[ You don't need the old version to be carried along, because it is under the "History" button and its presence makes taking the difference among versions more rather than less complicated, so I've removed it. ]

Collective Role Irrationalization and Criminal Conspiracy Doctrine

Introduction

I have long been intrigued by the idea of “the mass.” The notion that individuals, when coming together and forming a group, can transform into an entirely different entity, is completely fascinating. Gustave Le Bon observed in his book, The Crowd, that “under certain given circumstances…an agglomeration of men presents new characteristics very different from those individuals composing it.” In this short paper, I will explore Leff’s conception of the mass as a role-validating force and will use his perspective as a framework with which to ask questions about criminal conspiracy doctrine.

Previously, I had only considered the mass from the standpoint of a political sociologist in an effort to understand how a seemingly disjointed and irrational force, such as a mass of people, could accomplish social change. However, Leff’s book, Swindling & Selling, presents a function of the mass distinct from its ability to get things done in a political sense.

Leff’s Conception of the Mass

In Part I, Leff begins his discussion of the Godcon by noting that the same con, executed using a “kindly old gentleman” instead of a religious figure, would not be as successful as moving the pitch “from the implausible to the impossible” (61). By adding the divine element of “God,” the pitch “becomes persuasive” (61). It stays persuasive at least partly due to the role of the mass in the Godcon. Leff explains:

The marks/players can then intensify their belief and validate their roles by looking at each other. ...it is much easier to believe (to the point of being almost wholly unable to disbelieve, even in the face of large quantities of dissonant evidence) when a mass of people all around you are believing what you believe, openly and ostentatiously (62).

Role Irrationalization

For Leff, then, the mass plays an important function in the human actor’s rationalization - or perhaps irrationalization - of his role in the Godcon. The presence of others creates a new force that helps an actor turn what Leff considers an impossible scenario into a winning lottery ticket. Durkheim, in his work Elementary Forms of Religious Life, called this energy which can cause people to act differently in a crowd than they might as deliberate individuals “collective effervescence.” Through the mass, Durkheim explains, an idea “becomes independent of every individual consciousness; it rises above all particular minds and events. It is a law whose value depends upon no person” (218).

Collective Attitudes and Conspiracy Doctrine

New implications of role irrationalization began to dawn on me last week when my criminal law class approached the doctrine surrounding conspiracy. The Model Penal Code (MPC) recognizes that conspiracy is an inchoate crime meant to reach preparatory conduct. Comment to S. 5.03 at 387 (1985). The MPC justifies the punishment of an actor for something he has not already done, or something that he has abandoned or denounced, by invoking the need to “strik[e] against the special danger incident to group activity.” Id. The Supreme Court corroborated this perspective in United States v. Jimenez Recio , noting that such group criminality “decreases the probability that the individuals involved will depart from their path of criminality.” 537 U.S. 270 (2003), quoting Callanan v. United States, 364 U.S. 587, 593-594 (1961). Like the parishioners in the Godcon, persons contemplating committing a crime together are assumed in conspiracy doctrine, as Leff would say, to “intensify their belief and validate their roles by looking at each other.”

Implications for the Criminal Justice System

Given Leff’s perspective, it makes sense for criminal punishment to recognize the dangerousness of role-affirming in group criminality. However, it does not seem to sit well with a fundamental aspect of culpability built into our criminal justice system that recognizes the individuality and personal blameworthiness of the offender. This is particularly important in criminal cases, where the stakes can involve life or death, and almost inevitably result in a social stigma that functions to turn the rest of society into an incarcerating institution. The New York Court of Appeals, rejecting the Pinkerton doctrine that attributed the acts of one conspirator in furtherance of the conspiracy to all conspirators, explains, “It is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant, ...to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for the substantive offenses in which he did not participate.” People v. McGee? , 399 N.E.2d 1177, 1181-1182 (1979).

Certainly, it may be questionable to compare a conspiracy of two people to Leff’s example of marks in a Godcon. Still, an examination of “somewhat typical” conspiracy cases pointed to a number of conspiracies in which twelve, twenty-one, even twenty-six conspiracy defendants were involved. Paul Marcus, Criminal Conspiracy Law, 1 Wm. & Mary Bill Rits. J. 1, 8-11 (1992). The comparison may not be that far off.

Directions for the Future

Conspiracy doctrine has yet to recognize or resolve the conflict between role irrationalization and individualized criminal culpability. If we acknowledge that there is some validity to the idea that conspirators do have an impact on the likelihood of a crime being committed, as this analysis suggests, then the solution cannot be to eliminate conspiracy altogether.

Rather, the law can take steps to individualize conspiracy sentences. One means of reform is suggested by Jens David Ohlin in his article, “The Law of Conspiracy and Collective Reason.” Journal of Criminal law and Criminology, Fall 2007. Ohlin’s analysis classifies conspiracies into three types, based on the intermingling and organization of the actors. This could be a basis for bringing individualization into a one-size-fits-all body of law, and could reconcile the conflict inherent in conspiracy doctrine.

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• This isn't the way I'd have chosen to conclude the essay, either, by introducing at the last moment an idea that's not your own. If it were up to me, I'd keep looking for another way to take the reader.