Concept
Solicitation Among Inchoate Crimes
Solicitation
Solicitation Among Inchoate Crimes
Solicitation is the earliest of the related offenses that punish a criminal plan before the harm occurs, and its connections to the others are easiest to see by following a single request through every response it can draw. A wants an enemy, B, killed and, lacking the nerve to do the deed personally, asks C to do it. What A is guilty of then depends on what C does with the request.
Each rung adds a fact to the one beneath it, and the bottom rung demands the least. For solicitation it is enough that the actor, intending that another person commit a crime, has enticed, advised, incited, ordered, or otherwise encouraged that person to commit it, and the crime solicited need not be committed.5 A is punished on the fourth rung for the combination of a bad state of mind, the intent that B be killed, and bad conduct, the importuning of C to do the killing. That combination explains why C's refusal leaves A's exposure untouched. Agreement lifts the case to conspiracy, steps toward the crime produce attempt, and the completed crime brings in accomplice liability. Conspiracy and attempt each have their own readings, so the subsections below take up only how each relates to solicitation, one relationship at a time.
Solicitation Versus Conspiracy
The dividing line between these two offenses is agreement. Conspiracy requires that two people reach one, and solicitation requires nothing from the person asked. The reason follows from who does what: a request is an act the solicitor completes alone, while an agreement exists only when a second person joins. When C rejects A's homicidal proposal at once, there is never an agreement between them, C has committed no crime, and A is still guilty of solicitation because A intended the killing and importuned C to carry it out.6 The refusal removes any possibility of conspiracy but leaves the solicitation intact, since that offense was complete when the request was made with the required intent.7
Acceptance changes the situation in kind, which explains why conspiracy ranks above solicitation. Before an agreement, one person wants a crime committed and has tried to recruit help. After it, two people are committed to the crime, each reinforcing the other's resolve, and the plan is correspondingly more likely to be carried out. The law marks that shift by attaching a separate and more serious offense to the agreement: where C agrees to A's plan but the killing is never accomplished or even attempted, A and C are both guilty of conspiracy.8 The lower rung is graded accordingly, since solicitation statutes typically make the offense one grade below the crime solicited, although some authorize punishment equal to that for the solicited crime.9
Because the request satisfies solicitation at the moment it is made, an accepted request does not erase the solicitation. The same conduct then supports both offenses, and conspiracy is the graver one. Whether a jurisdiction requires something beyond the agreement itself for conspiracy, and whether a defendant may be convicted of both offenses, are questions the conspiracy reading develops. The working question here is simply what response the facts show.
The request was identical in both versions, and only the response moved the answer. When a fact pattern describes a request followed by a reply, the reply decides which rung applies. The usual error is demanding the other person's agreement before finding solicitation, which leads to acquitting the person who asked whenever the answer was no. A flat refusal leaves solicitation in place, and a response showing that the two actually agreed adds conspiracy on top of it.
Solicitation Versus Attempt
The relationship between solicitation and attempt turns on whether a request, standing alone, counts as an attempt to commit the crime requested. A large majority of jurisdictions say it does not. The ladder shows why: attempted murder appears only when C proceeds with the plan to kill B and fails, which means someone has actually moved toward carrying out the crime.11 The request itself is a complete offense the moment it is made, so the law has no need to treat it also as the first step of an attempt.12 Attempt, which has its own reading, calls for specific intent together with conduct that goes beyond preparation toward the crime. A request is conduct aimed at persuading another person, and it leaves the decision whether the crime will be committed with the person asked.
Treating every solicitation as an attempt would also dissolve the separate offense. Solicitation exists so that a person who asks for a crime can be punished even though nothing has been done toward carrying it out, and statutes typically grade it one level below the crime solicited.13 If the request were itself an attempt, every solicitation could be charged under the attempt label, and the distinct, lower-graded offense would have no work left to do.
A minority of jurisdictions take a different view and recognize attempt where all of its elements are met, and some find attempt on particular facts, generally where the solicitor's conduct has moved beyond the request toward carrying out the crime. In each of these lines the added conduct carries the attempt charge, and the request does not. The minority position therefore changes which label may be available on a given set of facts without turning a bare request into an attempt.
