CHAPTER 11

Solicitation

OVERVIEW

Some people always want someone else to do the dirty work. As with many things in life, this is also true with crime. Some people will try to get others to commit a crime rather than do it themselves.

Solicitation punishes anyone who deliberately encourages someone else to commit a crime. Though in most cases the solicitor will be the one who first thinks of committing a crime, he doesn’t have to be. A person is also guilty of solicitation if he eggs on someone who has already decided to commit a crime.

In theory, the ability to punish solicitors is a useful law enforcement device. As with attempt, police can prevent the commission of a more serious crime by arresting the initiator as soon as he has acted with the necessary mens rea to commit a crime. Unlike attempt, however, proximity to the ultimate harm intended is irrelevant. Thus, it makes no difference whether the effort to persuade has been successful or whether the person solicited ever begins to commit the desired crime. Even criminal encouragement doomed to fail from the outset (such as offering money to an undercover police officer to kill someone) will establish solicitation.

Because it can reach so far back in time and space from the crime solicited and because it sets the threshold of crime without any concern for prospects for its success, solicitation is the most inchoate of inchoate crimes. (Who said Latin was a dead language!) Perhaps setting this threshold so early can be justified by the fear that solicitation may give rise to cooperative criminal effort and its special dangers. (Indeed, solicitation has been thought of as an attempt to conspire.) In addition, a solicitor may be a more intelligent and more dangerous criminal because he works through others. However, one can also argue that mere encouragement without agreement by anyone else is not socially dangerous because the resisting will of an independent moral agent stands between the solicitor and the commission of the intended crime.

Solicitation also permits the arrest of people who have shown themselves to be dangerous because they have acted with the purpose to cause the commission of a crime. True, the criminal law does not punish for thoughts alone, but solicitors have spoken words or engaged in other conduct designed to implement their criminal intent. Thus, solicitation adheres to this basic principle of the criminal law. On the other hand, a solicitor may not be dangerous precisely because he has shown he is unwilling to commit the crime himself or at least alone. He may really be a reluctant lawbreaker. In any event, several purposes of the criminal law, including retribution, rehabilitation, and incapacitation, can be served by convicting solicitors.

Like attempt, solicitation is a relatively recent creation of the common law. It developed during the nineteenth century and covered only solicitation to commit felonies or serious misdemeanors. Generally, solicitation was punished as a misdemeanor. Today, some states limit the crime to solicitation of serious felonies only. Others provide for degrees of solicitation, the various degrees depending on the seriousness of the crime solicited.