Concept
The Unlawful Object
Elements of Conspiracy
The Unlawful Object
The earlier sections of this chapter asked whether the parties reached an agreement and whether each intended its objective. A further question concerns the objective itself: what kind of thing must the parties have agreed to do for their agreement to count as a conspiracy? The common-law answer was generous, since an agreement for an unlawful purpose, or for a lawful purpose pursued by unlawful means, was enough.1 Most states have since tightened the answer by tying the object to crime.2 The first part below states the common-law rule and the theory that produced it, and the second part shows why legislatures narrowed it.
Broad Common-Law Objects
At common law the parties did not have to agree to commit a crime. A conspiracy existed when they agreed to pursue an unlawful objective, or agreed to achieve a lawful objective by unlawful means, and the word unlawful reached past conduct classified as criminal to noncriminal activity that the law regarded as contrary to the public welfare.3 The formulation is usually broken into three qualifying agreements: to perform an unlawful act, to achieve an unlawful goal, or to achieve a lawful goal by unlawful means.4 The third form shows that the test looks at the whole plan, because the destination may be harmless, such as acquiring a building or winning a contract, while the road to it is not. The unlawful-object requirement is therefore met by a defective end or by a defective route.
Courts reached beyond crimes because of a theory about groups. An early decision reasoned that an act which may do no harm when one person attempts it, and which can readily be stopped, may endanger public peace and the security of persons and property when a combination attempts it, and it located the danger in the combination's strength "by the very weight and power of numbers."5 The reasoning added that conspirators draw new courage from one another and are less likely to hold back than an individual, and that concerted wrongdoing weakens the moral fibre of the community.6 That theory explains why the rule is so broad. If the danger lies in the combination rather than in the act, the act need not be a crime in its own right, because what makes it threatening is that several people have committed themselves to it together. A lone actor who might hesitate has no one to reinforce the decision, while two people who have agreed each hold the other to the plan.
English courts applied the theory to combinations whose objects no statute made criminal. It was held a criminal conspiracy to combine to accuse a man falsely of fathering an illegitimate child, to marry off a pauper so that another parish would bear the cost of his support, or to raise workmen's wages.7 Agreements to defraud by acts that would not have been criminal if one person did them were treated the same way, and combinations to defraud the government were declared criminal conspiracies.8 The wage example shows the rule at its sharpest, since a single worker who asked for more pay committed no crime. The pattern is that an act lawful for one person can become criminal when two or more agree to do it.9
The breadth was a development and not the original shape of the offense. Conspiracy began narrowly, under statutes of the reign of Edward I that reached only combinations to procure false indictments, bring false appeals, or maintain vexatious suits.10 In the seventeenth century an agreement to commit any offense became punishable, and courts began to lean toward punishing acts that were immoral though not forbidden by express law, yet the great majority of decisions still required that the object or the means be criminal.11 The 1832 statement of Lord Denman, that an indictment must charge a conspiracy either to do an unlawful act or to do a lawful act by unlawful means, was then seized upon by courts and became the generally accepted definition.12 That definition probably rests on a misreading of the early cases, but it has survived wherever a statute has not changed it.13
The agreement is the same as it would be in any other jurisdiction, and the only fact that gives the prosecutor a charge is the rule that an unlawful object need not be a crime. On an exam, a stem describing a plan to do something wrongful but not criminal should therefore be read for the jurisdiction's rule on the object before any conclusion is drawn.
Modern Criminal-Object Limits
Most states now provide that the object of a criminal conspiracy must be some crime or some felony.15 Some statutes keep the means prong in a narrowed form, so that a lawful object pursued by criminal means still qualifies. What has dropped out is the open-ended category of noncriminal wrongs. An agreement to commit a civil wrong, or to do something merely thought harmful to the public, no longer supports a conspiracy charge in those states, however many people join it.