On an exam stem that asks whether a person who only asked for a crime is guilty of attempt, the majority answer is no, and the remaining facts are where to look for anything more. Treating the request as a substantial step is the error to avoid. The question to ask is whether the solicitor did anything beyond asking that would satisfy the attempt elements in a jurisdiction willing to recognize attempt on those facts.
Solicitor as Accomplice
The top of the ladder is reached when the person asked actually commits the crime. If A solicits B to commit a crime and B then commits it in response to A's solicitation, A is generally liable as an accomplice for the crime B has committed.15 The reason is that a solicitor who intended the crime and prompted it has intentionally helped bring it about, and liability for a completed crime follows from that help. A's liability therefore rises with what C does: if C kills B, A is guilty of murder along with C, and if C tries and fails, A is guilty of attempted murder.16 Solicitation covers the gap when no crime follows the request, and accomplice liability takes over when one does.
The rule has exceptions, because accomplice liability depends on the definition of the offense the other person committed. The first exception arises when A solicited B to commit the crime with A, and the crime is of a kind in which A's participation is inevitably incident to its commission. When a legislature defines an offense solely in terms of one of two necessary participants, the sensible inference is that it did not intend to impose liability on the other.17 The second exception arises when the statute B violated was enacted to protect a class of persons that includes A, in which case A should not be treated as an accomplice to B's crime.18 Both exceptions ask whether punishing A as an accomplice would contradict what the legislature meant when it wrote the offense.
The request had the same structure in both versions. What moved the answer was the legislative purpose behind the offense the person asked committed. On an exam stem in which the person asked goes ahead and commits the crime, stopping at solicitation understates the solicitor's liability, so the analysis should move up to the completed offense and then check whether either exception removes the solicitor from the statute's reach.
Solicitation Versus Conspiracy
The dividing line between solicitation and conspiracy is agreement. Conspiracy at common law requires two or more people who agree to pursue an unlawful end, and the act that completes it is the agreement itself, which can be express or implied.20 Solicitation asks nothing of the person approached. It is enough that the actor, intending that another person commit a crime, enticed, advised, incited, ordered, or otherwise encouraged that person to commit it, and the crime solicited need not be committed.21 The difference follows from who must do what. A request is an act the solicitor can finish alone, while an agreement exists only when a second person joins in, so conspiracy depends on a response that solicitation never requires.
The standard sequence shows how a single request can end in either offense. A wants an enemy, B, killed and, lacking the nerve to do it personally, asks C to do the killing. If C immediately rejects the scheme, no agreement ever forms between them, C has committed no crime, and A is guilty of solicitation because A intended that B be killed and importuned C to do it.22 If instead C agrees to the plan and the killing is never accomplished or even attempted, A and C are both guilty of conspiracy.23 The request is the same in both versions, and C's answer is the only fact that moves the charge. A's exposure survives a refusal because the solicitation was complete when the request was made with the required intent, and nothing C does afterward can undo it.
Agreement ranks higher because it changes the situation in kind. Before it, one person wants a crime committed and has tried to recruit help. After it, two people are committed to the plan and reinforce each other's resolve, which makes the crime more likely to happen and justifies the heavier charge. Solicitation supplies the lower rung so that a recruiter does not escape merely because the person recruited had the good sense to refuse. Once C does agree, the same facts satisfy the elements of both offenses, but the solicitation merges into the conspiracy, so A and C are prosecuted for conspiracy to commit murder and A's earlier request is not punished separately.24 The merger runs in a particular direction. Solicitation also merges into the target crime when the person solicited commits or attempts it, whereas at common law a conspiracy does not merge into the completed target crime and can be punished alongside it.25
The relationship also has a conceptual side. A solicitation may consist of nothing more than an attempt to conspire with another person to commit an offense, which is why it is called a double inchoate offense, meaning an inchoate offense whose object is itself an inchoate offense.26 Seen that way, the two charges are two outcomes of one effort to enlist help. When the other person refuses, the effort fails and solicitation remains, and when the other person accepts, the effort succeeds and conspiracy exists. One refinement matters because most jurisdictions require an overt act in furtherance of the agreement in addition to the agreement itself.27 Where two people have agreed but nobody has yet taken any step, conspiracy may be unavailable in such a jurisdiction, while the request has already satisfied solicitation. The conspiracy reading develops that requirement in full.
