§ 28.02 COMPARISON OF SOLICITATION TO OTHER INCHOATE OFFENSES

• Jurisdiction: United States

§ 28.02. Comparison of Solicitation to Other Inchoate Offenses

[A] Conspiracy

A conspiracy is an agreement between two or more persons to commit an unlawful act or series of unlawful acts.²⁸ As noted in the preceding subsection, a solicitation conceptually is an attempted conspiracy. However, it is possible to have a conspiracy without a prior common law solicitation. For example, suppose that A, intending to kill V requests B's assistance in the crime. If B agrees to help, they have formed a conspiracy; however, as A did not request B to perpetrate the offense, no common law solicitation has occurred.²⁹

Or, suppose that C informs D that he (C) intends to kill V D tells C that, he, too, wishes V dead, so he offers to join C in the crime. As a consequence of their common goal, they form a pact to kill V. The latter agreement would constitute a conspiracy, although C never solicited the offense.³⁰

[B] Criminal Attempt³¹

An issue that has perplexed courts is whether or when a solicitation can constitute an attempt to commit the crime solicited. That is, if D solicits X to rob V, under what circumstances, if any, may D be convicted of attempted robbery, rather than of solicitation? The matter is of considerable significance in jurisdictions in which a criminal attempt is punished more severely than a solicitation.

Courts have taken various approaches to this issue.³² First, a substantial majority of courts state that the act of solicitation cannot, by itself, constitute an attempt to commit the offense solicited.³³ A minority of courts, however, provide that a solicitation can constitute an attempt, subject to ordinary attempt doctrines.³⁴ On this basis, a solicitation that is proximate to the target offense may constitute an attempt to commit it. For example, if D solicits unarmed X to murder V when V returns to town in a week, D's conduct would not constitute an attempt because the crime is too remote. On the other hand, if D solicits X, who is armed and in V's presence, to commit the offense immediately, D's solicitation—even if X refuses to commit the crime — could constitute an attempt.³⁵

Second, some courts hold that solicitation coupled with a "slight act" in furtherance of it by the solicitor is an attempt.³⁶ For example, in jurisdictions that follow this rule, if D solicits X to sell him an illegal drug, and then displays or proffers the money, the solicitation has matured into an attempt.³⁷ Likewise, if D pays X money to murder V, or furnishes X ...