3.3 Solicitation
8 min read•august 20, 2024
is a crime that occurs when someone encourages or requests another person to commit a crime. It involves two key elements: the act of communication and the specific for the crime to be carried out. This topic explores the nuances of solicitation and how it differs from other criminal offenses.
Understanding solicitation is crucial for grasping the broader concept of inchoate crimes. These are offenses that are punishable even if the underlying crime is not completed, allowing law enforcement to intervene before harm occurs. Solicitation's place in criminal law highlights the importance of intent in determining culpability.
Elements of solicitation
- Solicitation is the act of encouraging, requesting, or commanding another person to commit a crime with the specific intent that the person solicited will commit the crime
- The two key elements of solicitation are the (guilty act) and (guilty mind)
Actus reus of solicitation
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- The actus reus of solicitation requires some form of communication or expression that encourages or requests another person to commit a crime
- This communication can be verbal (spoken words), written (letters, emails, text messages), or even through gestures or conduct that conveys the message
- The solicitation must be clear and specific enough for the person solicited to understand what crime is being requested
- The actus reus is complete as soon as the solicitation is communicated, even if the person solicited does not agree to commit the crime or takes no further action
Mens rea of solicitation
- The mens rea of solicitation requires that the solicitor have the specific intent that the person solicited will commit the crime
- The solicitor must actively desire or intend for the crime to be committed as a result of their solicitation
- It is not sufficient for the solicitor to merely suggest or discuss the possibility of a crime being committed without intending for it to actually occur
- The specific intent requirement distinguishes solicitation from other inchoate crimes like or , which have different mens rea elements
Specific intent to solicit
- Specific intent means that the solicitor must have the particular purpose or goal of causing the solicited crime to be committed
- This is a higher level of intent than general intent, which only requires that the solicitor intend to engage in the act of solicitation itself
- Evidence of specific intent can include the solicitor's statements, actions, or circumstances that demonstrate their desire for the crime to occur (offering payment for the crime, providing detailed instructions, etc.)
- Specific intent can be negated by defenses like intoxication or mental incapacity that show the solicitor lacked the requisite mental state
Solicitation vs attempt
- Solicitation and attempt are both inchoate crimes, meaning they are punishable even if the underlying crime is not completed
- However, solicitation occurs at an earlier stage than attempt and requires less action toward committing the crime
- Solicitation only requires a communication encouraging or requesting the crime, while attempt requires some substantial step toward actually committing it
- In some jurisdictions, solicitation can be a lesser included offense of attempt if the solicitation progresses to the point of attempting the crime
Solicitation of specific crimes
- Solicitation statutes often specify which crimes can be the subject of solicitation, as not all crimes are punishable at the solicitation stage
- The severity of the crime solicited can impact the punishment for solicitation, with solicitation of more serious crimes carrying higher penalties
Solicitation to commit felonies
- Most jurisdictions criminalize solicitation to commit felony offenses, which are the most serious category of crimes
- Examples of felonies that can be solicited include murder, rape, robbery, burglary, and arson
- Solicitation of a felony is usually punished as a felony itself, although the specific penalties may be lower than for the completed crime
Solicitation to commit misdemeanors
- Some jurisdictions also criminalize solicitation to commit misdemeanor offenses, which are less serious than felonies
- Examples of misdemeanors that can be solicited include simple assault, theft, trespassing, and disorderly conduct
- Solicitation of a misdemeanor is usually punished as a misdemeanor, with penalties like fines or short jail sentences
Solicitation to commit murder
- is one of the most serious forms of solicitation and is often singled out for harsh penalties
- Many jurisdictions treat solicitation to commit murder as a separate offense from general solicitation statutes
- Solicitation to commit murder can be punished with lengthy prison sentences, even if the murder is not actually carried out
- Some states allow solicitation to commit murder to be punished with life imprisonment or even the death penalty in extreme cases
Defenses to solicitation
- There are several recognized defenses that a defendant can raise to challenge a charge of solicitation
- These defenses negate either the actus reus or mens rea of solicitation or provide justification or excuse for the defendant's actions
Renunciation of solicitation
- Renunciation is a defense that applies when the defendant voluntarily and completely abandons their effort to solicit the crime before it is committed
- The renunciation must be genuine and not just a temporary delay or postponement of the solicitation
- In some jurisdictions, the defendant must also take affirmative steps to prevent the crime from occurring, such as notifying the police or the person solicited
- Renunciation can be a complete defense that absolves the defendant of criminal liability for solicitation
Impossibility of solicitation
- Impossibility is a defense that applies when the crime solicited cannot actually be committed, either legally or factually
- Factual impossibility means that the crime is impossible due to some physical or practical barrier (soliciting someone to steal an item that does not exist)