The narrowing happened because the broad rule was easy to abuse. Statutes aimed at combinations to commit acts injurious to public health or morals, to trade or commerce, or to the perversion or obstruction of justice were particularly objectionable, and state courts upheld them despite a warning from the Supreme Court about their vagueness.16 The difficulty follows from how an object like that is defined. When the question is whether a plan is contrary to the public welfare, the line is drawn by the prosecutor and the judge after the plan has been made, and the people who agreed could not have known in advance that it was forbidden. When the object must be a crime, the legislature has already fixed the line in the substantive law, and a person can read the code to learn which agreements are dangerous. The reform also answers the group-danger theory without the vagueness: if some activity should be criminal only when a group undertakes it, the legislature can name it in a special conspiracy provision as precise as any other penal provision, and if a group can be reached for acts one person could do with impunity only because of technical gaps in the substantive law, the remedy is to fix that law.17
The most recent recodifications accordingly limit the general conspiracy statute to objectives that are themselves criminal, a limit that the Model Penal Code's own definition, taken up later in this chapter, also reflects.18 The change is not complete everywhere. The general federal conspiracy provision reaches an agreement to commit an offense against the United States and also an agreement to defraud the United States or any of its agencies, and some states have comparable provisions naming a noncriminal object.19 Where a statute names such an object, it controls. Where it does not, the criminal-object requirement applies.
The first two versions differ only in whether the planned conduct is criminal, so that is the fact that decides the case. If the stem does not identify the jurisdiction, state the common-law rule and then note that most states now require a crime. In those states a civil wrong alone is not enough, and the analysis turns to whether the planned end, or the planned means, is itself a crime.20
Broad Common-Law Objects
At common law the parties did not have to agree to commit a crime. A conspiracy existed when they agreed to pursue an unlawful objective, or agreed to reach a lawful objective by unlawful means, and the term unlawful extended past criminal conduct to noncriminal activity that the law regarded as contrary to the public welfare.22 The rule therefore has two branches, one aimed at the end the parties seek and one aimed at the route they take. Students usually remember the first branch and lose the second, yet a lawful goal pursued by unlawful means satisfies the requirement just as an unlawful goal does.23 Taken together, the branches make up the unlawful-object requirement, which a plan escapes only when both its end and its means are lawful.
The standard definition of the offense builds both branches into a single sentence: a combination to accomplish a criminal or unlawful purpose, or to accomplish a purpose not itself criminal or unlawful by criminal or unlawful means.24 That breadth was a later development. Conspiracy began as a narrow offense that reached only combinations to procure false indictments, bring false appeals, or maintain vexatious suits, and in the seventeenth century an agreement to commit any offense became punishable.25 The formula about unlawful acts and lawful acts done by unlawful means came afterward and was adopted by courts as the accepted definition, although it probably rests on a misreading of the early cases. It has survived wherever a statute has not changed it.26 An American decision of the mid-nineteenth century, State v. Burnham, shows how wide the definition ran, since it reached agreements to commit acts that were "corrupt, dishonest, fraudulent, immoral, and in that sense illegal."27
Courts were willing to punish agreements to do noncriminal things because of a view about what groups can do that individuals cannot. An act that causes little harm when one person attempts it, and that can easily be stopped, was thought to endanger public peace and the security of persons and property when a combination attempts it, since the combination acts with strength of "the very weight and power of numbers."28 The theory has an internal logic. Each party's commitment becomes a promise to the others, so backing out means breaking faith with a partner as well as changing one's own mind, and a plan that a lone actor might drop at the last moment is harder to drop when others are counting on it. The same reasoning added that conspirators draw new courage from one another and that concerted wrongdoing weakens the moral fibre of the community.29 If the danger lies in the combination, the act itself need not be a crime, because the threat comes from the fact that several people have committed themselves to it together.
