Elements of Solicitation

Elements of Solicitation

Common-law solicitation has two elements, and every solicitation problem reduces to asking whether both are present. The first is an act: the defendant must incite, counsel, advise, induce, urge, or command another person to commit a crime.¹ The second is a mental state: the defendant must act with the specific intent that the person solicited actually commit that crime.² Specific intent means a purpose to bring about the particular result. A defendant who foresees that a crime might follow, or who would be pleased if it did, but does not mean the listener to commit it, lacks the required mental state. Courts describe the mental state as having two parts: the defendant must intend to make the request, and must intend by it that the other person commit the offense.³

Each element has its own reason for being in the offense. The act element exists because an evil intent alone is never a crime, and the law needs some conduct to punish. In solicitation that conduct is most often just the speaking of words, although a letter or nonverbal conduct can also complete the offense.⁴ The intent element does subtler work. Because the act is only speech, and people say a great many things they do not mean, the mental state is what separates a genuine effort to procure a crime from venting, joking, or a remark of approval. Drop that requirement and an angry comment overheard by a friend becomes a crime; keep it and the offense stays aimed at people who are trying to get something done.

The fact that moved the answer is the character of the words, and it moved both elements together. A remark that expresses general approval of criminal conduct, or simple agreement with it, does not satisfy the act element, and it usually does not show the intent that another person actually carry the crime out.⁵ Once the words become a real request or urging aimed at someone, the analysis changes, and what that person does in response no longer matters.

The four sections below work through these rules in turn. The first examines the act, including the line between a request and mere approval. The second develops specific intent and the surrounding circumstances that show whether the solicitor meant what was said. The third explains why the offense is complete at the moment of the request, whatever the person asked does next. The fourth takes up the First Amendment, which limits how far a legislature may punish what is, in most cases, pure speech.

The Act of Solicitation

The first element asks what the defendant did, and the answer is that the defendant incited, counseled, advised, induced, urged, or commanded another person to commit a crime.⁷ Courts and legislatures have used many other verbs for the same conduct, including entice, entreat, procure, and request, and the list is illustrative, so no single verb carries special legal weight.⁸ What the verbs share is a direction of effort: the defendant aims words or conduct at another person in an attempt to get that person to commit an offense. That attempt is the act of solicitation. An evil intention alone is never a crime, so the offense needs some conduct, and the speaking of words is conduct, which is why speech most often completes the offense, although a letter or nonverbal conduct can do so as well.⁹

Because the essence of the offense is asking, the request need not come with a direction to proceed, a condition, or an offer of payment.¹⁰ Each of those features can make a request look more serious, but none of them changes what the defendant did, which is ask. A solicitor who offers nothing in return is as guilty as one who offers a fortune, since the harm lies in the request itself.

The common feature of all three scenes is that the message asks something of a particular listener. That feature is also what the law uses to separate solicitation from conduct it leaves alone. The act element excludes mere general approval of criminal conduct and simple agreement with it.¹¹ The exclusion follows from what the offense is meant to punish. Approval does not try to bring any crime about; it states an opinion about conduct, and a rule that punished opinion would reach commentary and political speech that the law has good reason to leave alone.¹² The line therefore runs between approving and asking, and approval is not a request however harshly the speaker judges the intended victim.

Simple agreement fails for a related reason. The act belongs to the defendant, so a listener's enthusiastic response cannot supply what the defendant's own words lack.

The intent element, taken up in the next section, points the same way, because a remark made to no one in particular rarely shows a purpose that another person carry out the crime.

One boundary of the act remains unsettled, and it concerns the audience. The request need not be a private communication to a single individual, and a charge alleging that the defendant urged a number of people to commit murder and robbery from a public platform has been held sufficient.¹³ Yet there is authority that a general solicitation by publication to a large and indefinable group is not criminal solicitation.¹⁴ The reasoning is structural. The farther a message moves from a request aimed at identifiable listeners, the closer it comes to advocacy, which raises the free-speech limits examined later in this chapter. On a problem involving a crowd or a broadcast, the safer course is to say that a request to a group present before the speaker fits the rule and that a message to an open-ended public is contested.

Specific Intent

The act element asks what the defendant said or did, and the intent element asks what the defendant wanted to happen as a result. At common law the solicitor must act with the specific intent that the person solicited actually commit the crime.¹⁶ That mental state has two parts: the intent to perform the acts that make up the solicitation, and the intent that the other person commit the solicited offense.¹⁷ The first part means the communication was deliberate, rather than an accident, a misunderstanding, or words spoken to no one in particular, and it is rarely disputed because a person who writes a letter or speaks to a listener ordinarily means to do so. The second part decides most cases, because it demands a purpose, a conscious aim that the crime be committed, and, as the overview of the elements explained, merely foreseeing or welcoming the crime falls short of it.

