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    § 18-2-301 CRS – “Criminal Solicitation” – Colorado Law

    Under 18-2-301 CRS, Colorado law defines criminal solicitation as commanding, inducing, entreating or attempting to persuade another person to commit a felony crime. A person charged with criminal solicitation faces penalties one class of crime less serious than the crime he or she is accused of soliciting.

    The language of 18-2-301 CRS reads as follows:

    (1) Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if he or she commands, induces, entreats, or otherwise attempts to persuade another person, or offers his or her services or another’s services to a third person, to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent.

    (2) It is a defense to a prosecution under this section that, if the criminal object were achieved, the defendant would be the sole victim of the offense or the offense is so defined that his conduct would be inevitably incident to its commission or he otherwise would not be guilty under the statute defining the offense or under section 18-1-603 dealing with complicity.

    (3) It is no defense to a prosecution under this section that the person solicited could not be guilty of the offense because of lack of responsibility or culpability, or other incapacity.

    (4) It is an affirmative defense to a prosecution under this section that the defendant, after soliciting another person to commit a felony, persuaded him not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the defendant’s criminal intent.

    (5) Criminal solicitation is subject to the penalties provided for criminal attempt in section 18-2-101.

    To help you better understand the law, our Denver Colorado criminal defense lawyers discuss the following:

    Man solicitating a crime in violation of CRS 18-2-301.

    Criminal solicitation is a felony in Colorado.

    1. What is criminal solicitation?

    18-2-301 (1) C.R.S. provides:

    Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if he or she commands, induces, entreats, or otherwise attempts to persuade another person, or offers his or her services or another’s services to a third person, to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent.

    Verbally soliciting a crime is not enough. There must be additional evidence of circumstances that show you had the specific intent to promote or facilitate that crime.1

    • Example: One night Lenny and Mickey are having a beer, when Lenny says to Mickey, “What do you say we kill my wife? That woman needs to die.” Without anything further, Lenny is guilty of nothing more than blowing off steam.
    • But… let’s say that after Lenny’s wife gets killed, the police discover a history of Google queries on Lenny’s computer asking the going rate for a hired killer. The prosecutor also finds several of Lenny’s friends who testify that Lenny was always discussing scenarios for getting rid of his wife. A jury could find these to be circumstances strongly corroborative of Lenny’s intent to kill his wife.

    2. Colorado solicitation penalties

    The punishment for criminal solicitation in Colorado depends on the punishment for the crime solicited. Specifically:

    If the felony solicited is not defined under the Colorado Criminal Code (Title 18 of the C.R.S.) and no penalty is specifically set forth in the statute, soliciting that felony is a class 6 felony.

    Drug felonies are slightly different. Except as otherwise provided by law:

    For a full list of the presumptive range of prison sentences for each class of felonies and drug felonies, as well as possible criminal fines, please see our article on Colorado Felony Sentencing.

    Additionally, note that regardless of the class of felony committed, if Colorado law defines the crime as a crime of violence, you will face an increased sentence (up to twice as long) and prison time will be mandatory.

    To learn more about penalties for Colorado crimes of violence, please see our article on Colorado Violent Crimes Sentencing (18-1.3-406 C.R.S.).

    3. Defending Colorado solicitation charges

    Solicitation is what’s known as a “specific intent” crime. You act with specific intent when your conscious objective is to cause a specific result proscribed by a criminal statute.2 In the case of solicitation, this means your objective is to induce or facilitate the commission of a crime.

    Before we discuss common defenses, it is helpful to discuss things that are NOT a defense to the Colorado crime of solicitation.

    Things that are not a defense to solicitation

    It is NOT a defense to a solicitation charge that:

    The crime you solicited never took place

    It is immaterial to the issue of specific intent whether or not the result you intended actually occurred.3

    The crime of solicitation is complete once the inducement to commit the crime has been made, under circumstances that corroborate that intent — even if the person solicited does nothing at all.4 Solicitation does not require a completed, or even an attempted, crime.

    You did not know the identity or motive of the person you solicited

    It may seem strange, but you don’t have to know who it was you solicited or whether or not they were serious about committing a crime.5 The only thing that counts is your intent.