English courts applied that theory to combinations whose objects no criminal statute reached. It was held a criminal conspiracy to combine to accuse a man falsely of fathering an illegitimate child, to marry off a pauper so that another parish would bear the cost of his support, or to raise workmen's wages.30 The wage example shows the effect most plainly. A single worker who asked for more pay broke no law, yet the same demand by workers who had agreed to make it together was punished. The principle that follows is that conduct lawful for one person can become criminal when it is the object of an agreement among several.31
Fraud supplies the clearest family of examples. Agreements to defraud by acts that would not have been criminal if one person did them were punished as conspiracies, combinations to defraud the government were declared criminal conspiracies, and schemes to defraud individuals or corporations were generally treated the same way, even before the fraud became a substantive crime.32 Two people who agree to deprive the government of revenue through a series of steps, none of which is a crime when taken alone, therefore fall within the common-law rule. The agreement is the offense, and its object, taking from the government what it is owed, is unlawful even though no single step is.33
The same idea survives in federal statutory law, which is a statutory rule and not the common-law rule itself. The general federal conspiracy provision reaches an agreement to commit an offense against the United States and also an agreement to defraud the United States or any of its agencies in any manner or for any purpose.34 Because defrauding is an object in its own right, a conviction does not depend on proof that the parties planned a separate crime. In United States v. Klein, the defendants impeded an IRS investigation by making false and misleading entries in corporate books, were acquitted of tax evasion, and were nonetheless convicted of conspiracy to defraud by impeding the agency in its functions, and the Second Circuit upheld the convictions.35 The breadth of that clause has drawn pushback. Some courts have insisted that where Congress enacted a specific statute covering the conduct, the prosecution proceed under the offense clause, since otherwise prosecutors could obtain felony punishment for conduct Congress made only a misdemeanor, while other courts confine that limit to its facts.36
The bakery agreement and the loan-application agreement are equally firm and equally planned, so the fact that moved the answer is whether the end or the means carried an unlawful element. An agreement alone never makes a conspiracy, because the object has to be unlawful in one of the two ways described above. On an exam, a stem that describes a plan to do something wrongful but not clearly criminal should be tested against the jurisdiction's rule on objects before any conclusion is drawn, and the means branch should be checked even when the stated goal looks harmless.
Modern Criminal-Object Limits
Most states no longer follow the broad common-law formula just described. They provide that the object of a criminal conspiracy must be some crime or some felony, so an agreement to do something merely wrongful, harmful, or immoral falls outside the offense.38 Some statutes keep a narrowed version of the means branch, under which a lawful end pursued by criminal means still qualifies. What has dropped out is the open-ended category of noncriminal wrongs. A civil wrong, or conduct thought harmful to the public that no statute forbids, cannot support a conspiracy charge in these states, however many people agree to it. The Model Penal Code reaches the same place through its definition, which makes a person guilty of conspiracy to commit a crime when the person acts with the purpose of promoting or facilitating that crime.39 The Code therefore begins from a criminal object instead of an unlawful one.
The change answers two separate criticisms of the broad rule, and each has its own mechanism. The first is vagueness. Statutes that punished combinations to commit acts injurious to public health or morals, to trade or commerce, or to the obstruction of justice gave the people they governed no definite standard, and state courts upheld them anyway despite a warning from the Supreme Court about their vagueness.40 When the question is whether a plan is contrary to the public welfare, the prosecutor and the judge supply the answer after the plan exists, so the people who agreed could not have known beforehand that they were crossing a line. When the object must be a crime, the legislature has already drawn the line in the substantive criminal law, and anyone can read the code to learn which agreements are dangerous.
The second criticism is abuse. The agreement is itself the act of conspiracy, so an elastic object lets a prosecutor charge a group on the strength of disapproval of its plan, with no crime anywhere in the picture. The traditional formula reached agreements to do acts that were "corrupt, dishonest, fraudulent, immoral, and in that sense illegal," as one nineteenth-century decision put it, and commentators attacked the idea that people could be convicted of conspiring to do a legal act merely because it was immoral or dishonest.41 Most jurisdictions responded by requiring an agreement to commit a crime.42
The reform leaves no gap that the old rule had to fill. If some activity should be criminal only when a group undertakes it, the legislature can name that activity in a special conspiracy provision as precise as any other penal provision. If group activity reached conduct that one person could do with impunity only because of technical gaps in the substantive law, the remedy is to repair that law.43 The most recent recodifications accordingly limit the general conspiracy statute to objectives that are themselves criminal.44
The first two versions differ in a single fact, whether the agreed conduct is a crime, and that fact decides the result. The agreement, the number of participants, and the seriousness of the planning are identical in both. The third version shows that the means branch has to be checked even when the stated goal looks harmless.
Two qualifications keep this from becoming too absolute. A statute that names a noncriminal object controls, and the general federal provision is the standard example, since it reaches an agreement to defraud the United States or any of its agencies as well as an agreement to commit an offense against the United States, while some states have comparable provisions.45 The broad common-law rule also continues to govern wherever a statute has not changed it.46 Exam problems generally follow the modern criminal-object rule unless the stem says otherwise, so the safe course is to state the common-law rule briefly, apply the criminal-object requirement, and let any statute the facts identify override both. In the modern states a civil wrong alone does not supply the object, and the analysis turns on whether the planned end or the planned means is itself a crime.