1. The Four Key Legal Distinctions Every Attempted Solicitation Defendant Must Know
Attempted solicitation law turns on four distinctions. The table below maps each to the governing law, the legal consequence, and the defense implication.
| Legal Issue | Governing Law | Key Question | Defense Implication |
|---|---|---|---|
| Elements of Solicitation | MPC Section 5.02; state criminal codes | Did the defendant request a crime with specific intent? | No agreement or completed crime is required; intent is the critical element |
| Failed Communication | MPC Section 5.02(2); state attempt statutes | Is the defendant liable if the message never reached the target? | Attempted solicitation may still be charged; defense turns on specific intent |
| Solicitation vs. Attempt | MPC Sections 5.01 and 5.02; state codes | Did defendant seek another's help or take a personal step toward the crime? | Distinct charges; conduct can support both in some jurisdictions |
| Renunciation Defense | MPC Section 5.02(3); state affirmative defense statutes | Did the defendant voluntarily and completely abandon the criminal purpose? | Affirmative defense if defendant prevented the crime; not recognized in all states |
Criminal defense and federal criminal defense counsel can evaluate the specific elements of the attempted solicitation charge, assess whether the prosecution can establish specific intent beyond a reasonable doubt, and advise on the most effective criminal defense strategy.
2. Elements of Solicitation and the Failed Communication Defense
Solicitation is complete the moment the defendant makes the request with required intent, so the prosecution does not need to prove the communication was received. When the message never reached the target, the defendant faces an attempted solicitation charge, and the defense turns on whether specific intent can be negated.
What Elements Must the Prosecution Prove to Convict Someone of Criminal Solicitation?
To convict a defendant of criminal solicitation under MPC Section 5.02, the prosecution must prove the defendant, with specific intent that a particular crime be committed, commanded, encouraged, or requested another person to engage in conduct constituting that crime. The actus reus is the communication itself, and the offense is complete the moment the request is made regardless of whether the target agrees, which means neither the target's response nor the commission of the underlying offense is an element the prosecution must establish.
Criminal defense consultation and criminal complaint defense counsel can advise on the elements the prosecution must prove, assess whether the government's evidence establishes specific intent beyond a reasonable doubt, and develop the element-by-element defense strategy.
3. Can a Defendant Be Convicted of Attempted Solicitation When the Communication Never Reached Its Target?
Under MPC Section 5.02(2) and most state statutes, a defendant may be charged with attempted solicitation when the communication fails to reach its target, because the defendant may be guilty of solicitation even if it was not completed due to circumstances unknown to the defendant. Courts have upheld convictions where the defendant sent messages to intercepted accounts, spoke to undercover officers, or sent letters confiscated before delivery, reasoning the defendant completed every act necessary from the defendant's own perspective.
Criminal evidence and criminal defense counsel can advise on the failed communication doctrine, assess whether the evidence supports an attempted solicitation charge when the communication did not reach its target, and develop the defense strategy for challenging the charge.
Solicitation Vs. Criminal Attempt and Federal Solicitation Charges
Solicitation and criminal attempt address different stages of criminal preparation, and the same conduct can produce both charges in some jurisdictions. Federal solicitation statutes carry distinct elements and heavier penalties that require a separate defense strategy.
What Is the Legal Difference between Criminal Solicitation and Criminal Attempt?
Criminal solicitation focuses on the defendant's effort to enlist another person to commit the crime, while criminal attempt focuses on the defendant's own substantial step toward personally committing it. A defendant who asks another to commit a robbery commits solicitation but not attempt, a defendant who personally takes a substantial step commits attempt, and a single course of conduct can produce both charges in jurisdictions that permit simultaneous charging.
Criminal appeals and white collar crime counsel can advise on the distinctions between solicitation and criminal attempt, assess whether the conduct satisfies one, both, or neither offense under applicable state law, and develop the defense strategy for challenging the sufficiency of the charges.
What Federal Statutes Criminalize Solicitation and How Do They Differ from State Law?
The principal federal solicitation statute is 18 U.S.C. Section 373, which prohibits soliciting another to commit a violent felony when the defendant acts with intent that the crime be committed and offers something of value, carrying a maximum of one-half the term for the underlying offense or ten years if the underlying carries life. Federal courts also charge solicitation under 18 U.S.C. Section 875 for interstate communications threatening injury and 21 U.S.C. Section 843(b) for using a communication facility to facilitate a drug felony.
Bribery defense lawyer and extortion attorney counsel can advise on the federal solicitation statutes applicable to the charged conduct, assess whether the government can establish the elements including intent and inducement, and develop the federal criminal defense strategy.
4. Specific Intent, Renunciation, and Affirmative Defense Strategies
Specific intent most frequently determines the outcome of an attempted solicitation prosecution. The renunciation defense can defeat the charge even when specific intent is established, but only where the defendant completely and voluntarily abandoned the criminal purpose.
How Does the Renunciation Defense Work in a Criminal Solicitation Case?
The renunciation defense under MPC Section 5.02(3) is an affirmative defense to criminal solicitation when the defendant, after soliciting another to commit a crime, persuaded that person not to do so or otherwise prevented the crime under circumstances manifesting complete and voluntary renunciation of the criminal purpose. The defense requires both a genuine change of heart and an affirmative act that actually prevented the crime, and it is not recognized in all states.
Criminal threats defense and attempted murder counsel can advise on the availability of the renunciation defense, assess whether the defendant's conduct satisfies the complete and voluntary renunciation standard, and develop the affirmative defense strategy for raising renunciation at trial.
What Does Specific Intent Mean in an Attempted Solicitation Charge and How Can It Be Challenged?
Specific intent means the defendant must have consciously desired that the solicited crime actually be committed, and proving the defendant made a request is not enough if that request was ambiguous, made in jest, or made without genuine desire for the crime to occur. The defense can challenge this element by showing the communication was hyperbole, that the defendant was entrapped by government agents, that the defendant lacked the required mental state due to intoxication or mental illness, or that the communication was too conditional to establish requisite intent as a matter of law.
Criminal offense and criminal negligence counsel can advise on the specific intent standard applicable to the charge, assess whether the evidence establishes or negates the defendant's conscious desire that the solicited crime be committed, and develop the specific intent challenge and entrapment defense strategy.
26 Mar, 2026
