Criminal Solicitation: Charges, Penalties, Defenses

Criminal solicitation is the act of one person seeking out another person to engage in some criminal act. Even though solicitation charges have changed and evolved over the years, some of the basic concepts of a solicitation charge, defenses, and punishments are still part of many state solicitation statutes.

Criminal Solicitation Charges

Criminal solicitation does not require the actual completion of a physical act, whereas conspiracy and attempt offenses require the completion of some act to demonstrate a defendant’s intent or agreement. Criminal solicitation occurs when a defendant requests or induces another to engage in conduct that would constitute a felony. It’s one of the few offenses that punishes purely for speech, with no requirement of an overt act.  However, the type of proof does tend to be more restricted.

A conviction for conspiracy cannot be based solely on the uncorroborated testimony of the person solicited. This rule was enacted to prevent someone from being convicted on a pure he said/she said scenario. Many states also limit the application of some solicitation charges to more serious level offenses like higher degree or first degree felonies (like murder). Others have made specific types of criminal solicitation such as the solicitation of prostitution or of minors their own offense. 

Defenses to Criminal Solicitation

Defenses to a criminal solicitation charge will vary by state. Most states will set out what will and will not be allowed to be claimed as a defense. For example, a defendant can be charged with criminal solicitation even if the person who was solicited was never charged with an offense. If a person decided to offer money to a prostitute in exchange for sexual activity, then he could be charged with solicitation of prostitution, even if the prostitute was never charged. 

A defendant can also be charged with criminal solicitation even if the other person was legally incapable of understanding the request. For example, if a defendant asks his fifteen year old son to sell drugs, the defendant can be charged with conspiracy to commit the offense even though the teenager was not legally able to enter into the agreement. Most defense theories or strategies will focus on the core elements of the criminal solicitation statutes. If a defendant can show that no request was ever made, they can overcome a conspiracy charge. Another defensive strategy is to attack the quality of corroboration presented by the state. If the testimony of the solicited person is not sufficiently corroborated, then the conviction cannot be upheld on appeal. Essentially, this means proving that the state's witness is not credible or is misrepresenting facts.

Criminal Solicitation Penalties

Because criminal solicitation is not a completed offense, it is generally punished slightly less than an actual completed offense, usually a degree lower. So if a defendant would face a first degree punishment range for the completed offense of murder, then solicitation of murder would be one degree lower. In cases of murder, if a defendant could have faced the death penalty for a completed offense of murder, then the penalty for solicitation is simply mitigated to exclude the death penalty option—but the defendant could still face up to life in prison for the solicitation of a murder.

The exception to this rule is when a state has enacted a very specific criminal solicitation statute. For example, soliciting prostitution is considered a completed offense in some states. If a state has a specific solicitation statute (like the prohibition on soliciting minors sexually) and a general criminal solicitation statute (for all other offenses), then the punishment range for the more specific solicitation offense will control. Regardless of which punishment range is used, defendants can face many of the same collateral consequences of the completed charge.

If a defendant is convicted of online solicitation, they may still be required to register as a sex offender, regardless of whether or not they had any physical contact with the child. Considering that many of the penalties associated with a solicitation charge are the same as a completed offense, many defendants wonder why they should negotiate for the lesser charge. Many defendants actually benefit by pleading to a lesser charge, even beyond the reduced sentence, because of sentencing guidelines. 

Many states now utilize sentencing guidelines similar to federal sentencing guidelines when assessing punishment. If a defendant is later charged with another felony offense, then they will be punished more harshly if they had violent crime convictions on their records. However, some states do not classify solicitation charges as violent offenses, even when the completed offense would be. Because this advantage is very state specific, a defendant should consult with a criminal attorney in their jurisdiction.