Solicitation

Solicitation, or incitement, is the act of trying to persuade another person to commit a crime that the solicitor desires and intends to have committed. Occasionally this type of criminal activity is defined in terms of a specific substantive offense, making it criminal, for example, to offer a bribe, to suborn perjury, to incite a riot, or to advocate overthrow of the government. Such activity is also dealt with in a general fashion, however, simply by punishing one who invokes another to commit a crime.

Variously known as advising, commanding, counseling, encouraging, enticing, entreating, hiring, importuning, inciting, instigating, procuring, requesting, stimulating, and urging, or referred to by other terms descriptive of attempting to persuade another (the solicitant) to commit a crime, solicitation traditionally exists only when the crime solicited (the object crime) has not been completed, criminally attempted, or agreed to. If the solicitant agrees to commit the crime, both he and the solicitor are liable for conspiracy; if the solicitant attempts to commit the crime, both are liable for attempt; if the solicitant actually completes the crime, the solicitor is liable, under principles of accomplice liability, for being either an accessory before the fact or a principal in the crime that he solicited. Although under the common law the solicitor could be liable for the crime of solicitation only when the solicitant rejected the request, under some statutory schemes (like in Alabama and Illinois), the solicitor may be found guilty whether or not the solicited crime was ever actually committed.

The rationale for the crime is that deliberate inducement of another to commit a crime posits a danger calling for preventive intervention and manifests sufficient danger in the solicitor to warrant criminal liability. The case against criminalizing such activity is that the uncertainty that the object crime will ever be endeavored or committed—in part because the solicitor has shown an unwillingness to commit that crime himself, placing an independent actor between him and the potential crime—signifies that the unsuccessful solicitation is too far removed from any actual harm to present a genuine social danger and, therefore, to warrant criminal sanction. Its emphasis, like that of other inchoate—or relational or anticipatory—crimes, comes too close to punishing evil thoughts or intentions alone.

These competing arguments have produced considerable tension in the United States and other countries, including England, France, Italy, and Germany, as well as a diversity of substantive and procedural principles that are designed both to promote effective law enforcement and to minimize the dangers of abuse and overextension.