Introduction

Forming a Criminal Conspiracy

Introduction

Most of the offenses covered earlier in a criminal law course require a physical act, such as a blow, a taking, or a fire set. Conspiracy can be committed with words alone, because the criminal act is the agreement itself.¹ It is an inchoate offense, meaning a crime that punishes conduct on the way to a harm, and like attempt it is defined by its relationship to a target crime, the offense the participants agreed to commit.² Attempt requires an act that goes beyond mere preparation.³ Conspiracy has no comparable demand, since the prosecution need not show that the defendants ever came close to the target offense.⁴ The law reaches that far back because concerted activity carries special and continuing dangers: people committed to one another are less likely to abandon a plan than a lone wrongdoer, and treating the agreement as the crime lets police intervene and make arrests at a very early stage.⁵

The common-law definition explains that result, and it has three parts. At common law, a conspiracy consists of an agreement between two or more persons, the intent to enter into that agreement, and the intent that the participants accomplish the objective of the agreement.⁶ The first element supplies the actus reus, the conduct side of the crime, and here the conduct is the agreement, which may be explicit or implicit.⁷ The second and third elements make up the mens rea, the required mental state: one intent points at the act of agreeing, and the other points at the goal the agreement serves. Okafor and Lind satisfy every part at the table, because two people reached an understanding, each meant to join it, and each meant that the robbery be carried out. The agreement must also aim at an unlawful objective, a point taken up below, but nothing further has to be done toward the robbery itself.

The idea that an agreement alone is punishable is old. In the Poulterers' Case, decided by the Court of Star Chamber in 1611, the defendants had agreed to bring a false accusation against a man so clearly innocent that the grand jury refused to indict him, and the court still held that a conspiracy had occurred, because the gist of the offense is the agreement.⁸ An offense complete on words alone comes close to punishing thought, which is why each piece of the definition has to be read with care.⁹ This chapter therefore takes the pieces in turn: the agreement and why it counts as the act, the intents the participants must share, and the unlawful object the agreement must aim at, before turning to the Model Penal Code's definition and a method for working conspiracy problems. Consequences that follow once a conspiracy exists, namely vicarious liability for co-conspirators' crimes, merger with the target offense, withdrawal, and joinder, are taught in other readings and are not covered here. The first question is what counts as an agreement, and why the law treats it as the act of the crime.