Model Penal Code Approach

Model Penal Code Approach

The common-law offense has two parts: an act of urging another person to commit a crime, and the specific intent that the person actually commit it. Model Penal Code § 5.02 restates the offense in one section that keeps both parts and puts them in the Code's own vocabulary.¹ The conduct element is that the actor commands, encourages, or requests another person to engage in specific conduct that would constitute the crime, and the mental element is the purpose of promoting or facilitating the crime's commission.² The three verbs run from an outright order to a plain request, with encouragement between them, so they cover the same ground as the longer common-law list of inciting, counselling, advising, inducing, urging, and commanding. The Code's purpose corresponds to what the common law called specific intent: the solicitor must have it as an object that the crime be committed, so a mere belief that someone might commit it does not suffice.

The feature the Code adds most visibly is its treatment of a request that never arrives. A letter that is intercepted, or a message passed through an intermediary who never delivers it, raises a question the common-law elements do not answer on their face. Section 5.02 answers it expressly: it is immaterial that the actor fails to communicate with the person solicited, so long as the actor's conduct was designed to effect that communication.³ The reasoning follows the same logic as completion at the request. Once the solicitor has sent the message on its way, everything within the solicitor's control has been done, and whether the message arrives depends on interception, a lost letter, or a go-between's failure. If liability turned on arrival, the same purpose and the same conduct would be criminal or not according to what happened in the mail room. The qualifying phrase, conduct designed to effect the communication, keeps liability tied to something the solicitor actually did to reach the other person.

The two subsections below take these changes in turn. The first sets the Code's definition beside the common-law act and intent so that the reader can see what is restated and what is new, and the second develops the rule on uncommunicated solicitations. Other parts of § 5.02, including its renunciation defense, are taken up later where withdrawal is covered.⁴

The Model Penal Code Definition

Section 5.02(1) packs the offense into one sentence with three working parts: what the actor does, what the actor wants, and what the actor asks the other person to do.⁵ The actor must command, encourage, or request another person. The actor must do so with the purpose of promoting or facilitating the commission of a crime. And the conduct requested must be specific conduct that would constitute the crime, an attempt to commit it, or the solicited person's complicity in it.⁶ The first two parts restate what the common law already demanded. Commanding, encouraging, and requesting compress the longer common-law list of verbs, and purpose asks the question that specific intent asks, which is whether the actor wanted the crime done. In the ordinary case, where A asks B to kill C, the actor intends that the person asked carry out the crime directly.⁷ The third part is where the Code's drafting does its own work, and the rest of this section concentrates there.

The phrase specific conduct fixes the object of the request. A person who voices contempt for a victim, or wishes aloud that a crime would happen, has not asked anyone to do anything, and liability attaches only when the actor asks someone for something identifiable that would amount to a crime. The common law pointed the same way by requiring that the solicitor intend that the audience engage in a particular kind of criminal conduct, but the Code builds the limit into the definition itself.⁸ The reason is practical. The offense punishes conduct before any harm occurs, so the definition has to separate a genuine attempt to enlist someone from talk that only reveals bad feeling. Without that separation, a bitter remark overheard by a listener would become a crime, and a jury would have to guess from tone what the speaker wanted done. Tying liability to a defined criminal objective also gives the purpose element something to attach to, because purpose to promote a crime is a meaningful question only when the request points at one.

The second half of that illustration shows why the definition lists three kinds of conduct the actor may ask for. The first is conduct that would itself constitute the target crime, as when the actor asks someone to commit the killing or the burglary. The second is conduct that would constitute an attempt, so a request that the other person take steps toward the crime falls within the offense even when the actor asks only for the effort and not for success. The third is conduct that would establish the other person's complicity, which captures a request that someone join a scheme as a lookout, a driver, or a supplier of tools. It also captures a request that the person asked solicit a third party, join a conspiracy, or aid and abet the crime.⁹ A court applying the common law could reach the same result by inference, because it would seem enough that the solicitor sought the other's involvement in any way that would make the other complicit, but the Code settles the question in its text.¹⁰

Reaching attempt and complicity follows from the reason the offense exists. The drafters of the Code reasoned that a purposeful solicitor shows a disposition toward crime and creates a danger of cooperation among criminals, and that the fortuity of whether the person asked agrees should not decide the solicitor's liability.¹¹ A person who recruits a lookout has made the same effort to draw another into the crime as one who recruits the person to carry it out. A definition confined to requests for the completed crime would leave the recruiter outside the offense only because the role requested was a supporting one.

