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Solicitation, or incitement, is the act of trying to persuade another person to commit a crime that the solicitor desires and intends to have committed. Occasionally this type of criminal activity is defined in terms of a specific substantive offense, making it criminal, for example, to offer a bribe, to suborn perjury, to incite a riot, or to advocate overthrow of the government. Such activity is also dealt with in a general fashion, however, simply by punishing one who invokes another to commit a crime.
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Variously known as advising, commanding, counseling, encouraging, enticing, entreating, hiring, importuning, inciting, instigating, procuring, requesting, stimulating, and urging, or referred to by other terms descriptive of attempting to persuade another (the solicitant) to commit a crime, solicitation traditionally exists only when the crime solicited (the object crime) has not been completed, criminally attempted, or agreed to. If the solicitant agrees to commit the crime, both he and the solicitor are liable for conspiracy; if the solicitant attempts to commit the crime, both are liable for attempt; if the solicitant actually completes the crime, the solicitor is liable, under principles of accomplice liability, for being either an accessory before the fact or a principal in the crime that he solicited. Although under the common law the solicitor could be liable for the crime of solicitation only when the solicitant rejected the request, under some statutory schemes (like in Alabama and Illinois), the solicitor may be found guilty whether or not the solicited crime was ever actually committed.
The rationale for the crime is that deliberate inducement of another to commit a crime posits a danger calling for preventive intervention and manifests sufficient danger in the solicitor to warrant criminal liability. The case against criminalizing such activity is that the uncertainty that the object crime will ever be endeavored or committed—in part because the solicitor has shown an unwillingness to commit that crime himself, placing an independent actor between him and the potential crime—signifies that the unsuccessful solicitation is too far removed from any actual harm to present a genuine social danger and, therefore, to warrant criminal sanction. Its emphasis, like that of other inchoate—or relational or anticipatory—crimes, comes too close to punishing evil thoughts or intentions alone.
These competing arguments have produced considerable tension in the United States and other countries, including England, France, Italy, and Germany, as well as a diversity of substantive and procedural principles that are designed both to promote effective law enforcement and to minimize the dangers of abuse and overextension.
Common Law Development
The crime of solicitation has its roots in English common law, at which the solicitation of another to comma a felony, an aggravated misdemeanor, or an offense that disturbed the public peace or was detrimental to the public welfare was punishable as a misdemeanor. Although there are suggestions that the crime first appeared in England as early as 1704, it was not until 1801, in the bellwether case of Rex v. Higgins, 102 Eng. Rep. 269 (K.B. 1801), that solicitation was adjudged to be a distinct substantive common law offense. Holding that the bare solicitation of a servant to steal his master’s goods, although the servant had ignored the request, was an indictable offense, the court rejected the contention that the crime punished a person solely for having criminal intentions: ‘‘It is argued, that a mere intent to commit evil is not indictable, without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act’’ (Higgins, 274).
Elements of The Crime
Any encouragement, probably including a mere suggestion, was a sufficient actus reus, or guilty act. Even invoking evil spirits to cast a spell or give the evil eye was proscribed. Further, the communication need not be a personal one; solicitation could occur when the inducement was directed to a group of people or to the general public. Nor must the inducement be oral; it could even appear in a newspaper article. But, in the case of a written inducement to commit a crime, there was a split of authority at common law as to whether the communication had to reach the intended party in order to satisfy the necessary actus reus. Those courts that did not find solicitation, however, nevertheless convicted the writer of attempt to solicit, thus criminally punishing the actor for even more distant conduct. In either case, the punishment was justified on the ground that the solicitor’s attempt to communicate was sufficient manifestation of his criminal design.
The requisite mens rea, or state of mind, of solicitation was the purpose (sometimes called specific intent) to have the object crime committed. When this mental element concurred in time with the communication, the crime of solicitation was complete. If the solicitor believed, therefore, that the object crime could be consummated, he was liable for solicitation, notwithstanding the impossibility of the crime either at the time of the communication or at some later time.
It is unclear whether, at common law, a voluntary and complete renunciation or abandonment of the criminal purpose would serve as a defense to solicitation, for there is no conclusive case law on the point (and as statutory law has now overwhelmed the common law in the area of criminal justice, there is unlikely to be one in the future). The argument in favor of such a defense is that the renunciation demonstrates that the solicitor has negated his prior dangerousness; moreover, the existence of the defense would provide him an incentive to halt his criminal activity before the commission of the crime. On the other hand, to the extent that solicitation aims at one who has indicated his antisocial tendencies, simply because he abandons his criminal intention on one occasion does not necessarily negate his future criminality. He has also planted the seed of criminal conduct in the mind of another.
While the common law has retained much importance, statutory proscriptions against solicitation have increased. For example, by 1961 only nine states had cataloged solicitation as a general substantive crime; by the end of the century the number had risen to more than thirty. This dramatic increase indicates that society, through its legislative voice, has recognized solicitation as a sufficiently significant public harm to require penal sanction, for, where the common law of crimes has been abolished by statute, without appropriate legislation solicitation even to commit a felony might not constitute a crime.
