Introduction

Criminal Solicitation

Introduction

The simplest way to see what solicitation punishes is to follow one request through each of its possible outcomes. A wants an enemy, B, dead, and perhaps because A lacks the nerve to do the killing personally, A asks C to do it. If C acts on the request and fatally shoots B, A and C are both guilty of murder, and if C tries and fails, both are guilty of attempted murder.¹ If C agrees to the plan but the killing is never accomplished or even attempted, A and C are nonetheless guilty of conspiracy.² The last possibility is the one this chapter is built around: C rejects the scheme on the spot, so no agreement forms and no step toward the killing is taken.

In that last case C has committed no crime at all. B is alive, C never tried to kill B, and C never agreed to anything, so there is no completed offense, no attempt, and no conspiracy for anyone to answer for. A is still guilty of solicitation, because A intended that B be killed and acted on that intent by importuning C to do the killing.³ Solicitation is the offense of urging, advising, commanding, or otherwise inciting another to commit a crime, and it is an inchoate offense, meaning a crime that punishes conduct aimed at a later harm instead of the harm itself, which makes it distinct from the crime solicited.⁴ The core idea fits in one sentence: the offense is complete when a person, intending that another commit a crime, urges or requests it, whether or not the other agrees or acts.⁵ The law can reach that early because A has already done everything A personally can do to bring about the killing. What remains depends on another person's choice, and the law need not wait for that choice before treating A's intent and A's request as blameworthy. Solicitation therefore sits on the lowest rung of inchoate liability, beneath conspiracy, which needs an agreement, and attempt.

The word solicitation has other legal uses, and none of them is the subject here. A legal dictionary lists several besides the inchoate crime: an offer to exchange money for sex, a lawyer's effort to win clients, and a request that shareholders grant or revoke a proxy.⁶ Courts meet the word in the same varied settings. International Shoe Co. v. Washington describes salesmen soliciting orders in a civil dispute over a state's power to sue a corporation, O'Steen v. State Bar of Arizona concerns professional rules on attorney solicitation and advertising, and Cantwell v. Connecticut involves a statute regulating the solicitation of money for religious causes.⁷ This chapter concerns only the crime, and it reads that crime through two frames: the common-law offense as the courts defined it, and the Model Penal Code's modern restatement in section 5.02.⁸ The first step is the common-law offense itself, namely which requests the courts treated as indictable solicitations and why the offense was graded as a misdemeanor.