Two Guilty Minds

Two Guilty Minds

The first plurality rule concerns mental states. At common law a conspiracy exists only if at least two participants genuinely share a criminal objective, and each of them must actually intend to carry out the unlawful agreement.¹ Counting participants therefore means counting minds. A person who attends the planning, nods along, and even runs an errand adds to the count only if that person truly holds the criminal objective. The same rule settles what happens to the partner of someone who merely pretends to agree: the partner cannot be convicted, because the second mind is missing.² Pretended agreement has its own section below. The task here is to see what counts as a guilty mind in this setting and why a single one is never enough.

Because the agreement is the act of conspiracy and the intent to achieve the unlawful objective is its mental state, the plurality requirement bears on the mental state as much as on the agreement.³ The prosecution must show the requisite intent as to at least two persons, so that there is a common design. If only one party to the agreement has the necessary mental state, even that person may not be convicted of conspiracy.⁴ The intent is also proved defendant by defendant. A participant who joins the plan while intending only a lesser or different objective has not joined the criminal objective of the others, and so does not supply a second guilty mind for the offense they are planning.

The reason for counting minds comes partly from the word itself and partly from what conspiracy is meant to catch. Plurality is inherent in the meaning of agreement, since it usually takes two people to agree.⁵ An agreement to commit a particular crime means something only if the people making it are committed to that crime, and a partner who plans something else has agreed to something else. The deeper justification looks to the danger that a group adds. Conspiracy is aimed at genuine group criminality, where a second committed person encourages the first, shares the work, and makes it more likely that the plan will be carried through. When only one participant truly holds the criminal objective, those dangers are absent. The lone person's resolve is not beyond the law's reach, because offenses such as solicitation and attempt can still apply to it, but conspiracy is not the offense that fits.⁶

A plan to take a car shows how the count works. Larceny requires an intent to deprive the owner of the property permanently, so that intent is the criminal objective whose holders must be counted.

Change one fact and the result reverses.

The headcount of apparent agreement is three in both versions, and the outcome differs only because the number of participants who hold the intent to permanently deprive moves from two to one. The count follows what each participant intends, and how each looks to the others plays no part in it.

The same idea appears in legislation. The English Criminal Law Act 1977, § 1(2), provides that where an offense can be committed without knowledge of some circumstance, a person is not guilty of conspiracy to commit it unless that person and at least one other party to the agreement intend or know that the circumstance will exist.⁷ The traditional rule also draws criticism, because it leaves unreached a person whose own purpose is plainly criminal. The Model Penal Code's unilateral approach would allow conviction of the one party who does hold the necessary intent, and a later section returns to that contrast.⁸ The two-guilty-minds idea also explains the cases that follow. Whenever an apparent partner cannot or does not share the criminal purpose, because of pretense, incapacity, or legal identity with the other party, the question is whether a second guilty mind remains.