The request was identical in both versions, and only the response changed the answer. On a fact pattern that describes a request followed by a reply, the analysis is best run in a fixed order, because the reply decides which offense applies.
The usual error is treating a refusal as the end of liability, which acquits the person who asked whenever the answer was no. The opposite error is stopping at solicitation when the facts show the other person joined the plan, since conspiracy is then the better charge.
Solicitation Versus Attempt
The conspiracy comparison turned on how the person asked responds. Attempt raises a different question, which is whether the request itself, with nothing added, counts as the solicitor's own step toward the crime. The argument for treating it that way has some force. Attempt requires an intent to commit the target crime plus conduct that goes beyond mere preparation, and the Model Penal Code sets that threshold at a substantial step that strongly corroborates the actor's criminal purpose.29 A person who asks someone to kill an enemy has plainly acted and plainly wants the killing to happen. Even so, a large majority of jurisdictions answer no. Only a small minority recognizes attempt liability on a solicitation, and then only when all of the elements of attempt are satisfied.30
The majority rule rests on two supports that work separately. The first concerns what attempt measures. Attempt asks how far this defendant has moved toward committing the crime, and a solicitor's purpose is that someone else commit it. Between the request and the crime stands another person who may refuse, so the solicitor has handed the next step to a free agent. Many states therefore hold that, whatever acts the solicitor performs, there is no attempt, because it is not the solicitor's purpose to commit the offense personally.31 The second support concerns grading. Solicitation is an independent offense that jurisdictions rarely punish as severely as the crime solicited, and in most jurisdictions it is a less serious offense than attempt.32 If every request were itself an attempt, the heavier charge would be available on the same words as the lighter one, and the line the law draws between asking for a crime and trying to commit it would disappear.
Courts that confront the question have taken four positions, and listing them from most to least willing to find attempt shows where the majority rule sits.33
The Model Penal Code Commentary reports that the trend has run toward the last two positions.34 Those two views share a feature: neither lets the request carry the attempt charge by itself. The disagreement is over whether added conduct can carry it, and how much is needed. Some courts following the substantial-step approach hold that a solicitation can be an attempt when it amounts to a substantial step under the circumstances, and the Model Penal Code's own list of qualifying acts includes soliciting an innocent agent to engage in conduct that constitutes an element of the crime.35
Where a jurisdiction does find attempt, it almost always points to something beyond the bare request. A few treat solicitation alone as enough, others require solicitation plus conduct such as paying money or helping with plans to carry out the crime, and the more common route treats the solicitation as an attempt when the crime would be complete or nearly complete upon the solicitee's acceptance, with bribery as the example.36 The bribery example shows the logic. An offer of a bribe that an official need only accept leaves the offeror nothing further to do, so the gap between request and crime has nearly closed and the worry that the request is mere preparation falls away. An offer to pay for a killing leaves a wide gap, because someone else must still plan and carry out the killing. The facts of Mettler v. State show what added conduct looks like: a father left on his eighteen-year-old daughter's bed an envelope holding a five dollar bill, half of a hundred dollar bill, and a letter promising the other half if she would have sexual intercourse with him. Those acts were solicitation of incest, and whether they were also attempted incest depends on which of the four positions a jurisdiction follows.37 The delivered half-bill is the kind of offered reward that the second position treats as added conduct, while a jurisdiction that never allows attempt for a solicitor would stop at solicitation on any facts.
