Nature of the Offense

Nature of the Offense

At common law, solicitation was a misdemeanor, committed when a person asked another to commit a felony or to engage in conduct that would breach the peace or obstruct justice.¹ Two features of that definition shape the rest of this section. The first is the grade: the offense is graded as a misdemeanor even when the crime requested is a felony such as murder, so the label belongs to the request and not to the crime it was aimed at. The second is the coverage, which reaches requests for felonies and for conduct that disturbs public order or the administration of justice. The common law never made it a general offense to urge another person to do something wrong.

Each feature has its own logic. The act of solicitation is only speech, and at the moment of the request nobody has been harmed. The law punishes it anyway because of what the request reveals: a person who tries to enlist another in a crime has shown a criminal purpose and a willingness to set it in motion, and the law prefers to step in before the harm occurs. That reasoning also fits the misdemeanor grade, since the harm the solicitor wants has not happened and still depends on a choice that belongs to someone else. The limit on coverage does the subtler work. If every urging of any wrongdoing were indictable, the offense would sweep in idle talk about trivial violations that threaten no one. Confining it to felonies and to misdemeanors that breach the peace or obstruct justice reserves the offense for requests that threaten serious harm or harm to public order.

The usual picture of the offense is recruiting or hiring. Some jurisdictions treat solicitation as a crime closely related to accessory before the fact, one that entails recruiting or hiring someone to commit a crime, and murder-for-hire is the classic case.² Solicitation requires something beyond mere support or encouragement, because the defendant usually must initiate the crime and procure the participation of the person who would carry it out.³ A person who hires a killer fits that description. Someone who merely cheers on a plan another person has already formed does not, and that conduct belongs to the law of complicity rather than to solicitation.

The offense was not always settled. Whether solicitation was known to the common law before the nineteenth century is uncertain, and the early cases pulled in different directions.⁴ One court held that a man could not be indicted for simply asking a servant to leave the master's service, although its opinion said that enticing a servant to embezzle the master's goods would be indictable. Shortly afterward another court held that no offense was charged where the indictment did not allege that the servant actually took the goods. The first opinion drew its line at the object of the request, since leaving a job is lawful and theft is not, but the second shows how unwilling courts were to punish a request that produced no act. Only two special types of solicitation were clearly indictable under those early decisions: soliciting perjury or a forgery meant for use at trial, and offering a bribe to a public official.

Rex v. Higgins (1801) changed the direction of the law.⁵ The indictment charged the defendant with soliciting a servant to steal the master's goods, and the servant had ignored the request, so nothing beyond the request had occurred. Defense counsel surveyed the earlier cases and found no precedent for punishing bare solicitation outside perjury, forgery, and bribery, and argued that the silence of the writers on Crown law was itself strong evidence that no such offense existed. The judges unanimously held that the indictment charged a common-law misdemeanor, yet the only precedents they cited were the bribery, perjury, and forgery cases. Their opinions justify the result chiefly by the policy of treating such requests as offenses, which explains why the offense is understood by what it prevents: a request to commit a crime is itself a public wrong. Since Higgins, solicitation has been recognized as a common-law offense in England and the United States with few exceptions, and the solicitation of another to commit a felony is uniformly held indictable as a misdemeanor.⁶ That history leaves two questions for the sections that follow: which solicited crimes the common law reached, and how modern statutes have changed the offense and its punishment.

Crimes Covered at Common Law

The common law did not punish every request to do wrong, so the first question on a solicitation problem is what the person asked for. Requests fall into two groups that were indictable and one group that was not. A request to commit a felony was indictable as a misdemeanor, and so was a request to engage in conduct that would breach the peace or obstruct justice.⁸ A request to commit an ordinary misdemeanor, one that neither disturbs public order nor interferes with the courts, fell outside the offense.⁹

The sorting follows from what the offense punishes. The act is only speech, and when the request is made the harm the solicitor wants has not occurred, so the law needs a reason to step in that early. Felonies supply that reason automatically, because a felony is by definition a serious crime, and a person who tries to recruit another into one has shown a willingness to cause serious injury. Breaches of the peace and obstructions of justice supply it differently: the injury falls on public order or on the courts' ability to find the truth, a harm that reaches the public generally, so a request to cause it is dangerous enough to stop before anything follows. An ordinary misdemeanor supplies neither reason. If the request succeeded, the resulting harm would be slight, so punishing the request would add little deterrence while pulling casual talk about trivial violations into the criminal law.

The middle category deserves separate attention because the underlying act need not be a felony. What qualifies the request is the interest it targets, which is the administration of justice, and that interest is protected whatever label the requested act would carry on its own.

