§705-512 Grading of criminal solicitation.

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§705-512 Grading of criminal solicitation. Criminal solicitation is an offense one class or grade, as the case may be, less than the offense solicited; provided that criminal solicitation to commit murder in any degree is a class A felony. [L 1972, c 9, pt of §1; am L 1997, c 149, §2]

Cross References

Disposition of convicted defendants, see chapter 706.

COMMENTARY ON §705-512

This section provides for grading of criminal solicitations. Solicitations are offenses one class or grade, as the case may be, less than the offense solicited. For example, solicitation of a class A felony is a class B felony; solicitation of a class C felony is a misdemeanor; solicitation of a petty misdemeanor is a violation. This reflects the position that generally solicitations, because of the reluctance of the defendant himself to engage in the specified conduct or cause the specified result, and the dependence of the conduct or result on the will of another, should be treated as a lower order of penal liability than commission of corresponding substantive offenses.

In the past Hawaii law equated criminal solicitation with attempt in imposing penalty.[1] One who was guilty of solicitation ("instigation") under Hawaii law was "subject to the penalty of an attempt to commit the offense."[2] Hence, as in the previous Hawaii law of attempt, solicitation carries a maximum sentence of twenty years' imprisonment, with the option of a fine if the penalty for the completed substantive offense is a term of less than twenty years' imprisonment. The Code, in reducing the penalty for all criminal solicitation one class or grade from that for the completed substantive offense, departs from past law and provides for a more rational relationship between the sentence for soliciting a substantive offense and the sentence for that offense.[3]

SUPPLEMENTAL COMMENTARY ON §705-512

Act 149, Session Laws 1997, amended this section to provide that criminal solicitation to commit murder in any degree is a class A felony. The legislature found that the offense of murder warranted punishment under the Code sufficient to fit the grave consequences of the crime, and that persons who are found guilty of conspiracy or solicitation to commit murder should also be penalized to a similarly serious degree. The legislature recognized that two Hawaii Supreme Court opinions, State v.

Kaakimaka (84 H. 280, 933 P.2d 617 (1997)) and State v. Soto (84 H. 229, 933 P.2d 66 (1997)), concluded that conspiracy to commit murder and solicitation to commit murder are class C felonies. The legislature acknowledged that the decisions had led to incongruous sentencing under the sentencing guidelines of the Code. Conspiracy and solicitation are ordinarily designated the same level of felony offense as the underlying crime, or at the very least, one grade lower. Senate Standing Committee Report No. 1600.

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§705-512 Commentary:

1. H.R.S. §702-11.

2. Id.

3. Cf. M.P.C. §5.05(1).