    • Example: Alec posts on an underground message board that he is looking for someone to commit a hit. After he gets a positive response, he and the unknown respondent begin exchanging incriminating emails. When Alex is charged with criminal solicitation, it is not a defense that he can’t identify the person he solicited.

    The person solicited could not be guilty of the offense

    It is not a defense to solicitation that the person solicited could not be guilty of the offense, for instance, because that person was underage, legally insane, a law enforcement officer or anyone else who couldn’t be found guilty of the crime.6 Again, it is your intent that makes solicitation a crime.

    Note, however, that this is not the same as you, yourself, having a legal incapacity. As discussed below, your own incapacity can be a defense to solicitation.

    Man refusing a criminal solicitation by holding up his hand.

    That the solicited crime never takes place is not a defense to CRS 18-2-301 charges.

    The corroboration occurred later than the solicitation

    Although solicitation requires a verbal act under circumstances strongly corroborative circumstances of the intent to solicit a crime, there is nothing in the law that says the corroborative circumstances have to occur simultaneously with or immediately after the verbal solicitation. The corroborating circumstances may span a long period of time.7

    Defenses to criminal solicitation

    The best Colorado solicitation defense depends on the facts of your case. Common defenses to solicitation, like many other crimes, include:

    • Witnesses were lying or mistaken;
    • You were the victim of mistaken identity; or
    • There was police misconduct (such as coercing your confession).

    However, there are some additional legal defenses to a solicitation that are different or merit further discussion. These include, without limitation:

    You were the intended victim

    You cannot be guilty of soliciting a crime if you would have been the sole victim had the other person(s) carried it out.8

    Legal insanity / involuntary intoxication

    You are not guilty of a crime in Colorado if you lack the legal capacity to commit a crime. One example is  Colorado’s illegal insanity defense. Another is involuntary intoxication (for instance, because you were drugged or exposed to toxic fumes).9

    Voluntary intoxication

    In general, being voluntarily intoxicated is not a defense to a crime in Colorado. However, with specific intent crimes, being voluntarily drunk or stoned can keep you from forming the necessary intent. Thus even if you drank or took drugs on purpose, if you were too drunk or wasted to intend that a specific crime be committed, you have a defense to criminal solicitation.10

    You changed your mind

    It is an affirmative defense to solicitation charges that after soliciting another person to commit a felony, you persuaded that person not to do so or otherwise prevented the commission of the crime. The burden is on you, however, to show that you did so under circumstances manifesting a complete and voluntary renunciation of the crime.11

    • Example: After Ethan’s girlfriend breaks up with him, Ethan hires someone to kidnap her minor child. However, after he cools down, he realizes it’s a bad idea. He calls it off, but the kidnapper goes ahead with the crime anyway. Ethan is arrested and charged with solicitation of kidnapping. But after Ethan’s Colorado solicitation attorney discovers text messages and emails showing that Ethan repeatedly tried to call off the crime, the prosecutor drops the charges.

    Note that your renunciation and abandonment of the crime will not be considered voluntary and complete if it is motivated in whole or in part by:

    • A belief that a circumstance exists that increases the probability of detection or apprehension or which makes the consummation of the crime more difficult; or
    • A decision to postpone the crime until another time or to substitute another victim or another but similar objective.12

    Illegal search and seizure

    If the evidence against you was obtained as the result of an illegal Colorado search and seizure, your Denver criminal attorney can bring a motion to suppress that evidence.

    This is a particularly effective defense in a solicitation case, where the prosecutor must establish your intent to facilitate a crime beyond a reasonable doubt. If any of the corroborating evidence is suppressed, it can be a crippling blow to the prosecutor’s case. Your Colorado criminal defense attorney will often be able to use the suppression to negotiate an acceptable plea bargain. In some cases, it can even lead to the prosecution dropping the case against you entirely.

    4. Related offenses

    Conspiracy and attempt

    Solicitation is similar in many ways to the Colorado crime of conspiracy, 18-2-201 C.R.S. and the Colorado crime of attempt,18-2-101 C.R.S., As a result, the penalties for each of these crimes is identical.