State statutes employ various criteria to define the crime of solicitation indicating fundamental differences in criminal justice policy and practice. Most commonly addressed in the statutes are the following five factors: types of crimes indictable as criminal solicitations, elements of the crime, existence of a corroboration requirement as a limitation on the crime, degree of punishment, and available defenses.
Types of Crimes Indictable
Unlike the common law, which generally (and vaguely) described the object crimes covered by solicitation as those that breached the public peace, state statutes refer to their own systems of criminal classification—misdemeanors and felonies. In this way, the legislatures are able to control the nature and scope of crime, thereby restricting judicial interpretation and discretion. Many states impose penalties for soliciting the commission of any crime; others apply it only to felonies. The California statute, for example, specifically enumerates the particular object felonies that are subject to solicitation charges, such as murder, felonious assault, kidnapping, and arson. Other states, like Kansas, Louisiana, Colorado, and Michigan, criminalize the solicitation of felonies generally, but not misdemeanors.
Elements of The Crime
Since solicitation, like the other inchoate crimes of attempt and conspiracy, is a specific-intent crime, every state solicitation statute requires that the solicitor’s menial state be either an intent to cause the solicitant to commit or attempt to commit the object crime, or be sufficient to establish the solicitant’s complicity in its commission or attempted commission. Some states have broadened the sting of solicitation by holding the solicitor liable even when the commission of the object crime is contingent on double inchoateness. For example, if A solicits B to solicit C to commit a crime, A could be convicted of solicitation.
Several states expressly include in solicitation the attempt to solicit. Thus, if A writes a letter soliciting B to kill C but is prevented from mailing the letter, A can still be held liable for solicitation; the theory is that he should not escape punishment because of a fortuitous event beyond his control.
An interesting and important feature in many states’ definitions of the actus reus of solicitation is the focus on promoting or facilitating the commission or attempted commission of a crime. Such an element incorporates the otherwise separate crime of facilitation—which penalizes the giving of assistance in cases in which the object crime is not committed—into the solicitation statute, in effect extending greater criminal punishment to persons who are even more remotely involved in criminal activity. This vexatious question of line drawing is, of course, common to the many facets of inchoate crime.
Because of this perplexing issue, some states deal with the potential injustice resulting from charges of solicitation by imposing a requirement of corroboration. This limitation essentially mandates that the state substantiate its charge by introducing extrinsic evidence to support the solicitor’s intent to promote criminal activity. Several states, like California, Maine, and Colorado, require either the corroboration of two witnesses, or one witness plus corroborating circumstances. Iowa provides that the corroboration must be demonstrated by clear and convincing evidence, rather than by some lesser standard. North Dakota requires that the solicitant commit, in response to the solicitation, an overt act in furtherance of the object crime. Such a condition goes beyond he traditional definition of solicitation, making its elements more closely resemble those of attempt and conspiracy.
Degree of Punishment
The severity of punishment for the commission of an offense is a strong indication of the legislature’s perception of the crime. Naturally, the more serious the crime is considered to be, the harsher the penalty ought to be. Thus, one might expect that the penalty for solicitation would be less than that for attempt, and certainly less than that for the object crime. Most states conform to this expectation, by providing sanctions that either are less severe than those for attempt or are described as being one grade less than the range of sanctions for the object crime.
Yet several states prescribe the same punishment for solicitation as for attempt, and some have enacted sanctions that are identical to those for the completed crime, making exception only for very serious offenses. The justification for this approach is that the solicitation, as an expression of the solicitor’s intent, is sufficiently injurious to the public that it merits punishment without regard to its consequences.
The most common statutory defense, offered for instance by Alabama, Colorado, Delaware, Florida, Kansas, Kentucky, and Michigan, is that of renunciation, or abandonment. It is an affirmative defense that is available only if the solicitor voluntarily prevents the commission of the object crime. His voluntariness is measured not by fear that his chances of apprehension have increased but rather by his sense of repentance or change of heart.
Another defense that is sometimes codified provides, as does the common law, that under substantive or accessorial principles, the solicitor could not be held liable for the substantive offense. The rationale for this defense is that, since the legislature chose not to impose punishment for the completed crime (as with a minor who has intercourse with an adult), to sanction a solicitation to commit that crime would be inconsistent and would frustrate the objectives of the substantive criminal law. Other jurisdictions, however, disagree, and explicitly reject such a defense.
Finally, the solicitant’s criminal irresponsibility or other legal incapacity or exemption typically is no defense to the solicitor.
Model Penal Code
No discussion of solicitation could be complete without examining the relevant provisions of the American Law Institute’s Model Penal Code, after which many state statutes have been and are likely to be patterned, at least in part.
On the threshold question of whether there should exist a separate substantive crime of solicitation, the drafters of the Code concluded emphatically in favor of criminalization:
Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability (§ 5.02).
