Concept
Further Limits on Liability
Solicitation
Further Limits on Liability
Two limits close the solicitation doctrine, and each marks a place where applying the elements mechanically would punish a request that the rest of the criminal law treats as unobjectionable. The first concerns the person making the request: a solicitation is not criminal when the solicitor could not have been guilty of the target crime, whether as principal or as accomplice, had it been carried out.1 The second concerns the purpose behind the request: a person who furnishes an opportunity to commit a crime in good faith, to gather evidence against someone already willing, has not committed solicitation.2 Both limits apply after the earlier elements are met, meaning a request made with the specific intent that the other person commit the crime. They remove liability even then, which is why the doctrine ends with them.
The two limits rest on different logic. The first protects the design of the substantive offenses, since the preliminary crime should not reach further than the completed crime would. The second protects a method of enforcement that could not otherwise exist. Each gets its own rule and reason below, beginning with the solicitor who could not be liable for the completed offense.
Solicitor Who Could Not Be Liable
The defense is stated in terms of the completed crime. It is a defense to a charge of solicitation that, if the criminal object were achieved, the solicitor would not be guilty of a crime under the law defining the offense or under the law of accomplice liability.3 The reasoning starts from what solicitation punishes, which is an effort to bring about a completed crime. If the completed crime would not be the solicitor's crime, the request seeks a result that the law declines to treat as the solicitor's wrongdoing. Punishing the request would then make the preliminary offense harsher than the offense it leads toward. The law of solicitation would conflict with the policies expressed in the definitions of the substantive crimes if the rule read otherwise.4
Two situations produce the defense, and each has its own source. In the first, the crime is defined so that the solicitor's participation is inevitably incident to its commission, as when the solicitor is one of the two necessary parties and the legislature defined the offense solely in terms of the other. By choosing to define the offense that way, the legislature is taken not to have intended liability for the party left out.5
The second situation arises when the statute that the listener would violate was enacted to protect persons such as the solicitor. A solicitor in that position is not treated as an accomplice to a crime aimed at shielding people like the solicitor, so the request is not criminal either.6
The defense is narrower than it first appears, and the treatise discussion marks its edge. The mere fact that the solicitor was legally incapable of committing the crime directly does not give the solicitor a defense when asking another person to do it.7 The test asks whether the law of the offense or of accomplice liability would reach the solicitor if the crime were completed, so a solicitor who lacks the status of a principal can still be liable if accomplice liability would catch the request. The test also looks at the solicitor's own position and not at the listener's. It is no defense that, unknown to the solicitor, the person solicited could not commit the crime, nor that the person solicited is irresponsible or immune from prosecution, because culpability is measured by the circumstances as the solicitor believes them to be.8 That last point matches the treatment of factual impossibility earlier in this chapter.
On an exam stem, the trap is treating the solicitor's own incapacity as the defense. A solicitor who could not commit the crime alone but would be an accomplice to it when the listener acts has no defense, and the defense applies only when neither principal liability nor accomplice liability would reach the solicitor.
Good-Faith Law Enforcement Opportunities
The second limit protects a technique that enforcement of some crimes depends on. Law enforcement officers, and others acting on their behalf, often encourage suspects to engage in criminal conduct as a way of identifying persons who are willing to commit certain offenses. The practice is most common for crimes such as prostitution, gambling, and sale of narcotics, which involve only willing participants and would otherwise go undetected.10 The mechanism explains why the law needs this limit. Those crimes have no complaining victim to report them, so the only way to find an offender is for someone to offer the opportunity and see who accepts. If the officer who made the offer were guilty of solicitation, the technique would be a crime in itself and the offenses it exists to detect would go unenforced.
The rule has a purpose requirement and a belief requirement. It is not the crime of solicitation for a person who has reason to believe another is willing to commit a crime to furnish an opportunity for the offense, if the purpose is, in good faith, to secure evidence against a guilty person and not to induce an innocent person to commit a crime.11 Each part answers a different risk. The reason-to-believe requirement keeps the protection from covering officers who offer opportunities to people who have shown no inclination toward crime. The good-faith purpose requirement separates an officer whose aim is evidence from a solicitor whose aim is that the crime be committed. It also removes a temptation, because an officer who wants arrests has a motive to manufacture offenders, and a rule that protected any encouragement would reward that motive. The protection also has an outer boundary. The practice is permissible only if the inducements are not so extreme as to constitute entrapment, the separate doctrine that protects people pushed into crime by the government.12
The pair differs in the facts that matter most: what the person offering the opportunity had reason to believe about the target, and why the offer was made. A second variation shows the outer boundary. An officer who offers the same opportunity to a suspect with a record of dealing is within the rule. If the officer instead escalates, pressing a reluctant suspect again and again with inducements so extreme that they amount to entrapment, the practice is no longer permissible and the protection does not carry the officer through.13
On an exam stem, the first fact to find is the person making the offer: an officer or someone working with officers, with a purpose of gathering evidence. The next facts are what that person knew about the target's willingness and how hard the target had to be pushed. The usual error is assuming that good faith protects any amount of pressure, because inducements extreme enough to be entrapment fall outside the permitted practice, and an offer made to induce an innocent person is outside it as well.