- Legal impossibility means that the conduct solicited does not actually constitute a crime under the law (soliciting someone to perform a lawful act)
- Impossibility is not a complete defense in all jurisdictions, as some states focus on the defendant's intent rather than the actual possibility of the crime occurring
Entrapment in solicitation cases
- Entrapment is a defense that applies when the defendant is induced or persuaded to commit solicitation by law enforcement agents using methods that create a substantial risk of the offense
- The key elements of entrapment are that the government agents originate the idea for the crime and use persuasion or pressure to cause the defendant to solicit it
- Merely providing an opportunity to commit solicitation is not entrapment if the defendant is predisposed to commit the offense
- If entrapment is proven, it is a complete defense that results in acquittal of the solicitation charge
Punishment for solicitation
- The punishment for solicitation can vary based on the severity of the crime solicited and the specific laws of the jurisdiction
- As an inchoate crime, solicitation is generally punished less harshly than the completed crime would be, but can still result in significant penalties
Solicitation as an inchoate crime
- Inchoate crimes are offenses that are committed even though the underlying crime is not completed
- Solicitation is an inchoate crime because it is punishable as soon as the act of solicitation occurs, regardless of whether the solicited crime is actually carried out
- Other examples of inchoate crimes include attempt and conspiracy, which also criminalize steps taken toward committing a crime
- The rationale for punishing inchoate crimes is to allow intervention and prevention of criminal activity before harm occurs
Sentencing for solicitation
- The sentencing range for solicitation can vary widely depending on the jurisdiction and the crime solicited
- In some states, solicitation is punished as a lower-level offense than the solicited crime (solicitation of a felony punished as a misdemeanor)
- Other states punish solicitation as the same level of offense as the solicited crime (solicitation of a felony punished as a felony)
- Sentencing factors can include the defendant's criminal history, the severity of the solicited crime, and any aggravating or mitigating circumstances
Solicitation vs the solicited crime
- If the solicited crime is actually committed, the defendant can be charged with both solicitation and the completed offense
- However, some jurisdictions will merge the solicitation charge into the completed crime and only punish the defendant for the more serious offense
- In cases where the solicited crime is not completed, the defendant can still be punished for solicitation as a separate offense
- The punishment for solicitation is generally less severe than for the completed crime, reflecting the lower level of harm caused
Solicitation by accomplices
- Accomplice liability is a legal doctrine that holds individuals criminally responsible for crimes committed by others if they aid, encourage, or facilitate the commission of the crime
- Solicitation can create accomplice liability when the solicitor encourages or assists another person in committing a crime, even if the solicitor does not directly commit the crime themselves
Accomplice liability for solicitation
- A person who solicits another to commit a crime can be held liable as an accomplice to that crime if it is actually committed
- The key elements of accomplice liability are that the accomplice intentionally assists or encourages the crime and has the requisite mental state for the underlying offense
- Accomplice liability can attach even if the person solicited commits the crime in a different manner than the solicitor intended, as long as the crime is a reasonably foreseeable consequence of the solicitation
- The punishment for accomplice liability is generally the same as for the principal offender who directly commits the crime
Solicitation through an agent
- Solicitation can also occur through an intermediary or agent, where the solicitor uses another person to convey the solicitation to the target
- The use of an agent does not relieve the solicitor of criminal liability, as long as the agent is acting under the solicitor's direction or control
- The agent can also be criminally liable for their role in the solicitation, either as an accomplice or a co-conspirator
- Solicitation through an agent can be more difficult to prove, as it requires evidence of the solicitor's intent and control over the agent's actions
Solicitation by conspiracy members
- Conspiracy is a separate inchoate crime that involves an agreement between two or more people to commit a crime
- Solicitation can overlap with conspiracy when one conspiracy member solicits another to commit a crime in furtherance of the conspiracy
- In this situation, the solicitor can be liable for both solicitation and conspiracy, as the solicitation is a step taken toward carrying out the conspiratorial agreement
- Conspiracy liability can expand the scope of criminal responsibility, as each conspiracy member is liable for the foreseeable crimes committed by other members in furtherance of the conspiracy
Key Terms to Review (16)
Actus reus: Actus reus refers to the physical act or conduct that constitutes a criminal offense. It includes not just the actions taken by an individual but also omissions or failures to act in certain situations where there is a legal duty to do so, playing a crucial role in determining liability in criminal law.
Aiding and Abetting: Aiding and abetting refers to the act of assisting or facilitating another person in the commission of a crime, making one legally accountable for the crime committed by that individual. This concept encompasses various forms of support, including providing resources, advice, or even just encouraging the criminal behavior, which can lead to shared liability under the law. Aiding and abetting is crucial for understanding how individuals can be implicated in criminal activities even if they did not directly commit the crime themselves.