Coverage varied at the margins. Jurisdictions that follow the common-law approach punish solicitation at least when felonies and serious misdemeanors are the object, while others are more selective and punish only chosen solicitations, such as riot or bribery.¹⁰ The peace-and-justice category rests on decisions that reached the result when the question arose, and no reported American decision treats a request to commit a minor misdemeanor as a common-law offense.¹¹

The remaining question is whether the request must lead to anything at all. In Rex v. Higgins (1801) the defendant was indicted for soliciting a servant to steal the master's goods, and the servant ignored the request, so nothing followed it.¹² The judges unanimously held that the indictment charged a common-law misdemeanor.¹³ That ruling settled a point the earlier cases had left open, since one of them had found no offense where the indictment failed to allege that the servant actually took the goods.¹⁴ After Higgins, bare solicitation is indictable: the request is itself the wrong, and the refusal or inaction of the person asked does not erase the solicitor's liability. The judges rested the decision more on the policy of treating such a request as an offense than on prior authority, which fits the functional account above, because a request to commit a serious crime shows a willingness to set that crime in motion.¹⁵ The same reasoning produces the completion rule taken up later in this chapter, under which the offense is finished when the request is made.

The two questions work together on any fact pattern. The coverage rule asks whether the thing requested belongs to a covered category, and Higgins answers that, once it does, the absence of any response from the person solicited is irrelevant.

Modern Statutes and Grading

The common-law offense described above was made by judges, and modern law has largely replaced it with legislation, so on a problem set in a code jurisdiction the first step is to read the statute instead of reasoning from the common-law categories. The reason is historical as well as practical. Until the Model Penal Code was drafted, few state penal codes contained a general solicitation offense, although many prohibited particular solicitations, such as soliciting murder or soliciting prostitution.¹⁷ A state that had abolished common-law crimes and enacted only those particular provisions left most solicitations unpunished, because the judge-made offense no longer existed to fill the gap.¹⁸ That has changed: a substantial number of states now have general solicitation statutes, usually patterned after Model Penal Code § 5.02, and nearly all states include some general prohibition on criminal solicitation.¹⁹ The picture is still uneven, though, and it is not uncommon for a recodified criminal code to contain no solicitation statute at all.²⁰

Where a general statute exists, its coverage varies from state to state. Some statutes reach the solicitation of any crime. Others reach only felonies, only particular classes of felonies, or all felonies plus particular classes of misdemeanors, and one covers only certain specified offenses.²¹ That variation matters because coverage decides whether a request lands on the punishable side of the line, and a statute can draw the line in a different place from the common law. The common law reached requests to commit felonies and misdemeanors that breach the peace or obstruct justice, and it left ordinary misdemeanors alone.²² An all-crimes statute reaches the ordinary misdemeanor as well, while a felony-only statute leaves it unpunished.

The only fact that changes between the two states is the breadth of the statute, and that fact decides the case. Statutory text controls here, which means the common-law categories supply the answer only where a jurisdiction has kept the common-law offense. The trap is carrying the common-law limits into a code that does not contain them, or assuming that a code which abolished common-law crimes still punishes whatever the common law punished, so read the statute's coverage first and apply the common-law categories only if no statute displaces them.

Statutes also fix how severely a solicitor is punished. The usual pattern is a grade one level below the offense solicited, though some statutes authorize punishment equivalent to what the solicited crime carries.²³ Even jurisdictions that punish all or most solicitations rarely punish them as severely as the completed crime.²⁴ The discount rests on a judgment about the gap between the request and the harm. When the request is made, nothing has yet been injured, and the injury depends on a separate person who can refuse. The argument for the lower grade is that the independent will of that person stands between the solicitor and the crime.²⁵

The Model Penal Code makes the opposite judgment. It treats the solicitor as just as dangerous as the person who completes the crime and punishes the two with equal severity, except when the crime is extremely serious, such as murder.²⁶ The drafters' reasoning turns on the same fact that supports the lower grade, the independent will of the person solicited, but weighs it differently. A solicitation is, if anything, more dangerous than a direct attempt, because it can produce cooperation among criminals, and the accident that the person solicited declines should not relieve the solicitor of liability when the solicitor would otherwise be a conspirator or an accomplice.²⁷ The two grading approaches therefore disagree about whether another person's refusal should reduce the solicitor's blameworthiness. The one-level-below pattern discounts for the refusal, and the Model Penal Code treats the refusal as luck that says nothing about the solicitor's purpose.

Legislatures also write encouragement offenses aimed at a single harm, and these carry their own grading. Assisted suicide is the familiar example. California's 1874 provision made it a felony to deliberately aid, advise, or encourage another to commit suicide, and Model Penal Code § 210.5(2) makes a person who purposely aids or solicits another to commit suicide guilty of a second-degree felony if the conduct causes a suicide or an attempted suicide, and otherwise of a misdemeanor.²⁸ The grade there follows the result instead of sitting one step below some other crime. The drafters explained the offense by saying that the interest in the sanctity of life, which the homicide laws protect, is threatened by anyone who expresses willingness to take part in ending another person's life, even when the victim consents or asks for help.²⁹ Offense-specific statutes of this kind show again why the statute in front of the reader governs both what may be solicited and how the solicitation is punished.