Conspiracy Doctrine: A Prosecutors Tool

Darling of the Modern Prosecutor's Nursery

Developments in the Law: Criminal Conspiracy. Harvard Law Review, vol. 72, no. 5, 1959

The weakness of the conclusion shows where improvement can best occur, by sharpening the legal discussion. Probably all this mens rea and actus reus bullshit can be dispensed with. Conspiracy is a prosecutor's tool becuse it changes the rules of evidence in crucial ways that you do not discuss. The law of attempt is in no way particular: intention and an effort to cause harm lead to liability, whose consequences are not limited by the defendant's failure to achieve the intended result. Obviously prosecution is fully compatible with innocence: that's what juries are for. Why is it relevant that acquittals are likely to result from some prosecutions? Surely that is true with respect to any penal law and an argument against none?

Like the MPC itself, the current draft suffers from formalism's indifference to reality. If the point is to argue that conspiracy and attempt prosecutions should not occur, then you should explain why the resulting impunity would be socially desirable. If the purpose is to ignore the realities of what actually happens out of deference to "fundamental principles" with Latin tags attached, then the necessary improvement is a clear explanation why those bits of dog-Latin are more important than the way we deal with organized crime and those who fail to kill or destroy despite their best efforts.

Why is one article, from outside the US, a sufficient bibliography? The discussion here is entirely basic, so why no US sources at all, and no actual dialogue with the cases? You have embedded Lexis search URLs that are not freely accessible, but which can be replaced from public sources.

The Unprecedented Crime of Conspiracy

-- By BrayanA - 27 Apr 2022

The Crime of Conspiracy

A crime in the United States typically consists of a mens rea and an actus reus. In other words, to be convicted of a crime, a prosecutor must prove beyond a reasonable doubt that the defendant realized a voluntary act that is the actual and proximate cause (actus reus) of the prohibited social harm with the requisite mental state (mens rea). Abiding by this standard is fundamental to the criminal justice system that punishes criminal offenders by taking their life, liberty, or property. The criminal justice system can only justify such a severe punishment by adhering to a high standard of criminal liability, which most criminal law doctrines do. However, the crime of conspiracy is an inchoate and complicity doctrine that has no place in criminal law.

A common law conspiracy is an agreement between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. Examples would be two or more individuals plotting a robbery or assassination. It is an aspect of conspiracy crimes that an actor's criminal objective – such as robbery or assassination – need not be realized to punish the individuals criminally. Thus, the crime for which the criminal justice system punishes individuals is something other than completing the offense. A person may be convicted of conspiracy before they effectuate any acts in preparation of the substantive crime. As such, the crime of conspiracy is an unprecedented and highly controversial doctrine.

Justifications and Critiques of the Crime of Conspiracy

Before discussing critiques of conspiracy law, it will be beneficial to explain the doctrines' proposed justifications. Proponents of conspiracy crimes divide justifications for conspiracy into the "specific object" and "group-danger" rationales. The specific object rationale emphasizes preventative law enforcement through the use of conspiracy as an inchoate offense. Generally, the conspiracy doctrine justifies police intervention much earlier than is permitted under attempt law. As for the group danger rationale, the proponents claim that inherent dangers exist in collective criminal actions that do not exist on the individual level. We will begin by discussing the latter rationale.

Specific Object Justification

The specific objective rationale is concerned with the intersection between conspiracy and an attempt to commit a crime (CR Snyman72). Like conspiracy, attempt is an inchoate crime that seeks to punish the actor before achieving their criminal goal. Criminal attempt occurs when an individual with an intent to commit an offense carries out a substantial step, beyond preparation, toward the commission of the crime (Model Penal Code § 27.09[D]). In contrast, conspiracy punishes an actor at a much earlier stage in the process of committing a crime. Whereas attempt punishes an actor after taking a substantial step towards the commission of a crime, conspiracy punishes an actor for mere conspiracy to commit a crime. The justification for earlier intervention in conspiracy is that conspiracy is "concrete and unambiguous; it does not present the infinite degrees and variations possible in the general category of attempts" (Model Penal Code § 5.03 Commentary). Thus, it is less likely with conspiracy than with attempt that, equivocal behavior will be mistaken as preparation to commit a crime. This rationale has become the justification for punishing conspiracy as a crime.

Yet, this rationale does little to address the fundamental issue of conspiracy – the unprecedented emphasis on mens rea coupled with a de-emphasis on the actus reus. With attempt, the mens rea is the intent to commit an offense, and the actus reus is the substantial step taken towards the commission of the crime. With conspiracy, the men's rea is the intent to agree and the intent to commit the target crime, and the actus reus is the formation of an agreement (Cortez). In other words, drawing parallel to attempt, the substantial step in conspiracy is the agreement itself, which is a trivial action as far as other criminal law doctrines are concerned. In reality, conspiracy law punishes intent alone. As such, conspiracy blurs the line between punishing an action taken to prepare for the commission of a crime and punishing thoughts, which are otherwise never a criminal offense.

Group-Danger Justification

The group-danger rationale follows from a presumption that those who conspire to commit a crime are less likely to abandon their intent before the commission of the crime – "the actor knows . . . that the future is no longer governed by his will alone; others may complete what he has had a hand in starting" (Model Penal Code § 5.03 Commentary). Similarly, punishing conspiracy is justified in that two or more actors agreeing to commit a crime are deemed more dangerous to society than an individual who intends to commit the same crime. As noted by Justice Jackson, "the strength, opportunities, and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer." This rationale has become the justification for why conspiracy can punish actions that otherwise alone would not be illegal.

Whether or not these claims have empirical support is irrelevant. The same fundamental problems that arise with the specific-object rationale also apply to the group-danger rationale. Furthermore, the ability to punish group actions that would otherwise not be illegal is too powerful of a tool for prosecutors to wield at their discretion Judge Learned Hand has characterized the conspiracy doctrine as the "darling of the modern prosecutor's nursery," which prosecutors have historically used to suppress public outrage against government policies (Dennis; Yates; Spock; Dellinger).

Closing Remarks

More than any other area of law, the criminal justice system needs to be scrutinized, given the harsh penalties that the system can impose. Judges and lawyers need to be cautious of criminal doctrines like conspiracy law which stride away from the fundamental principles of criminal law and give rise to the potential for abuse.

Works Cited

Snyman, CR. “The History and Rationale of Criminal Conspiracy.” The Comparative and International Law Journal of Southern Africa, vol. 17, no. 1, 1984, pp. 65–77

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