Solicitation

No discussion of solicitation could be complete without examining the relevant provisions of the American Law Institute's Model Penal Code, after which many state statutes have been and are likely to be patterned, at least in part.

On the threshold question of whether there should exist a separate substantive crime of solicitation, the drafters of the Code concluded emphatically in favor of criminalization: "Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability" (§ 5.02).

The Code would impose liability for the solicitation of any crime, if the solicitor specifically intends that the object crime be attempted or completed. A conviction for solicitation also would attach to the solicitor if the conduct of the solicitant would establish his guilt under a theory of complicity (§ 5.02(1)). Exemplifying the strict view of the Code toward solicitation is the additional provision that treats attempt to solicit as a criminal offense (§ 5.02(2)). This section makes the actual communication immaterial to prosecution as long as there was an intent to effect such communication, for the actor has demonstrated his need for corrective sanction.

The mental state for solicitation is defined in terms of acting "with the purpose of promoting or facilitating" the commission of a crime (§ 5.02(1)). Moreover, the Code does not require corroboration of the solicitor's intent.

Taken together, these provisions suggest quite clearly that the American Law Institute designed a solicitation statute that would be both immediately applicable to many situations and far-reaching in its impact. This conclusion is confirmed by the defenses that are expressly recognized in the Code—renunciation and the immunity of the solicitor to prosecution for the object crime (§§ 5.02(3), 5.04(2))–as well as by those that are omitted. The mental state of the solicitant is immaterial if the solicitor believed that the solicitant could perform the solicited act (§ 5.04(1)). Coinciding with its position that impossibility is no defense to the crime of attempt, the Code would probably also reject such a defense to a charge of solicitation, although there is no specific provision on this point. The solicitor's culpability would be measured by the circumstances as he believes them to be.

The offense grade and degree of punishment for solicitation, attempt, and conspiracy alike under the Code correspond to the most serious offense solicited, attempted, or conspired. Departure from this classification occurs only when the offense is a capital crime or a first-degree felony, in which instances the inchoate offense is one of the second degree (§ 5.05 (1)). The drafters sought to temper the harshness of this grading section by incorporating a mitigation provision, pursuant to which if the court finds that the inchoate crime charged "is so inherently unlikely to result . . . in the commission of a crime," the judge is permitted to reduce the grade of the crime or, in extreme cases, to dismiss the indictment (§ 5.05(2)). Despite this allowance for a modicum of judicial discretion, the overall impact of the Model Penal Code's solicitation provisions is severe.