Factual Impossibility

Factual Impossibility

Earlier sections showed that solicitation is complete the moment the solicitor, with the required intent, makes the request, and then followed that request through each response the person asked might give. A different problem arises when the request was doomed from the start because of a fact the solicitor did not know. At common law, factual impossibility is no defense to solicitation.¹ Factual impossibility describes a situation in which the crime cannot physically be accomplished because of how things stand in the world, as when a pickpocket reaches into an empty pocket.² The law answers by measuring the solicitor's culpability by the circumstances as the solicitor believed them to be, so a request that could not have succeeded remains a solicitation.³

The rule follows from what the offense punishes. The wrong in solicitation lies in the solicitor's purpose that someone commit a crime and in the act of enlisting another toward it, and both are fully present when the request is made. Whether the target is still alive, or whether the person asked is capable of acting, turns on facts outside the solicitor's knowledge that the solicitor did nothing to bring about. If those facts could excuse the solicitor, two people who spoke the same words with the same purpose would be treated differently because of a circumstance neither of them knew, and the one who happened to ask the wrong person would be rewarded for ignorance. Measuring culpability by belief keeps the inquiry on the mental state that makes a request dangerous in the first place.

The same measure reaches the person who was asked. It is no defense that, unknown to the solicitor, the person solicited could not commit the crime, and it is likewise no defense that the person solicited is irresponsible or has an immunity to prosecution or conviction for the crime.⁴ The Model Penal Code says the same thing in § 5.04(1): it is immaterial that the person solicited is irresponsible or immune, and immaterial that the solicitor or the person solicited lacks a position or characteristic that is an element of the crime, so long as the solicitor believes that one of them has it.⁵ Each of these facts describes the listener, and the listener's condition changes nothing about what the solicitor wanted or did. The most familiar version is a request addressed to an undercover officer who never meant to act: the request was complete when made, and the solicitor believed the listener to be a willing criminal, so the officer's true role leaves the offense intact.⁶ Subsection (2) of the same Model Penal Code section creates a separate defense for a solicitor who could not be guilty even if the criminal object were achieved, a limit taken up in the later section on further limits on liability.⁷

Because the measure is belief, it works in the other direction as well. A solicitor who honestly believes that the requested conduct is lawful lacks the specific intent that another person commit a crime, and without that intent there is no solicitation, even if the conduct turns out to be criminal. The reason is that the intent element asks whether the solicitor wanted a crime to occur, and a request to do what the solicitor thinks is lawful is not a request for a crime. The belief that matters here is a belief about the facts, such as who owns a piece of property. This is the same rule that convicts the solicitor in the impossibility cases, applied from the opposite side.

The usual error is asking whether the solicitation could have worked, a question the rule makes irrelevant. The facts to scan for are a target who could not be harmed, a listener who could not or would not have acted, and any sign that the solicitor misunderstood the facts in a way that made the request look lawful. The first two leave the solicitor guilty, and only the last can remove the intent.