Solicitation

“Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime.” State v. Mann, 345 S.E.2d 365 (N.C. 1986). This is an inchoate crime.

State v. Cotton

790 P.2d 1050 (N.M. 1990).

Convicted of soliciting “Bribery or Intimidation of a Witness” and soliciting “Custodial Interference”

Question

Did the defendant solicit these crimes?

Rule

Solicitation is when a person wishes another person to engage in a felony and “solicits, commands, requests, induces, employs or otherwise attempts” that person to engage in that activity.

Holding

Not guilty of solicitation.

Facts

The defendant was in jail for inappropriate actions he had engaged in with his step-daughter. He was awaiting trial and wished that the step-daughter would not testify at his trial. So, he wrote two letters to his wife requesting that she devise some means for the step-daughter to not be present at the trial. Neither letter was ever delivered.

Analysis

The defendant argued that because the communication has never been delivered, he cannot be guilty of solicitation because the solicitation never occurred. The court agrees with this argument and furthers it by saying that had this been an MPC jurisdiction, he would have been guilty for communication that was never received. However, the legislature failed to adopt that portion of the MPC and therefore, the statute requires an express communication. Because that is lacking here, he cannot be guilty.

Additional Notes

MPC 5.02(1) Definition of Solicitation

1. Have the pruprose (conscious object) of committing a crime
2. Command, encourage, or request another person to engage in the conduct
3. Conduct asked for must be ether
   1. The crime
   2. Attempt to commit the crime
   3. Makes them an accomplice to the crime.

Under MPC 5.02(2) as long as the defendant had the intent and had made an act towards expressing that communication, he can be guilty.

Case Notes

Here, the legislature failed to adopt MPC 5.02(2). Therefore, his communication is not a crime because he failed to deliver the letters. Instead, this is “attempted solicitation”.

Why would we want to punish for solicitation?

• Retributive theory – The defendant would be morally blameworthy because he is the person who creates the idea, manages the idea, and works to enact it.
• Utilitarian theory – Defendants here need to be rehabilitated from their current state. You could also deter that a person does not actually communicate.

When is a solicitation an attempt? Three theories

1. Solicitation alone could be considered a substantial step and therefore is an attempt.
2. Solicitation alone cannot be an attempt but can when it is combined with other overt acts as long as those acts are beyond mere preparation
3. Solicitation is never an attempt.

Follow note 6 on page 821 if I need to review.

How does solicitation relate to other crimes?

Solicitation (Attempted Conspiracy) >> Conspiracy >> Attempt >> Substantive crime.

Conspiracy and the substantive crime do not merge. This means that a person can be convicted of BOTH conspiracy and the crime.

Disclaimer

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.