9.2 Solicitation & the Merger Doctrine

Solicitation & the Merger Doctrine

VI. Solicitation & The Merger Doctrine

Solicitation is the third recognized inchoate offense. On the FYLSE, solicitation questions frequently overlap with conspiracy and the merger doctrine.

1. Definition and Elements of Solicitation

Solicitation consists of:

• Actus Reus: Inciting, counseling, advising, urging, commanding, or requesting another person to commit a felony or serious misdemeanor; with
• Mens Rea: The specific intent that the person solicited actually commit the underlying substantive crime.

2. Timing and Nature of the Crime

• Instant Completion: Solicitation is complete the exact instant the request or command is communicated to the other person with the requisite specific intent.
• Refusal Is Irrelevant: The crime is fully complete even if the person solicited immediately rejects the proposal, scoffs at the solicitor, or turns the solicitor in to the police.
• No Agreement Required: Unlike conspiracy, solicitation does not require mutual assent or an agreement. It is a unilateral act.

3. The Merger Doctrine in Inchoate Offenses

The doctrine of merger prevents cumulative punishments where an inchoate offense serves merely as a stepping stone to a completed crime:

                               ┌─────────────────────────────┐
                               │    The Merger Continuum     │
                               └──────────────┬──────────────┘
                                              │
         ┌────────────────────────────────────┴────────────────────────────────────┐
         ▼                                                                         ▼
   [SOLICITATION]                                                              [ATTEMPT]
- Merges into CONSPIRACY (if agreed)                                  - Merges into COMPLETED CRIME
- Merges into ATTEMPT (if overt act taken)                            - Cannot be convicted of both
- Merges into COMPLETED CRIME (if executed)                             attempt and target offense
- Solicitation NEVER stands alone upon merger                          - (Conspiracy NEVER merges)

1. Solicitation Merges into Conspiracy: If the solicited party agrees to commit the crime, the solicitation merges into a criminal conspiracy. The defendant cannot be convicted of both solicitation and conspiracy.
2. Solicitation Merges into the Target Crime: If the solicited party actually commits the crime, the solicitor becomes an accomplice (party to the crime), and the solicitation merges into the completed substantive offense.
3. Attempt Merges into the Completed Substantive Offense: An individual cannot be convicted of both an attempt to commit a crime and the completed crime itself. If a burglar successfully enters a home, the attempted burglary merges into the completed burglary.
4. CRITICAL EXAM DISTINCTION — Conspiracy Never Merges: Unlike attempt and solicitation, conspiracy DOES NOT MERGE into the completed target crime. An individual can be convicted of both conspiracy to commit robbery AND completed robbery.

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II. Elements of Solicitation

Solicitation is the least-completed of the inchoate crimes. Nothing need happen beyond the asking.

1. The act of asking. The defendant counsels, requests, commands, encourages, entices, or urges another person to commit a crime. Any form of inducement qualifies, including an offer of payment.
2. Specific intent. The defendant must intend that the person solicited actually commit the offense. A statement made in jest, in rhetorical anger, or as a hypothetical lacks this intent.
3. A crime as the object. At common law solicitation was limited to soliciting a felony or a serious misdemeanor involving a breach of the peace; most modern codes extend it to any crime.

The offense is complete at the moment of communication, and three consequences follow that the examiners test relentlessly:

• Refusal is irrelevant. If the person solicited says no, walks away, or reports the request to the police, the solicitation was still complete the instant it was made.
• An undercover officer works just as well. The solicited party need not be capable of or willing to commit the crime.
• A communication never received — an intercepted letter, an email that bounces — is generally only attempted solicitation, because the inducement never reached its target.

Defenses

At common law, renunciation was no defense: once the words were spoken the crime was done. The Model Penal Code departs from this and allows a defense where the defendant completely and voluntarily renounces the criminal purpose and either persuades the solicited party not to act or otherwise prevents the crime. A renunciation prompted by the appearance of police, or by the discovery that the target is better guarded than expected, is not voluntary.

Note also what solicitation is not: if the solicitor goes further and supplies a weapon, a plan, or a getaway car, and the crime is committed, the solicitor is an accomplice liable for the substantive offense, not merely a solicitor.

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III. Working the Merger Question on the Exam

When a fact pattern presents a defendant who asked, agreed, tried, and succeeded, run the chain in order:

1. Did the defendant ask someone to commit a crime? Solicitation is complete.
2. Did that person agree? A conspiracy formed, and the solicitation merges into it.
3. Did anyone take a substantial step? An attempt exists, and the attempt will merge into the completed crime.
4. Was the crime completed? The attempt and the solicitation are gone. The conspiracy survives.

The single most reliable answer-selection heuristic in this area: an option that convicts a defendant of both conspiracy and the completed offense is very often correct, while an option convicting of both attempt and the completed offense, or both solicitation and the completed offense, is almost always wrong.