§ 28.01 General Principles

§ 28.01 General Principles¹

[A] Definition

[1] In General

Subject to clarification below, a common law "solicitation" occurs when a person invites, requests, commands, hires, or encourages another to engage in conduct constituting any felony, or a misdemeanor relating to obstruction of justice or a breach of the peace. Solicitation is a common law misdemeanor, regardless of the grade of the offense solicited.

Until the adoption of the Model Penal Code, most state penal codes did not contain a general criminal solicitation statute.² Instead, solicitations to commit specific offenses, such as murder and prostitution, were prohibited. As a result of the Code's influence, most states now have a general solicitation statute that covers all crimes or, at least, all felonies. However, many of these states have followed the common law approach of treating solicitation as a lesser offense than the crime solicited.³

[2] Mens Rea

Common law solicitation is a specific-intent crime. A person is not guilty of solicitation unless he intentionally commits the social harm of the inchoate offense—that is, he intentionally invites, requests, commands, hires, or encourages another to commit a crime—with the specific intent that the other person consummate the solicited crime. For example, D1 is not guilty of solicitation if he jokingly suggests to X1 that X1 steal V1's automobile, even if X1 takes the suggestion seriously and commits the crime.

Similarly, suppose that pickpocket D2 encourages X2 to pick V2's pocket. D2 knows that V2's pocket is empty, but X2 is unaware of this. If X2 follows D2's suggestion and puts his hand in V2's empty pocket, X2 is guilty of attempted larceny because, as with criminal attempts, the factual impossibility of committing the larceny does not serve as a defense to X2's conduct.⁴ D2, however, should not be guilty of common law solicitation, because he knew that X2 could not succeed in the larceny; therefore, D2 lacked the specific intent required for solicitation.⁵

In contrast to the last example, suppose that D2, like X2, is unaware of the fact that V2's pockets are empty when he encourages X2 to pick V2's pocket. Under these changed circumstances, D2 is guilty of solicitation because he intended for the crime (larceny) to be committed.

[3] Actus Reus

The actus reus component of a solicitation takes place when one person invites, requests, commands, hires, or encourages⁶ another to commit a particular offense. For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the target offense.⁷ The solicitation is complete the instant the actor communicates the solicitation to the other person.⁸ Thus, a solicitation occurs if D asks X to commit a crime but X refuses, or even if X agrees but does not intend to commit the crime (e.g., if X is an undercover police officer feigning intent).

In the absence of clarifying statutory language, courts have struggled to determine how to deal with uncommunicated solicitations. For example, in State v. Cotton,⁹ C, a jail inmate, wrote letters to X, his wife, in which he solicited criminal activities on her part. Although C attempted to mail or forward the letters to X, there was no evidence that they actually reached her. The court held that, on this evidence, C could not be convicted of solicitation,¹⁰ although it suggested that a charge of attempted solicitation might have been allowed.¹¹

[B] Relationship of the Solicitor to the Solicited Party

[1] In General

A typical solicitation occurs when D importunes X to perpetrate the substantive offense. In common law terms,¹² D intends for X to be the "principal in the first degree"—the perpetrator—of the solicited crime; D wishes to be the "principal in the second degree" or "accessory before the fact." Put less technically, "the essence of criminal solicitation is an attempt [by the solicitor] to induce another to commit a criminal offense";¹³ the solicitor intends to be in the background—to "hide behind his hireling(s)"¹⁴—as an accomplice in the commission of the crime. Although there is relatively little case law on point, it also appears that a "solicitation of a...