The offense is built this way because of what it punishes. The act is most often nothing more than speech.¹⁸ Speech is an unreliable guide to purpose on its own, because the same sentence can be a serious attempt to hire someone, a bitter joke, a figure of speech, or a provocation meant to see how the listener will react. If liability turned on the words alone, or on what the listener happened to do afterward, a speaker could be convicted because someone else took a remark more seriously than it was meant. Requiring the purpose that the crime actually be committed ties liability to the speaker's own aim, and it reserves the offense for the person whose request is dangerous because the speaker wants the crime done and is trying to enlist someone to do it. The prisoner in the earlier example who thought aloud about killing another inmate shows the point from the other side: the remark was addressed to no one and asked nothing, so it carried no purpose that anyone else act.

Direct proof of a private purpose is rare, so the factfinder infers it from the circumstances surrounding the request.

Each fact that moved the answer is a circumstance a factfinder may weigh. The tone of the remark, whether it named a crime, whether it came with a price, whether the speaker knew the listener to be willing, and how the speaker behaved afterward all bear on what the speaker was trying to accomplish. No single circumstance controls. An offered price makes a claim of jest hard to believe, while a casual manner does not excuse a request that is otherwise plain, so a joking tone is evidence about purpose and never a defense by itself. The inquiry also looks only at the moment of the request. What the listener does next does not itself create the speaker's intent, which is why Y's vandalism in the first scene leaves X's liability where it was.

Step four does the real work, and it explains a category that students often overlook. A request can be meant seriously and still lack the required purpose when the speaker is after some end other than the crime itself. A speaker who makes a proposal to test a coworker's honesty, or to find out whether the listener would report it, has deliberately communicated, so the first part of the mental state is met, but the aim is not that the listener commit the offense, so the second part is missing. The later treatment of good-faith law-enforcement requests applies the same distinction between a request meant to produce a crime and a request meant to learn who is willing to commit one.¹⁹

The object of the solicitor's purpose is also broader than the usual picture suggests. In the ordinary case the solicitor intends that the listener commit the crime as the principal, as when A asks C to kill D. Yet the requirement is also met when the solicitor asks the listener to get involved in the scheme in any way that would make the listener complicit in the crime if it occurred, so it is criminal to ask one person to solicit a third, to join a conspiracy, or to aid and abet the offense.²⁰ The reason follows from what the intent element is meant to find. A solicitor who asks C to locate someone willing to do the killing wants D dead and is enlisting people to bring that about, which is the same purpose as a solicitor who asks C directly, with one more link in the chain.

The wording of the rule also marks its edge. The involvement requested must be of a kind that would make the listener a party to the crime, so a request for help that would not do so does not carry that purpose.

A last point concerns how a defendant may contest the element. Because specific intent is a mental-state requirement, a defendant charged with solicitation may offer evidence bearing on whether the required purpose was formed. Courts in the nineteenth century came to admit evidence of voluntary intoxication for that limited use, as proof that a required mental state was absent and not as an excuse for the crime.²¹ States have not all kept that rule, and in Montana v. Egelhoff the Supreme Court refused to condemn as unconstitutional a state statute barring consideration of voluntary intoxication on mental state, while noting that a significant minority of states take that position.²² Whether intoxication can negate a solicitor's purpose therefore depends on the jurisdiction's rule.

Completion at the Request

The act and intent elements fix what the solicitor must have done and wanted, which leaves the question of when the offense becomes complete. Solicitation is complete at the moment the defendant, with the required specific intent, makes the request.²⁴ The person solicited does not have to agree, take any step toward the crime, or respond in any way. Everything the law demands of the solicitor has therefore happened by the time the request is made, so nothing the listener does afterward can add to the offense, and nothing the listener fails to do can take away from it.

The reason lies in where the danger sits. A request to commit a crime is harmful because it tries to recruit another person into the crime, and the solicitor alone forms that purpose and puts it into action. If liability required acceptance or action by the listener, whether a dangerous person was punished would turn on the fortuity of someone else's reaction, and the same request from the same speaker would be a crime when the listener happened to be willing and no crime when the listener happened to say no. Completing the offense at the request also lets law enforcement step in while the plan is still only a proposal, before it matures into a crime that is harder to stop. The cost of this design is that the offense reaches very early conduct, which is why solicitation is regarded as a controversial crime.²⁵

The plainest application is the refused request. When A asks C to kill B and C immediately rejects the scheme, there is never any agreement between them, and C has committed no crime at all.²⁶ A is nonetheless guilty of solicitation, because of A's intent that B be killed and A's effort to get C to do it. The result is the same if C says "No way" and walks off without a further word, since A's liability was fixed when the request was made.

The boundary of the rule runs through the request itself. Until some request or urging has been made, there is nothing to complete.