    A key difference between solicitation and conspiracy is that for the crime of conspiracy to take place, there must be an agreement between at least two people to commit a crime and an overt act in furtherance of that agreement. In the offense of criminal solicitation, on the other hand, the motive or intent of the person solicited is irrelevant to the question of whether the person soliciting the crime has violated the solicitation statute.

    To be guilty of a criminal attempt, you must engage in conduct constituting a substantial step toward the commission of the offense. This differs from both solicitation and conspiracy, neither of which require anything more than statements (albeit ones made with intent to facilitate or engage in a crime).

    The important thing to note is that each of these offenses requires proof of at least one fact not required by the other. For instance, a conspiracy may be committed without the inducement required for the crime of solicitation. Solicitation, on the other hand, can be committed without the parties ever reaching an agreement or without any overt act in furtherance of the crime solicited.

    This means that none of these crimes is a lesser-included offense of the other(s). Another way of saying this is that the crimes do not merge. This means that you can be convicted of both solicitation and conspiracy, or of both solicitation and attempt, or possibly even of all three.

    • Example: Jessica approaches her friend Mary about stealing some cocaine from the house of a drug dealer the two of them know. When Mary hesitates, Jessica sends her several text messages that establish that she is serious about doing it. At this point, Jessica is guilty of criminal solicitation. Later, Mary agrees and they work out a plan. Jessica and Mary are now guilty of criminal conspiracy. Still later, the women try to break into the drug dealer’s house, but they are caught by a pair of police officers who have had the dealer under surveillance. Jessica is charged with solicitation, conspiracy, AND an attempt to commit burglary and theft of a controlled substance. Mary is charged with conspiracy and attempt.

    Soliciting for child prostitution

    Soliciting for child prostitution,18-7-402 C.R.S., is a different offense than criminal solicitation.

    Criminal solicitation is what is known as an “inchoate” offense. An inchoate offense is one that exists only in relation to a separate crime that is defined elsewhere in the Colorado criminal code. Attempt consists of trying to commit a specific crime. Solicitation is an inducement to someone to commit a specific crime.

    Punishment for these inchoate offenses depends on the penalty for the specific crime attempted or solicited. So, for instance, solicitation to commit Colorado first-degree murder (18-3-102 C.R.S.), a class 1 felony, is a class 2 felony. Solicitation to commit Colorado robbery (18-4-301 C.R.S.), a class 4 felony, is a class 5 felony. And so on.

    But soliciting for child prostitution is a crime in and of itself. It does not make reference to any other section of the criminal code. Nor is the punishment for soliciting child prostitution dependent on any other crime. In fact, there is no such crime as child prostitution.

    What makes this distinction important is that soliciting child prostitution is not a specific intent crime. While abandonment and renunciation is an affirmative defense to solicitation, it is not a defense to soliciting for child prostitution.13

    Colorado Legal Defense Group
    4047 Tejon Street
    Denver, CO 80211

    Legal references:

    1. People v. Hood, App.1994, 878 P.2d 89, certiorari denied.; Melina v. People, 2007, 161 P.3d 635, denial of post-conviction relief affirmed 2013 WL 1680112, certiorari denied, habeas corpus denied, appeal dismissed; People v. Aalbu, 1985, 696 P.2d 796.
    2. 18-1-501 (5) C.R.S.
    3. Same.
    4. People v. Hood, note 1, supra.
    5. People v. Washington, 1994, 865 P.2d 145.
    6. 18-2-301 (3) C.R.S.
    7. People v. Aalbu, note 1, supra. See also Melina v. People, 2007, 161 P.3d 635, denial of post-conviction relief affirmed, certiorari denied, habeas corpus denied, appeal dismissed.
    8. 18-2-301 (2) C.R.S.
    9. 18-1-804 (3) C.R.S.
    10. 18-1-804 (1) C.R.S.
    11. 18-2-301 (4) C.R.S.
    12. 18-2-401 C.R.S.
    13. People v. Jacobs, App.2003, 91 P.3d 438, rehearing denied, certiorari denied, appeal after new sentencing hearing, certiorari denied, habeas corpus denied.

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