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Black’s Law Dictionary (10th edition, 2014), defines “criminal solicitation”, under “solicitation” (2), as:   “The criminal offense of urging, advising, commanding, or otherwise inciting another to commit a crime <convicted of solicitation of murder>.   Solicitation is an inchoate offense distinct from the solicited crime.  Under the Model Penal Code, a defendant is guilty of solicitation even if the command or urging was not actually communicated to the solicited person, as long as it was designed to be communicated. …Also termed criminal solicitation; incitement.”

The crime of “criminal solicitation” does not appear in the Massachusetts statutes.  However, “criminal solicitation” is a criminal offense at common law in Massachusetts.  This means that it appears only in the case law (court cases) of Massachusetts, the decisions of which have the force of law.

Courts in Massachusetts, as in the rest of the country, follow the doctrine of stare decisis [Latin: “to stand by things decided”], “The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. “–Black’s Law Dictionary (10th edition, 2014)

In many states, criminal solicitation is punishable with the same severity as the crime solicited. In Massachusetts, however, criminal solicitation of a felony is punishable only as a misdemeanor. (Misdemeanors in Massachusetts are punishable by sentences of no more than 2 ½ years, and are not punishable by imprisonment in a state prison, but only in a county jail or house of correction.)

Massachusetts case law is clear on this point.  In the case of Commonwealth v. Barsell, 424 Mass. 737 (1997), the court, despite arguments by the attorney representing the Commonwealth, reiterated the rule that the solicitation of a felony (in this case murder) is indeed a crime at common law, but is punishable only as a misdemeanor.  The court referred for its reasoning back to the case of Commonwealth v. Willard, 22 Pickering 476 [39 Mass. 476] (1839) as “the last clear and valid pronouncement on the law of solicitation within this state and we are bound to follow it.”

The only example in the Massachusetts statutes that criminalizes an act of solicitation has to do with prostitution, and the law names it not solicitation, but “Engaging in sexual conduct for a fee”:   (MGL c.272 s.53)

“Whoever engages, agrees to engage or offers to engage in sexual conduct with another person in return for a fee, shall be punished by imprisonment in the house of correction for not more than 1 year or by a fine of not more than $500, or by both such imprisonment and fine, whether such sexual conduct occurs or not.” [Italics mine] (If the person solicited for sex is under age 18, it may be treated as a felony, “whether such sexual conduct occurs or not”, and may be punished by up to 10 years in the state prison.)

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