Solicitor Who Could Not Be Liable
Solicitation law contains a test that runs through the completed crime. A solicitor has a defense when, had the person solicited done what was asked, the solicitor would not have been guilty of the crime, whether under the law defining the offense or under the law of accomplice liability.15 The Model Penal Code states the same defense for solicitation and conspiracy in § 5.04(2), measuring the actor's liability by the offense definition and by the Code's accomplice provisions.16 The inquiry therefore asks a counterfactual question: if the crime had been committed, whose crime would it be? A request can satisfy every element of solicitation, including the specific intent that the other person commit the crime, and still be protected when the answer is that the completed crime would not be the solicitor's.
The reason for the defense comes from what solicitation punishes, which is an effort to bring about a completed crime through another person's act. When the completed crime would not be the solicitor's crime, the request aims at a result that the law has declined to treat as the solicitor's wrongdoing, and punishing the request would make the preliminary offense harsher than the offense it points toward. That outcome would set the law of solicitation against the policies built into the definitions of the substantive crimes, which is the conflict the defense exists to prevent.17 The legislature has already decided something about people in the solicitor's position, either by leaving them out of the offense or by enacting it for their benefit, and solicitation law should not override that decision. Two settings produce this situation, and each rests on a different legislative judgment.
In the first setting, the crime is one in which the solicitor's participation is inevitably incident to its commission. Where an offense requires two parties and the legislature defined it solely in terms of one of them, leaving the other out is read as a decision not to impose liability on a person in that position.18 A solicitor who asks to be that second party is therefore asking for something the legislature chose not to punish, and the request is not criminal either.
The second setting arises when the statute the person solicited would violate was enacted to protect persons such as the solicitor. A member of the protected class is not treated as an accomplice to a crime aimed at shielding that class, and the request that would have produced the crime is not solicitation either.19 Statutory rape laws fit this setting, since they exist to protect minors from adults.
The defense has a limit that exam questions probe often. The mere fact that the solicitor was legally incapable of committing the crime directly gives no defense when the solicitor asks someone else to do it.20 The reason lies in the object of the test, which is whether the solicitor could be liable for the completed crime, and accomplice liability can reach a person who lacks the status needed to be the principal. The Code reinforces the point by treating it as immaterial that the solicitor lacks a position that is an element of the crime, so long as the solicitor believes that either the solicitor or the person solicited has it.21
The test looks at the solicitor's position and leaves the listener's circumstances out of it. It is no defense that, unknown to the solicitor, the person solicited could not commit the crime, and it is no defense that the person solicited is irresponsible or immune from prosecution, because the solicitor's culpability is measured by the circumstances as the solicitor believes them to be.22 This follows the same reasoning as the treatment of factual impossibility earlier in this chapter, since the solicitor's purpose is equally culpable whether or not the listener could have carried it out.
On an exam stem, the facts to find are the roles the offense creates and the class the statute protects. A stem that stresses what the solicitor could not have done alone invites the error of treating the solicitor's own incapacity as the defense. The defense applies only when neither principal liability nor accomplice liability would reach the solicitor for the completed crime.
Good-Faith Law Enforcement Opportunities
Solicitation law has to leave room for an investigative method that some offenses cannot be detected without. Prostitution, gambling, and the sale of narcotics involve only willing participants, so there is no victim to call the police, and the usual way to find an offender is for an officer, or someone working with officers, to offer the opportunity and see who accepts.24 If every such offer counted as solicitation, the officer making it would be committing a crime, and the offenses the technique exists to expose would go uninvestigated. The law therefore carves the officer's offer out of solicitation, and it attaches conditions so that the carve-out cannot become a license to manufacture crime.
The carve-out has two conditions. A person who has reason to believe another is willing to commit a crime does not commit solicitation by furnishing an opportunity for the offense, if the purpose is, in good faith, to secure evidence against a guilty person and not to induce an innocent person to commit a crime.25 Each condition answers a different risk. The reason-to-believe requirement ties the offer to a target who has already shown some willingness, so the officer is testing a suspect and is not recruiting a stranger. The good-faith purpose requirement separates gathering evidence of a crime the target is ready to commit from procuring a crime that would otherwise never happen. It also removes a temptation: an officer whose success is measured in arrests has a motive to create offenders, and a rule that shielded any encouragement would reward that motive. The outer boundary comes from a separate doctrine, because the practice is permissible only if the inducements are not so extreme as to constitute entrapment, the defense for people the government pushes into crime.26 How far that limit reaches belongs to the treatment of entrapment; for solicitation, the protection simply ends where entrapment begins.
On an exam stem, the facts to find are who made the offer, what that person knew about the target's willingness, and how hard the target had to be pushed. The common error is treating an officer's status as automatic immunity, because the protection depends on the reason to believe and the good-faith purpose, and it ends once the inducements amount to entrapment.