higher bar: the solicitor must actively and successfully prevent the crime.

Correction: When analyzing renunciation, immediately look for the solicitor's affirmative actions to neutralize the threat they created. Words alone are almost never sufficient.

Summary

• Solicitation is complete upon communication. The crime is the act of requesting, commanding, or encouraging another to commit a crime. The agreement, attempt, or completion of the solicited crime is not an element.
• It requires specific intent. The solicitor must act with the purpose of promoting or facilitating the commission of the crime by the other person.
• It is distinct from attempt and conspiracy. Attempt involves the defendant's own actions toward a crime. Conspiracy requires an agreement. Solicitation is a unilateral request that may later evolve into a conspiracy.
• Renunciation is a narrow, fact-intensive defense. It requires a voluntary and complete change of heart and affirmative actions that prevent the commission of the solicited crime.
• The policy goal is early intervention. By punishing solicitation, the law aims to prevent more serious crimes by apprehending those who seek to instigate them before their plans can advance.