Conspiracy is one of the most nebulous areas of American law. Rather than punishing individuals for the actual crimes they have committed, conspiracy laws incriminate individuals for the agreed upon intent to commit a crime. Not only do these laws waste taxpayer money by locking people up for decades at a time, they wrongfully incriminate innocent individuals before any crime has even taken place.
Seeing as conspiracy laws lock people up before they even have the chance to attempt to commit a crime, why are these laws on the books in the first place? Many supporters of conspiracy laws contend that collective action is significantly more dangerous than individual action. John Inazu from the Washington University School of Law , “criminal agreement increases the likelihood that a criminal objective will be achieved, because one is less likely to abandon the crime in a group setting (out of fear, loyalty, or camaraderie) and division of labor makes crime more efficient.” Others defend conspiracy laws on utilitarian grounds, arguing that the police’s need to protect the public good from future harm far outweighs the life of the innocent actor who has yet to commit said harm.
One of the most serious issues regarding conspiracy laws is the Pinkerton Standard. In , the Supreme Court ruled that co-conspirators can be held liable for any substantive crimes committed in furtherance of the conspiracy, even if they did not directly participate in the commision of that substantive crime, so long as that act vaguely results in the “furtherance” of the conspiracy. This standard is problematic because it incriminates minor conspirators for serious crimes that they had little or no control over, even when there is no evidence that they participated in that particular crime. Even if the conspirator had absolutely no knowledge that a substantive crime was committed by a fellow co-conspirator, he can still face the exact same due to his conspiratory association with the individual who did commit the crime.
Even more disturbing than the Pinkerton Standard, the “lawful act through unlawful means” definition of conspiracy that conspirators can be held liable for crimes that would not be considered illegal if committed by a single individual. Justice Robert Jackson points out the strangeness of this legal principle in his concurring opinion in , arguing that “attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law.” This standard is completely illogical for it asserts the legitimacy of a “group will” — attributing criminal liability to an entire group of people who may not even be aware that a crime even took place at all. Fortunately, many states have not adopted this “lawful act through unlawful means” standard on the grounds that it violates the doctrine and deprives convicted individuals of their due process rights.
Conspiracy laws are also problematic in that they punish people for what they say or by whom they choose to associate with as opposed to what they explicitly do. Although our legal system operates under the presumption of innocence, this standard is all but ignored when it comes to conspiracy cases. Because conspiracy laws involve collective action, conspirators face the prisoner’s dilemma and are “prodded into accusing or contradicting each other” by police officers, increasing the likelihood that they will face criminal charges.
Retributive justice arguments contend that individuals should face punishments that are proportionate to the crimes they commit. It is important to distinguish the crime of attempt — taking direct, albeit failed, action to carry out a crime — from the crime of conspiracy. Although the is more restrictive than conspiracy laws, oftentimes, as Phillip E. Johnson from the California Law Review puts it, “plotters who are arrested before they can carry out their dangerous schemes may be convicted of conspiracy even though they did not go far enough towards completion of their criminal plan to be guilty of attempt.” When a conspirator merely plans to commit a felony, he can be charged with the exact same he would have faced had he actually carried out the criminal act in full. This standard is extremely problematic, for it punished individuals for acts they have not committed.
Though the act of planning a crime involves the intent to cause harm to others, that intent should not logically be equated to the act of explicitly following through with the crime in full. As Johnson so eloquently , it appears that our justice system is more concerned with “the clarity and strength of the defendant's criminal purpose rather than the proximity of his actions to the completed crime.”