The strongest case for attempt arises when the person asked is an innocent agent, someone who does not realize that the requested conduct is a crime. The standard example is a defendant who asks a teenager to bring over what the defendant claims is his own car, when the car in fact belongs to someone else.38 The reason the argument is strong here is that no independent moral agent stands between the request and the crime. The teenager will do the physical act without any guilty mind, so the defendant is in effect committing the larceny through another person's hands, and the request functions as the defendant's own step toward carrying it out. Courts that demand dangerous proximity to completion remain cautious even in this setting and would not impose attempt liability unless the teenager accepted.39
When the person asked knows what the crime is, as a hired killer does, the analysis changes. Many courts require the solicitee to perform acts sufficient to constitute an attempt before the solicitor can be convicted of attempt, and a few courts refuse attempt liability in every such case because the solicitor never personally intended to commit the offense.40 On that stricter view the solicitor is guilty of solicitation, or of nothing, until the crime is completed, and then becomes an accessory to the completed offense. The reasoning follows from the free will in the middle: the hired killer's acts are the killer's own, so the solicitor can be charged with them only through accomplice principles. A defendant who asks a hired killer to murder B, where the killer takes no steps toward the crime, has therefore committed solicitation and not attempted murder in most jurisdictions.41 If the person asked only pretends to go along, as an undercover agent might, traditional doctrine does not treat that person as the solicitor's accomplice, so the pretender's steps cannot be charged to the solicitor, whose liability must rest on the solicitor's own acts.42
On an exam, follow the majority rule unless the facts supply one of the departures just listed. The usual error is treating the request as the substantial step, which converts every rejected request for a killing into attempted murder and erases the lower-graded offense the legislature created for exactly that situation. The facts to scan for are an innocent agent, an offer that the other person's acceptance would complete, or added conduct such as payment or plans. Absent one of those, the answer is solicitation.
Solicitor as Accomplice
The comparisons with conspiracy and attempt asked what the solicitor has done when the request is refused or is adopted as a plan. A third outcome remains: the person asked says yes and actually commits the crime. When that happens, the solicitor is liable as an accomplice for the offense the other person committed.44 If the person solicited goes far enough to be liable for attempt, the solicitor is likewise a party to that attempt. Solicitation stops being the operative charge at that point, because the solicitor now answers for the crime itself.
The reason is that encouragement is a form of assistance. A person who recruits or hires another before the crime resembles an accessory before the fact, someone who supplies help or encouragement ahead of the offense.45 While a request produces nothing, the only wrong is the request, and solicitation punishes exactly that. Once the request produces the crime, the solicitor has contributed to an actual injury and should answer for the injury, not merely for having asked. The same logic explains merger: the request is the first stage of the effort that ended in the crime, so the solicitation merges into the crime solicited when the solicited party commits or attempts it.46 Merger keeps one course of wrongdoing from being punished twice, once as the request and again as the offense the request brought about.
The progression is easiest to see when the request stays fixed and only the response changes. If Agnes asks Ben to murder Camille and Ben refuses, Agnes is guilty of solicitation. If Ben agrees and kills or attempts to kill Camille, Agnes is guilty of murder or attempted murder under complicity principles, rather than of solicitation. If Ben agrees but is arrested before any attempt, Agnes and Ben may face a conspiracy charge, and the solicitation merges into it.47
The general rule has exceptions, which the later section on further limits develops. Where the solicitor asked another to commit the crime together with the solicitor and the offense is defined so that the solicitor's participation is inevitably incident to it, the legislature is taken not to have meant to reach the solicitor. The same is true where the statute the other person violated exists to protect people in the solicitor's position.48 International criminal law draws the line differently. Under article 25(3)(b) of the Rome Statute, ordering, soliciting, or inducing is an accessorial mode of participation that produces liability only if the crime occurs or is attempted, so a refused request does not create liability under that provision.49
On a fact pattern, the response to the request fixes the label. A refusal leaves solicitation, an agreement without any step supports conspiracy, and a crime or attempt by the person asked makes the solicitor a party to that crime or attempt. The usual error is stopping at solicitation after the crime has been committed, which understates the liability of a person who set the offense in motion. The opposite error is calling a solicitor an accomplice when the person asked did nothing, since accomplice liability needs a crime or attempt by someone else to attach to.