Two further departures from the common-law pattern complete the picture. The common law punished requests to commit felonies and serious misdemeanors, and some jurisdictions still confine the offense to selected crimes such as riot or bribery.¹² The Code's definition speaks of solicitation to commit a crime and sets no felony or misdemeanor threshold.¹³ The Code also grades the offense differently, and the point needs only a mention here. Because the drafters regarded the purposeful solicitor as just as dangerous as the person who completes the crime, the Code punishes the solicitor with equal severity, except when the crime solicited is extremely serious, such as murder.¹⁴

Step two does the screening work, and it is where most errors occur. Students tend to treat a wish that a crime be committed as a request for specific conduct, and an angry or approving remark about a crime does not satisfy the definition until the actor asks someone to do something. Step three then widens the net in the opposite direction, since a request that falls short of asking for the whole crime still counts when it asks for an attempt or for complicity.

Uncommunicated Solicitations

Section 5.02(1) defines solicitation as a command, encouragement, or request directed to another person, and that wording raises a practical question: what happens when the request never arrives? Subsection (2) answers it. It is immaterial that the actor fails to communicate with the person solicited, provided the actor's conduct was designed to effect that communication.¹⁶ Standard legal usage reads the provision the same way: a defendant is guilty of solicitation even though the urging was never communicated, so long as it was designed to be.¹⁷ The rule thus replaces receipt, which the solicitor cannot control, with the solicitor's own effort to reach the other person, which the solicitor can.

The common law had no equally clear answer. Its core idea is that the offense consists of asking another person to commit a crime, and a letter that is intercepted, or a message that an intermediary never passes along, leaves nobody who has actually been asked.¹⁸ Authority nonetheless holds that the act is criminal on those facts, although the proper charge may be an attempt to solicit and not solicitation itself.¹⁹ The reason liability attaches at all is that the solicitor has shown the same dangerousness whether or not the message arrives, and should not escape because of a fortuitous event beyond the solicitor's control.²⁰ The Model Penal Code adopts that reasoning and removes the uncertainty about the label, since an uncommunicated request that meets the statutory condition is solicitation under § 5.02 itself.

The reason for the Code's choice becomes clearer when one asks who controls whether a message arrives. The postal system, a go-between, or the police may decide that question, and none of them is the defendant. If arrival were required, a solicitor's liability would shrink as law enforcement became more effective: the better the police were at intercepting the letter, the weaker the case against the person who wrote it. That result would reward luck rather than culpability, because the solicitor's purpose and the solicitor's act are identical in the letter that arrives and the letter that does not. Section 5.02(2) moves the inquiry to the only variable the solicitor owns, which is whether the solicitor's own conduct set the communication in motion.

That is also why the qualifying phrase, conduct designed to effect such communication, carries the weight of the provision. The subsection excuses a failure of delivery, and it does not excuse a failure to act. The solicitor must still have done something aimed at reaching the other person, such as mailing a letter, handing a note to a courier, or passing a message to an intermediary. Every other element of the definition stays in place as well: the actor must still have the purpose of promoting or facilitating the crime, and the request must still call for specific conduct that would constitute the crime, an attempt, or complicity.²¹ Subsection (2) relaxes only the requirement that the message reach its audience.

The two versions differ in a single respect, which is whether the actor set the communication in motion. In the intercepted-letter version the interception came after A had done everything within A's power to deliver the request, so the failure is the kind of fortuity the rule exists to disregard. In the drawer version nothing was ever sent, and the case rests on a private intention that no one was ever asked to act on. The same reasoning covers a go-between: a solicitor who entrusts a message to an intermediary who fails to deliver it stands where the sender of the intercepted letter stands.²² Closer cases, such as a letter written and addressed but never posted, depend on whether the conduct was designed to effect communication, a question about what the actor was doing and not about whether anyone received the message.

The usual error is treating receipt by the person solicited as an element, and a student who does so will wrongly acquit the sender of an intercepted letter. On a fact pattern involving a seized letter, a lost message, or an intermediary who never delivered, the sequence of questions is short: whether the actor had the required purpose, whether the request called for specific criminal conduct, and whether the actor's own conduct was aimed at reaching the other person. If all three answers are yes, the missing delivery does not matter under the Code.