Attempt: In criminal law, an attempt refers to the act of trying to commit a crime, where an individual takes substantial steps toward completing the criminal act but fails to do so. This concept underscores the notion that criminal liability can arise not only from successful completion of a crime but also from the intent and effort made to carry it out. Attempt is often linked with related concepts like conspiracy and solicitation, which involve planning and encouraging others in the commission of a crime.
Communication with Another Person: Communication with another person refers to the exchange of information, ideas, or intentions between individuals. In the context of solicitation, it is crucial as it involves one party attempting to persuade or influence another to commit a criminal act. Understanding this term helps clarify how the act of solicitation is carried out and the legal implications that arise from these interactions.
Conspiracy: Conspiracy is an agreement between two or more individuals to commit an unlawful act or to achieve a lawful objective through illegal means. It involves a combination of intent and planning, where parties collaborate to carry out a crime or support criminal behavior. This term connects deeply with the concepts of attempt and solicitation, as both can play roles in the formation and execution of conspiracies, highlighting the progression from planning to action in criminal law.
Federal Solicitation Laws: Federal solicitation laws refer to legal statutes that prohibit individuals from soliciting others to commit crimes or engage in illegal activities, particularly at the federal level. These laws are designed to prevent criminal conspiracies by criminalizing the act of encouraging, requesting, or directing someone else to partake in unlawful acts, thus serving as a deterrent against potential crime and promoting public safety.
Impossibility Defense: The impossibility defense is a legal argument used in criminal cases where a defendant claims that it was impossible to commit the crime they were charged with. This can arise in scenarios where the means to commit the crime are unavailable or when the law does not recognize the intended act as a crime. Understanding this defense is important in evaluating conspiracy and solicitation, as it explores whether a person can be held liable for actions that could not realistically lead to the commission of a crime.
Intent: Intent refers to the mental state or purpose behind a person's actions, indicating that an individual consciously desired to bring about a specific result or consequence. In the legal context, intent plays a crucial role in determining culpability and the nature of an offense, as it helps distinguish between accidental and purposeful acts, shaping how laws are applied in various criminal situations.
Mens Rea: Mens rea refers to the mental state or intent of a person when committing a criminal act. It plays a crucial role in distinguishing between different levels of culpability, as it assesses whether the individual had a guilty mind at the time of the offense, which is essential for establishing liability in criminal law.
People v. McNulty: People v. McNulty is a pivotal legal case that examines the nuances of solicitation within criminal law, particularly the intent and actions required to charge someone with soliciting another person to commit a crime. This case is significant as it highlights the elements necessary for establishing the crime of solicitation, including the necessity of a clear agreement between parties and the intent behind such an agreement.
Solicitation: Solicitation is the act of seeking or requesting someone to engage in illegal conduct, often related to criminal activities. It involves an individual encouraging, persuading, or asking another person to commit a crime, which can include a range of offenses from drug trafficking to prostitution. Understanding solicitation is essential because it connects closely to conspiracy, as the intent behind soliciting can lead to agreements to commit a crime, making both terms relevant in discussions of criminal liability.
Solicitation of Prostitution: Solicitation of prostitution refers to the act of enticing or requesting another person to engage in sexual activity in exchange for payment. This concept is significant within the context of the laws surrounding both solicitation and prostitution, as it addresses the legal implications for individuals seeking to purchase or sell sexual services.
Solicitation to Commit Murder: Solicitation to commit murder refers to the act of intentionally encouraging, requesting, or commanding another person to engage in the crime of murder. This offense is distinct from the actual act of murder itself, as it focuses on the request made to someone else, which can lead to criminal liability even if the murder does not occur. Understanding this term involves recognizing the legal implications of attempting to induce someone to commit a serious crime and how it fits within broader concepts of criminal intent and conspiracy.
State v. McCoy: State v. McCoy is a significant legal case that addresses the issue of solicitation in the context of criminal law. It revolves around the actions of a defendant who was accused of attempting to persuade another person to commit a crime, raising important questions about the elements required for establishing solicitation and the intentions behind such actions. This case highlights the complexities involved in determining culpability when one party seeks to encourage another to engage in criminal behavior.
State-specific solicitation statutes: State-specific solicitation statutes are laws enacted by individual states that define and criminalize the act of solicitation, which involves encouraging or persuading another person to engage in illegal conduct. These statutes vary from state to state, reflecting different legal standards and enforcement practices. Understanding these variations is crucial for grasping the complexities of solicitation as a criminal offense, as they determine how solicitation is prosecuted and the potential penalties involved.
Withdrawal Defense: The withdrawal defense is a legal strategy used by a defendant to negate liability for a crime, particularly in cases of solicitation, by demonstrating that they have taken definitive steps to abandon their involvement in the crime before it was completed. This defense relies on the idea that a person cannot be held criminally responsible if they have effectively and voluntarily withdrawn from the criminal endeavor. In the context of solicitation, it’s crucial to show not only the intention to withdraw but also that this intention was communicated or acted upon appropriately.