The inchoate offense of asking someone to commit a crime is called criminal solicitation. Of the three traditional inchoate offenses in American criminal law, solicitation is the one aimed squarely at the act of recruiting, encouraging, or hiring another person to break the law. The offense is complete the moment the request is made with genuine criminal intent, even if the person asked refuses and the crime never happens.
How Solicitation Differs From Attempt and Conspiracy
The three inchoate offenses often get grouped together, but each targets a different stage of criminal activity.
- Attempt covers your own direct action. You personally take a substantial step toward committing a crime but fail to finish it.
- Conspiracy covers an agreement. Two or more people agree to commit a crime and, in most jurisdictions, at least one takes an overt act in furtherance of the plan.
- Solicitation covers a request. You ask or encourage someone else to commit a crime. No agreement is needed, and no further action is required beyond the request itself.
Put simply, attempt is about what you tried to do yourself, conspiracy is about what you and others agreed to do together, and solicitation is about what you asked someone else to do. Solicitation requires only one actor with criminal intent who communicates that intent to another person. Conspiracy requires at least two people who reach a meeting of the minds.
What Solicitation Actually Looks Like
Solicitation boils down to asking, encouraging, or pressuring another person to commit a specific crime. The request can be spoken, written, or communicated through gestures or electronic messages. What matters is that the communication is clear enough to convey your intent for the other person to carry out the criminal act. Asking a friend to steal a car, hiring someone to commit arson, or texting instructions to sell drugs all qualify.
The federal solicitation statute, 18 U.S.C. § 373, targets anyone who solicits another person to commit a federal crime of violence, and it requires “circumstances strongly corroborative” of the defendant’s intent to see the crime carried out.1Office of the Law Revision Counsel. 18 U.S. Code 373 – Solicitation to Commit a Crime of Violence
What Prosecutors Have to Prove
A solicitation conviction rests on two pillars: criminal intent and the act of communication.
Intent to Have the Crime Committed
The prosecution must show that you genuinely wanted the other person to carry out the crime. Joking about robbing a bank, brainstorming a hypothetical, or idly wishing someone harm is not enough. You must have specifically intended for the criminal act to happen. Under 18 U.S.C. § 373, the federal statute requires not just intent but also “circumstances strongly corroborative of that intent,” meaning external evidence beyond your words must back up the claim that you were serious.1Office of the Law Revision Counsel. 18 U.S. Code 373 – Solicitation to Commit a Crime of Violence
Communication of the Request
The criminal act in solicitation is the communication itself. You have to actually convey the request, command, or encouragement to another person. The Model Penal Code uses broad language here, reaching anyone who “commands, encourages, or requests another person to engage in specific conduct” that would constitute a crime. Most jurisdictions follow a similar approach, treating any clear communication designed to induce criminal activity as sufficient.
There’s a wrinkle on undelivered communications. The Model Penal Code says it does not matter if the communication never reaches the other person, as long as your conduct was designed to deliver it. Not every state agrees. Some jurisdictions require the communication to actually reach the intended recipient, and if it doesn’t, you might face a charge for attempted solicitation rather than the completed offense.
The Response of the Person Asked Doesn’t Matter
This is where solicitation feels counterintuitive. The crime you asked for does not need to happen. The person you solicited does not need to agree, prepare, or take a single step. The offense is complete the moment you make the request with genuine criminal intent. Soliciting an undercover officer still counts, because the focus is on your conduct, not the other person’s willingness or ability to follow through.
The federal statute makes this explicit: it is not a defense that the person you solicited “could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution.”1Office of the Law Revision Counsel. 18 U.S. Code 373 – Solicitation to Commit a Crime of Violence
When Solicitation Becomes Conspiracy
If the person you solicit actually agrees to commit the crime, you’ve likely crossed into conspiracy territory. Solicitation is a one-way communication. Conspiracy requires a mutual agreement. The moment the other person signs on and you both understand the plan, prosecutors can charge conspiracy instead of, or in addition to, solicitation.
This distinction has real consequences at sentencing. Conspiracy, unlike solicitation and attempt, does not merge with the completed offense. You can be convicted of both conspiracy to commit a crime and the crime itself.
Common Defenses
Renunciation
The most recognized defense is renunciation, sometimes called voluntary withdrawal. If you change your mind and actively prevent the crime from being committed, you may have an affirmative defense. The federal statute spells out the requirements: a “voluntary and complete renunciation” of criminal intent, plus actual prevention of the crime you solicited.1Office of the Law Revision Counsel. 18 U.S. Code 373 – Solicitation to Commit a Crime of Violence
The bar is high. Simply deciding to call it off is not enough if the crime proceeds anyway. The renunciation cannot be motivated by cold feet about getting caught, a decision to postpone the crime to a better time, or a plan to target a different victim. It has to be a genuine change of heart. The defendant bears the burden of proving renunciation by a preponderance of the evidence.
Lack of True Intent
Because specific intent is essential, showing that the request was not serious can defeat the charge. If your statement was clearly a joke, sarcasm, or an expression of frustration with no expectation that anyone would act on it, prosecutors may struggle to prove intent. Context matters. Saying “I wish somebody would burn that place down” at a bar after a bad day looks very different from handing someone a map, a can of gasoline, and cash.
Entrapment
When law enforcement originates the criminal idea and pressures someone who was not already inclined to commit it, entrapment may apply. The defense generally requires showing that the idea came from law enforcement and that you were not predisposed to commit the offense. An undercover officer merely providing an opportunity you jumped at is usually not entrapment.
Merger With the Completed Crime
If the solicited crime is actually carried out, solicitation merges into the completed offense. You cannot be convicted of both soliciting a robbery and the robbery itself. The completed crime absorbs the solicitation charge. Merger applies to both solicitation and attempt, but not to conspiracy.
In practice, merger tends to work in the defendant’s favor on paper, though prosecutors generally pursue the completed crime because it carries heavier penalties.
Penalties
Sentencing for solicitation varies widely, but most states tie the punishment to the severity of the crime you asked someone to commit. Soliciting a murder carries far harsher consequences than soliciting petty theft. States differ on grading. Some classify solicitation at the same level as the target crime. Others drop it one degree lower. A few treat solicitation as a misdemeanor regardless of what was solicited.
At the federal level, 18 U.S.C. § 373 caps the penalty at half the maximum imprisonment and half the maximum fine the solicited crime carries. If the solicited crime is punishable by life imprisonment or death, the solicitation penalty caps at 20 years.1Office of the Law Revision Counsel. 18 U.S. Code 373 – Solicitation to Commit a Crime of Violence Penalties can include prison time, fines, and probation, with the specific combination depending on the jurisdiction, the seriousness of the target crime, and the defendant’s criminal history.