Solicitation

Background. While the common law has retained much importance, statutory proscriptions against solicitation have increased. For example, by 1961 only nine states had cataloged solicitation as a general substantive crime; by the end of the century the number had risen to more than thirty. This dramatic increase indicates that society, through its legislative voice, has recognized solicitation as a sufficiently significant public harm to require penal sanction, for, where the common law of crimes has been abolished by statute, without appropriate legislation solicitation even to commit a felony might not constitute a crime.

State statutes employ various criteria to define the crime of solicitation indicating fundamental differences in criminal justice policy and practice. Most commonly addressed in the statutes are the following five factors: types of crimes indictable as criminal solicitations, elements of the crime, existence of a corroboration requirement as a limitation on the crime, degree of punishment, and available defenses.

Types of crimes indictable. Unlike the common law, which generally (and vaguely) described the object crimes covered by solicitation as those that breached the public peace, state statutes refer to their own systems of criminal classification—misdemeanors and felonies. In this way, the legislatures are able to control the nature and scope of crime, thereby restricting judicial interpretation and discretion. Many states impose penalties for soliciting the commission of any crime; others apply it only to felonies. The California statute, for example, specifically enumerates the particular object felonies that are subject to solicitation charges, such as murder, felonious assault, kidnapping, and arson. Other states, like Kansas, Louisiana, Colorado, and Michigan, criminalize the solicitation of felonies generally, but not misdemeanors.

Elements of the crime. Since solicitation, like the other inchoate crimes of attempt and conspiracy, is a specific-intent crime, every state solicitation statute requires that the solicitor's menial state be either an intent to cause the solicitant to commit or attempt to commit the object crime, or be sufficient to establish the solicitant's complicity in its commission or attempted commission. Some states have broadened the sting of solicitation by holding the solicitor liable even when the commission of the object crime is contingent on double inchoateness. For example, if A solicits B to solicit C to commit a crime, A could be convicted of solicitation.

Several states expressly include in solicitation the attempt to solicit. Thus, if A writes a letter soliciting B to kill C but is prevented from mailing the letter, A can still be held liable for solicitation; the theory is that he should not escape punishment because of a fortuitous event beyond his control.

An interesting and important feature in many states' definitions of the actus reus of solicitation is the focus on promoting or facilitating the commission or attempted commission of a crime. Such an element incorporates the otherwise separate crime of facilitation—which penalizes the giving of assistance in cases in which the object crime is not committed—into the solicitation statute, in effect extending greater criminal punishment to persons who are even more remotely involved in criminal activity. This vexatious question of line drawing is, of course, common to the many facets of inchoate crime.

Corroboration requirement. Because of this perplexing issue, some states deal with the potential injustice resulting from charges of solicitation by imposing a requirement of corroboration. This limitation essentially mandates that the state substantiate its charge by introducing extrinsic evidence to support the solicitor's intent to promote criminal activity. Several states, like California, Maine, and Colorado, require either the corroboration of two witnesses, or one witness plus corroborating circumstances. Iowa provides that the corroboration must be demonstrated by clear and convincing evidence, rather than by some lesser standard. North Dakota requires that the solicitant commit, in response to the solicitation, an overt act in furtherance of the object crime. Such a condition goes beyond he traditional definition of solicitation, making its elements more closely resemble those of attempt and conspiracy.

Degree of punishment. The severity of punishment for the commission of an offense is a strong indication of the legislature's perception of the crime. Naturally, the more serious the crime is considered to be, the harsher the penalty ought to be. Thus, one might expect that the penalty for solicitation would be less than that for attempt, and certainly less than that for the object crime. Most states conform to this expectation, by providing sanctions that either are less severe than those for attempt or are described as being one grade less than the range of sanctions for the object crime.

Yet several states prescribe the same punishment for solicitation as for attempt, and some have enacted sanctions that are identical to those for the completed crime, making exception only for very serious offenses. The justification for this approach is that the solicitation, as an expression of the solicitor's intent, is sufficiently injurious to the public that it merits punishment without regard to its consequences.

Defenses. The most common statutory defense, offered for instance by Alabama, Colorado, Delaware, Florida, Kansas, Kentucky, and Michigan, is that of renunciation, or abandonment. It is an affirmative defense that is available only if the solicitor voluntarily prevents the commission of the object crime. His voluntariness is measured not by fear that his chances of apprehension have increased but rather by his sense of repentance or change of heart.

Another defense that is sometimes codified provides, as does the common law, that under substantive or accessorial principles, the solicitor could not be held liable for the substantive offense. The rationale for this defense is that, since the legislature chose not to impose punishment for the completed crime (as with a minor who has intercourse with an adult), to sanction a solicitation to commit that crime would be inconsistent and would frustrate the objectives of the substantive criminal law. Other jurisdictions, however, disagree, and explicitly reject such a defense.

Finally, the solicitant's criminal irresponsibility or other legal incapacity or exemption typically is no defense to the solicitor.