The Code would impose liability for the solicitation of any crime, if the solicitor specifically intends that the object crime be attempted or completed. A conviction for solicitation also would attach to the solicitor if the conduct of the solicitant would establish his guilt under a theory of complicity (§ 5.02(1)). Exemplifying the strict view of the Code toward solicitation is the additional provision that treats attempt to solicit as a criminal offense (§ 5.02(2)). This section makes the actual communication immaterial to prosecution as long as there was an intent to effect such communication, for the actor has demonstrated his need for corrective sanction.
The mental state for solicitation is defined in terms of acting ‘‘with the purpose of promoting or facilitating’’ the commission of a crime (§ 5.02(1)). Moreover, the Code does not require corroboration of the solicitor’s intent.
Taken together, these provisions suggest quite clearly that the American Law Institute designed a solicitation statute that would be both immediately applicable to many situations and far-reaching in its impact. This conclusion is confirmed by the defenses that are expressly recognized in the Code—renunciation and the immunity of the solicitor to prosecution for the object crime (§§ 5.02(3), 5.04(2))—as well as by those that are omitted. The mental state of the solicitant is immaterial if the solicitor believed that the solicitant could perform the solicited act (§ 5.04(1)). Coinciding with its position that impossibility is no defense to the crime of attempt, the Code would probably also reject such a defense to a charge of solicitation, although there is no specific provision on this point. The solicitor’s culpability would be measured by the circumstances as he believes them to be.
The offense grade and degree of punishment for solicitation, attempt, and conspiracy alike under the Code correspond to the most serious offense solicited, attempted, or conspired. Departure from this classification occurs only when the offense is a capital crime or a first-degree felony, in which instances the inchoate offense is one of the second degree (§ 5.05 (1)). The drafters sought to temper the harshness of this grading section by incorporating a mitigation provision, pursuant to which if the court finds that the inchoate crime charged ‘‘is so inherently unlikely to result . . . in the commission of a crime,’’ the judge is permitted to reduce the grade of the crime or, in extreme cases, to dismiss the indictment (§ 5.05(2)). Despite this allowance for a modicum of judicial discretion, the overall impact of the Model Penal Code’s solicitation provisions is severe.
Both sides of the controversy on solicitation are meritorious, from certain perspectives. Those who instigate criminal activity do represent a threat to law and order and should be held accountable. Law enforcement authorities should be able to stop crime before actual harm, often very serious, occurs. But solicitation, which in essence is an attempt to conspire, has the potential of imposing liability too far back in time, before the object crime is ever even attempted. It can thus be subject to great abuse, with the police incorrectly construing equivocal behavior as part of an endeavor to commit a crime.
If solicitation is to be proscribed, one alternative that can minimize the risk of abuse is to draft statutes precisely, with appropriate regard for the scope and grading of each crime and its punishment and with such precautionary safeguards as a corroboration or overt-act requirement. Attention should also be given to the free-speech implications of solicitation, for legitimate agitation of an extreme nature can easily be misinterpreted as solicitation to commit crime, resulting in either direct or indirect suppression of speech.
Another possible approach to solicitation is to view it not as a distinct crime but rather as a step in the direction of crime, on the continuum of preparatory acts that also includes facilitation, conspiracy, and attempt. Indeed, a major debate in the criminal law is whether to treat all inchoate criminal activity as forms of criminal attempt. To
do this intelligently would require a reconsideration of basic principles of the law of attempt— particularly the traditional distinction between acts of preparation and acts of perpetration—as well as of schemes of punishment.
Whatever approach is ultimately adopted, above all it must be recognized that the criminalization of solicitation is an experiment, both in dealing with human behavior and in drawing lines between innocent and culpable conduct at the borders of criminality; it is a balancing of acts and intentions, of predicting and preventing harmful conduct.
- American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments. Philadelphia: ALI, 1985.
- ‘‘Construction and Effect of Statutes Making Solicitation to Commit Crime a Substantive Offense.’’ American Law Reports, vol. 51. 2d series. Rochester, N.Y.: Lawyers Cooperative, 1957, pp. 953–962.
- ‘‘Solicitation to Crime as a Substantive Common-law Offense.’’ American Law Reports, Annotated 35 (1925): 961–969.
- BLACKBURN, JAMES ‘‘Solicitation to Crimes.’’ West Virginia Law Quarterly 40 (1934): 135– 150.
- CURRAN, JOHN ‘‘Solicitations: A Substantive Crime.’’ Minnesota Law Review 17 (1933): 499– 512.
- LAFAVE, WAYNE, and SCOTT, AUSTIN W., JR. Handbook on Criminal Law, 2nd ed. St. Paul, Minn.: West, 1986.
- ROBBINS, IRA ‘‘Double Inchoate Crimes.’’ Harv. J. Legis 26 (1989): 1–116.
- TORCIA, CHARLES, ed. Wharton’s Criminal Law, 15th ed. Deerfield, Ill.: Clark Boardman Callaghan, 1989.
- WECHSLER, HERBERT; JONES, WILLIAM KENNETH; and KORN, HAROLD ‘‘The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy.’’ Columbia Law Review 61 (1961): 571–628.