Criminal Solicitation: I Didn’t Commit the Crime, So Why Do I Have to Do the Time?

After all of the 20/20, Dateline and 48 Hour Mystery episodes that have aired overtime about a husband, a wife or a mistress hiring someone to hire someone else to kill or harm their significant other one would think that everyone knows by now that no matter how far you have tried to remove yourself from the crime…if it goes down, so will you.

Under Georgia law, soliciting another person(s) to commit a crime on your behalf is known as criminal solicitation. And, while you may have not been the one to “pull the trigger,” “thrust the knife” or “pour the poison” you are the one who put the crime in motion and—if proven guilty—will face the same penalties as the person who physically committed the crime. Further, even if the person does not commit the crime you requested of them, you can still be charged and convicted of the crime of solicitation.

What Does the Law Say About Criminal Solicitation?

Under O.C.G.A. 16-4-7, a person commits the offense of criminal solicitation when, with the intent that another person engage in conduct constituting a felony, he:

• Solicits;
• Requests:
• Commands;
• Importunes;
• Or otherwise attempts to cause the other person to engage in such conduct.

What Is the Punishment for the Offense of Criminal Solicitation?

A person convicted of the offense of criminal solicitation to commit a felony shall be punished by imprisonment for not less than one nor more than three years. A person convicted of the offense of criminal solicitation to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one nor more than five years. O.C.G.A. 16-4-7.

Georgia Case Law on Criminal Solicitation

In O’Kelly v. State, 196 Ga. App 860 (1990), the defendant’s conviction of five counts of criminal solicitation was upheld. The defendant, O’Kelly, was charged with soliciting a police officer to murder his ex-girlfriend by throwing acid in her face, procuring a hit man to murder her and pouring sugar in the gas tank of the daughter of the defendant’s ex-girlfriend in an attempt to kidnap her. O’Kelly first offered his neighbor $40 and purchased two two-pound bags of sugar to do commit the crime. He then offered the neighbor $1,000 to bring the daughter to him. The neighbor refused. O’Kelly then requested another friend to ask her fiancé to kill his ex-girlfriend for $1,000. When the fiancé refused, O’Kelly asked the same friend to “get someone else to do it.” The friend contacted the police, in which, it was arranged for an officer to impersonate a hit man. The meeting between the officer and O’Kelly was arranged and tape recorded. Staged photographs were presented to O’Kelly of his ex-girlfriend appearing to be shot in the head. After giving the officer ten $100 bills, O’Kelly was arrested. He argued that because none of the people solicited in this case intended to carry through with the criminal acts that he was entitled to a directed verdict. The Court held that O’Kelly did express a desire to see his ex-girlfriend and her daughter killed and thus such expressions were sufficient evidence to prove criminal solicitation.

What Are Some Defenses to Criminal Solicitation?

First, and unfortunately for the solicitor, it is not a defense to criminal solicitation to argue that the person who was solicited to commit the crime did not actually commit the crime. As mentioned, under Georgia law, the crime of solicitation is complete once a person has hired, requested or commanded someone else to commit a criminal act on that person’s behalf.

However, depending on the facts of the case, there may be some defenses available such as a lack of or revocation of criminal intent. The magic word in the Georgia statute is intent. In a criminal solicitation case, the solicitor must have had the intent to persuade another to commit the crime. If there is no intent then there is no crime. The crime of solicitation is a prime example of a crime, in which, words matter. For instance, if Sue told her best friend Sally how she wished Chic-fil-a would burn down because of a horrible drive-thru experience she had there (which we all know in reality would be unbelievable because the customer service at Chic-fil-a is superb) and Sally burned down the Chic-fil-a later that night, Sally cannot argue that Sue solicited her to commit arson. Clearly, Sue was just ranting and had no intent for Sally to actually burn down the Chic-fil-a. Sue’s words would not be sufficient to satisfy the crime of solicitation.

Another possible defense is to argue that the solicitor may have initially formed the requisite criminal intent but abandoned it before the crime was committed. However, to employ such a defense, the defendant would have to prove that he or she notified the person solicited and also warned law enforcement in a timely manner or made a substantial effort to stop the crime from happening. Other defenses include: lack of evidence, mistaken identity or actual innocence.

Contact Bixon Law

Being charged with criminal solicitation is a serious offense. You can find yourself sentenced to a significant amount of time behind bars even if you did not physically commit the crime at issue. If you or a loved one has been charged with criminal solicitation, please call us at 404-551-5684 for a free consultation today. We are here to help!