Merger means that A is not punished separately for the request and for the more serious offense it produced, since the request is the earliest stage of the same wrong. Solicitation therefore stands alone as the charge only when the request goes no further than the request. Conspiracy and attempt are developed in their own right later in this chapter, and what matters here is the direction of the ladder: each response above the refusal adds liability on top of a solicitation that was already complete.

Students who have just worked through conspiracy tend to look for an agreement, and that instinct causes errors here. In conspiracy the agreement is the act that completes the offense, while in solicitation the request is the act, so a refusal is no defense to solicitation and leaves the solicitor fully liable. A related question is what happens when the message never reaches the person it was meant for, such as a letter that is intercepted. That problem is treated with the Model Penal Code's approach to uncommunicated solicitations.

Solicitation and Free Speech

Because solicitation is committed almost always by speaking or writing, the offense sits directly on territory the First Amendment protects. The elements already covered guard part of that boundary: the act element excludes a person who merely expresses general approval of criminal conduct or is otherwise exercising the right to speak, and the intent element demands that the speaker want the crime done.³¹ The Constitution adds a floor of its own, and the two sources overlap at the first step, since both common-law solicitation and the First Amendment require that the speaker specifically intend that the audience engage in a particular kind of criminal conduct.³² The First Amendment then asks for something further: speech may be punished only when the speaker incites criminal action, and not when the speaker merely advocates it.³³

The governing test comes from Brandenburg v. Ohio, where a speaker at a filmed gathering of hooded figures was convicted under a criminal syndicalism statute that punished anyone who advocated the duty, necessity, or propriety of violence as a means of political reform.³⁴ The Court held that a State may not forbid advocacy of force or of law violation unless the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.³⁵ The Ohio act failed because it defined the crime by mere advocacy without separating that advocacy from incitement to imminent lawless action.³⁶ In reaching that result the Court overruled Whitney v. California, which had allowed a State to outlaw advocacy of violent means for political change on the theory that such advocacy by itself endangers the State.³⁷

Each part of the test has its own reason. The requirement that the speech be directed to inciting lawless action ties the constitutional inquiry to the speaker's purpose, which is the same purpose the specific-intent element already examines. The requirements of imminence and likelihood look to what the words do in the setting where they are spoken. A command to act at once, delivered to a crowd that can carry it out, leaves no room for reply or reflection, while an argument that people ought someday to act is a contribution to public debate that listeners can weigh and answer. If abstract advocacy could be punished whenever some listener later acted on it, the speaker's liability would turn on the weakest-minded person in the audience, and any unpopular critic would be exposed to prosecution for the reaction of others. That is the same fortuity problem the rule on completion at the request removes from the ordinary offense.

The contrast between two speakers at the same rally shows where the line falls. A person who tells an audience that they ought to burn down city hall is not likely to be convicted, even if, to the speaker's delight, some listeners go on to burn it down, whereas a person who tells the audience that they must burn it down now most likely will be.³⁸ The first speaker states a view about what should happen at some unspecified time, and the second gives an instruction to act immediately. The listeners' later conduct does not shift the first speaker across the line, because the inquiry looks to what the words were directed to and likely to produce when spoken, so later arson by listeners does not turn abstract advocacy into solicitation. The same logic cuts the other way for the second speaker, whose liability does not depend on whether anyone in the crowd obeys.

Two refinements keep the contrast from hardening into a test of vocabulary. First, an exhortation that sounds mild on paper may be known by both the speaker and the audience to be a call for immediate action, and in that setting conviction may be appropriate.³⁹ Second, a statement that looks inciting in the written record may have been intended as political hyperbole, which makes conviction improper, and the Court's decision in Watts v. United States is the usual authority for that point.⁴⁰ Both refinements direct the factfinder to the meaning the words carried in context, rather than to how they read in a transcript.

Most solicitation prosecutions never reach this problem, because the typical defendant has made a private proposal rather than a public argument. The Court has held that offers to engage in illegal transactions are categorically excluded from First Amendment protection, so a person who privately asks another to commit a murder for pay stands outside the protected zone altogether.⁴¹ The incitement test therefore matters chiefly for public, ideological speech, and even there legislatures must draft with care: courts of appeals in the Fourth and Ninth Circuits found the federal Anti-Riot Act's incitement provision overbroad although it was already limited to speech advocating acts of violence.⁴² The word solicitation also appears in unrelated rules, such as regulation of the time, place, and manner of soliciting money on public streets and the oversight of solicitation by lawyers, and those rules are governed by their own First Amendment standards without defining the crime of asking another person to commit an offense.⁴³

Step three does the real work, since a speaker who has clearly named a crime and plainly wants it committed still escapes liability when the words amount to advocacy of lawbreaking at some distant time. Students tend to treat a violent word or a bad motive as enough, and neither of those satisfies the incitement requirement without directed, imminent, and likely action.