Solicitation

Both sides of the controversy on solicitation are meritorious, from certain perspectives. Those who instigate criminal activity do represent a threat to law and order and should be held accountable. Law enforcement authorities should be able to stop crime before actual harm, often very serious, occurs. But solicitation, which in essence is an attempt to conspire, has the potential of imposing liability too far back in time, before the object crime is ever even attempted. It can thus be subject to great abuse, with the police incorrectly construing equivocal behavior as part of an endeavor to commit a crime.

If solicitation is to be proscribed, one alternative that can minimize the risk of abuse is to draft statutes precisely, with appropriate regard for the scope and grading of each crime and its punishment and with such precautionary safeguards as a corroboration or overt-act requirement. Attention should also be given to the free-speech implications of solicitation, for legitimate agitation of an extreme nature can easily be misinterpreted as solicitation to commit crime, resulting in either direct or indirect suppression of speech.

Another possible approach to solicitation is to view it not as a distinct crime but rather as a step in the direction of crime, on the continuum of preparatory acts that also includes facilitation, conspiracy, and attempt. Indeed, a major debate in the criminal law is whether to treat all inchoate criminal activity as forms of criminal attempt. To do this intelligently would require a reconsideration of basic principles of the law of attempt—particularly the traditional distinction between acts of preparation and acts of perpetration—as well as of schemes of punishment.

Whatever approach is ultimately adopted, above all it must be recognized that the criminalization of solicitation is an experiment, both in dealing with human behavior and in drawing lines between innocent and culpable conduct at the borders of criminality; it is a balancing of acts and intentions, of predicting and preventing harmful conduct.