Solicitation of a Crime - Legal Elements, Defenses, and Penalties

Inducing someone else to commit a crime that benefits you might seem like a good way to avoid a charge. However, this may be a separate crime called “solicitation.” If you are suspected of soliciting a crime, you should talk to an experienced attorney about your situation. You should not try to explain your version of events to the police or prosecutors. Even if they seem friendly, and even if you are sure that you have done nothing wrong, statements made to law enforcement could undermine a potential defense in unexpected ways.

What Is Solicitation?

Solicitation of a crime generally involves asking or telling someone else to commit a crime.

Elements of Solicitation

To get a conviction for solicitation, a prosecutor generally would need to show that the defendant asked, ordered, encouraged, hired, or otherwise sought to induce another person to commit a crime. The defendant also must have intended for the other person to commit the crime. However, the other person does not need to have committed or attempted the crime.

Elements of Solicitation

To get a conviction for solicitation, a prosecutor generally would need to show that the defendant asked, ordered, encouraged, hired, or otherwise sought to induce another person to commit a crime. The defendant also must have intended for the other person to commit the crime. However, the other person does not need to have committed or attempted the crime.

Some solicitation statutes apply generally. For example, Florida Statutes Section 777.04 applies to any offense prohibited by law, or any attempt to commit such an offense. Other statutes apply to specific types of crimes. California Penal Code Section 653f lists crimes such as murder, rape, robbery, burglary, grand theft, perjury, forgery, kidnapping, and arson. A federal statute at 18 U.S. Code Section 373 prohibits solicitation to commit a crime of violence.

Examples of Solicitation

Phil wants revenge on his wife for leaving him. He tells his employee Peter to set fire to her house. Phil could be charged with solicitation of arson.

Penelope sees a necklace that she cannot afford at a store. She asks her boyfriend Patrick to break into the store after it closes and steal it for her. Penelope could be charged with solicitation of burglary, grand theft, or a similar crime.

Offenses Related to Solicitation

Solicitation is considered an incomplete or “inchoate” crime because the defendant did not personally violate a substantive criminal law. Other crimes that fall within this category include:

• Attempt: the defendant intended to do something illegal and took a certain step in that direction, but they did not complete the criminal act
• Aiding and abetting: the defendant assisted, encouraged, or otherwise facilitated a crime committed by another person
• Conspiracy: the defendant agreed with one or more other people to do something illegal, and at least one of them committed an overt act furthering that criminal objective

The elements of these crimes may overlap. A local attorney can explain the type of charge that may arise from a specific course of conduct. This may affect the potential penalties.

Defenses to Solicitation

Someone charged with solicitation might argue that they were falsely accused. Perhaps the person making the accusation has a reason to get the defendant in trouble. In other cases, the defendant might claim that they did not actually want the other person to commit the crime. If Phil told Peter to burn down his wife’s house while laughing and waving his arms comically, he might have a strong argument that he was joking.

In some states, a defense may involve showing that the other person never received the communication. For example, California courts have found that solicitation requires a completed communication. Perhaps the defendant sent a letter conveying a request or order to commit a crime, but it never reached the intended recipient. This defense may result in a conviction of attempted solicitation, rather than preventing liability entirely.

Under certain solicitation statutes, a defendant may avoid a conviction by establishing a defense known as renunciation or withdrawal. For example, Florida recognizes a defense based on persuading the other person not to commit the offense, or otherwise preventing them from committing the offense, under circumstances showing a complete and voluntary renunciation of the defendant’s criminal purpose.

Penalties for Solicitation

Some jurisdictions, such as Pennsylvania, impose the same penalties for solicitation as for the intended offense. Others impose separate penalties, which often depend on the severity of the intended offense.

Arizona generally provides a two-level reduction of the charge in these cases. (In other words, solicitation is a class 3 felony if the intended offense was a class 1 felony, a class 4 felony if the intended offense was a class 2 felony, and so on.) New York makes solicitation a class A misdemeanor in most situations involving intended felonies, but only a violation in most situations involving other intended crimes. The Texas statute is limited to capital and first-degree felonies. Solicitation of a capital felony is charged as a first-degree felony, while solicitation of a first-degree felony is charged as a second-degree felony.

The federal statute prohibiting soliciting a crime of violence generally carries up to half the maximum term of imprisonment and up to half the maximum fine for the intended offense. However, if the intended offense carries life imprisonment or the death penalty, the defendant will face up to 20 years in prison.

Last reviewed November 2024