In my Googling, I learned that (at least in most of the U.S.) a defendant cannot be an accessory to a misdemeanor. What about someone just nagging and insisting on it?
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4Does the [tag:united-states] tag apply here? – Hobbamok Mar 16 '21 at 08:40
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2@Hobbamok at this point, no: we've gotten answers for a variety of jurisdictions, and adding that tag would invalidate them. – Ryan M Mar 16 '21 at 23:45
4 Answers
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This is called solicitation.
A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime.
bdb484
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1As your link mentions, this may not be a crime in some states that require the underlying crime to be more serious than a misdemeanor. – George White Mar 15 '21 at 05:29
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2Thanks to this wording, I found this in my local laws: “A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).“ – Frungi Mar 15 '21 at 13:52
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@Frungi, yeah, whether it applies to misdemeanors if entirely up to local laws – Hobbamok Mar 16 '21 at 08:41
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@bdb484 I read through it but am not absolutely sure: does that link you quoted from apply to the [tag:united-states] or is it like a general guideline on criminal codes? – Hobbamok Mar 16 '21 at 08:42
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2It's model language, and most states in the United States have adopted it. The states that don't use it will generally follow the same principles, using different language. – bdb484 Mar 16 '21 at 10:16
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Note that you can't actually be convicted if you merely encouraged the crime verbally unless the criminal act was imminent at the time you encouraged it. So "Kill him now" can be punished but "Go to Atlanta and kill him" cannot because of the Supreme Court's holding in Brandenburg. Offering to pay someone to commit a crime is not merely encouraging it. – David Schwartz Mar 16 '21 at 17:59
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@DavidSchwartz The Supreme Court has rejected this argument. The imminence requirement is part of the test for the "incitement" exception to First Amendment protection; because solicitation is not "abstract advocacy," it is more properly run through the "speech integral to criminal conduct" exception, and the courts don't impose any imminence requirement there. – bdb484 Mar 16 '21 at 19:01
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See, e.g., United States v. Williams, 553 U.S. 285 (2008) ("Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. ... Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection."). – bdb484 Mar 16 '21 at 19:01
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@bdb484 That's fully consistent with what I said. These are all cases that go beyond mere encouragement. – David Schwartz Mar 16 '21 at 19:10
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Maybe I'm missing something. As I understand it, you're saying Brandenburg would prohibit punishment for "Go to Atlanta and kill him"; I'm saying Williams would allow it and Brandenburg would be inapplicable. – bdb484 Mar 16 '21 at 19:13
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@bdb484 I don't agree. Williams would allow it if it was an offer, advertisement, or solicitation. Brandeburg prohibits it if it's merely encouragement. "Get me something illegal so that I can have it for my use" is way beyond merely encouraging someone to commit a crime. "Go to Atlanta and kill him" is not an offer or solicitation. – David Schwartz Mar 16 '21 at 19:17
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That's not really what Brandenburg says, as Brandenburg didn't actually encourage anyone to do anything. He just said that if Congress keeps oppressing the white man, "it's possible that there might have to be some revengeance taken." His speech wasn't protected because it was "mere encouragement"; it was protected because it was "abstract advocacy." That's the question that flips the Brandenburg / Williams switch, and "Go to Atlanta and kill him" is sufficiently specific to trigger Williams. – bdb484 Mar 16 '21 at 19:31
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Your intepretation is essentially the same one the Supreme Court rejected in Williams: "To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. See Brandenburg v. Ohio ... The term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer." – bdb484 Mar 16 '21 at 19:35
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@bdb484 I think we're in violent agreement. As you now state, mere encouragement, like "I encourage you to obtain child pornography" can only be punished if it meets the Brandenburg requirement of imminence, as I said. It has to go beyond mere encouragement (for example, into solicitation) for Williams to apply. As you said, solicitation is not mere encouragement. – David Schwartz Mar 17 '21 at 04:45
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Incidentally, crimes for which you can be liable without actually personally committing all of the acts of the crime (e.g. solicitation, attempt, conspiracy) are called, collectively, "inchoate offenses." – ohwilleke Aug 09 '21 at 21:55
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In england-and-wales the offence is encouraging an offence contrary to s.44 of the Serious Crime Act 2007. Here, we make no distinction between the level or type of offence being encouraged.
Previously, the offence was inciting the commission of another offence contrary to Common Law which was abolished by s.59 of the 2007 Act.
Stilez
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4"Here" in this answer, means "in england and wales", not just in this specific law. – Stilez Mar 15 '21 at 14:54
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2@Stilez That is wrong. Section 44 extends to England & Wales and Northern Ireland. More generally, in the UK you should never assume an Act's jurisdiction. Always check the "extent" (or equivalent) section. – JBentley Mar 16 '21 at 16:19
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You didn't tag your question with some country.
So here is my answer for germany:
In Germany, §26 StGB states:
Anstiftung
Als Anstifter wird gleich einem Täter bestraft, wer vorsätzlich einen anderen zu dessen vorsätzlich begangener rechtswidriger Tat bestimmt hat.
The word "Anstiftung" translates to "incitement" or "instigation".
Freely translated, the law means:
A person who deliberately instigates another person to deliberately perform an illegal act will be punished the same way as the person who performed the illegal act.
Martin Rosenau
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Just encouraging someone to commit a crime can make one an accomplice. See, e.g., People v. Prettyman
an aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.