Model Penal Code Approach

Model Penal Code Approach

The Model Penal Code does not choose between the common-law rule and the overt-act statutes. Section 5.03(5) assigns each to a different class of object crime, and it reads: "No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired."¹ The sentence is built as a rule followed by an exception. The rule is that a conspiracy conviction requires an overt act. The exception removes that requirement when the object of the agreement is a felony of the first or second degree, and in that class of cases the Code returns to the common-law position that the act of agreeing is itself the actus reus.²

Because the exception turns on the grade of the object offense, grade is the first thing to identify in any problem governed by the Code. Murder is the standard example of a serious object, since it is a first- or second-degree felony, and an agreement to commit it supports conviction without any further act.³ Every other object, meaning third-degree felonies and misdemeanors, falls under the rule, so the prosecution must allege and prove an overt act done by the defendant or by someone the defendant conspired with. The next two sections take those two situations in turn.

The grade of the object works as a dial that sets how early the law should step in. For grave offenses the benefit of stopping the plan before anything happens is larger, and the commentary behind the exception states the point in these words: "the importance of preventive intervention is pro tanto greater than in dealing with less serious offenses."⁴ The phrase pro tanto means "to that extent," so the more serious the crime, the more the interest in early intervention weighs. The agreement can carry that weight because it is a concrete and unambiguous act, which leaves little risk that innocent or equivocal conduct will be mistaken for criminal conduct.⁵ For lesser objects the balance shifts, and requiring an outward act reflects a legislative judgment that a bare agreement to commit a minor offense does not by itself warrant prosecution.⁶

The felony exception is a feature of the Model Penal Code itself, and it has not been generally adopted in recent state codes, including codes that follow the Code in other respects.⁷ A student who sees a murder conspiracy and reasons that no overt act is needed has imported the Code's exception into a jurisdiction that may never have enacted it. The mistake to avoid is assuming the felony exception applies in every overt-act state. Rely on the exception only when the facts name the Model Penal Code or a statute modeled on § 5.03(5). Otherwise, apply the jurisdiction's own overt-act requirement even when the object is a grave felony.

Serious Felonies: No Overt Act

The exception in § 5.03(5) governs the gravest objects. The section imposes its overt-act requirement on every conspiracy to commit a crime "other than a felony of the first or second degree."⁹ When the object falls in that excluded class, the Code adopts the common-law position that the act of agreeing is itself the actus reus, the conduct element of the offense, so the prosecution must prove no act beyond the agreement.¹⁰ Murder is the clearest member of the group, since it is a first- or second-degree felony.¹¹ The exemption has a precise edge. It stops at the second degree and does not reach felonies as a class, so third-degree felonies and misdemeanors remain on the other side of the line, a contrast the next section develops.

One illustration of the rule involves two brothers, Lonny and John, who agree to murder Judge Smith. Because murder is a first- or second-degree felony, the agreement is enough to convict both brothers under the Code, and no overt act is required.¹² An act did occur: Lonny contacted a third person, Emma, and offered to pay for the judge's personal items. That contact would satisfy an overt-act requirement in a jurisdiction that imposed one, so the brothers could be convicted either way.¹³ Where the exemption applies, then, an act that happens to occur is surplus. The agreement carries the conviction, and the prosecution need not allege or prove the contact with Emma.

The Code's reasons for accepting the agreement alone answer two different worries. The first worry is that innocent conduct will be mistaken for criminal conduct. The danger an act requirement usually guards against is that equivocal behavior, such as renting a van, will be read as preparation for a crime when it was nothing of the kind. An agreement has no comparable range of meanings. It is concrete and unambiguous, and a person's purpose must be relatively firm before the commitment involved in agreeing to a crime is taken on.¹⁴ The second worry is whether the agreement itself makes the crime more likely. It does, because combining wills with another person matters psychologically, since it crosses a clear threshold and arouses expectations in each party about the other, and practically, since it increases the likelihood that the offense will be committed.¹⁵

A third reason ties the exception to accomplice liability. If the agreement was to aid another in committing a crime, or otherwise encouraged its commission, the parties would be complicit in the offense had it been carried out.¹⁶ It would be anomalous to hold that conduct sufficient for guilt when something else is done by someone else becomes insufficient merely because the crime was never consummated.¹⁷ These reasons apply to any object, but the Code gives them controlling weight for grave offenses because the cost of waiting is highest there. A conspiracy to murder that could not be reached until some outward act occurred would leave the law standing aside while the plan matured, and conspiracy liability exists to permit intervention before the harm. For lesser objects the usual legislative judgment, that a bare agreement does not by itself warrant prosecution, carries more force, and the act requirement returns.¹⁸

Because the exemption follows the grade of the object offense and not the label "felony," a stem that says only that the parties agreed to commit a felony does not settle the question. The grade must be identified, and the common error is treating every felony as exempt.

Other states have also dispensed with the act for their most serious objects, New Jersey among them.¹⁹ The Code's exception, however, has not been generally adopted in recent codes, even those that follow the Code in other respects, so rely on it when the facts invoke the Code or a statute modeled on § 5.03(5).²⁰

Lesser Offenses: Overt Act Required

Everything outside the exception for first- and second-degree felonies falls under the Code's default rule. When the object of the agreement is a felony of the third degree or a misdemeanor, § 5.03(5) bars a conviction for conspiracy unless an overt act in pursuance of the conspiracy is alleged and proved.²² In structure this matches the overt-act statutes described earlier in this chapter. The parties' agreement is necessary, but the offense is not complete until someone takes a step that carries the plan beyond words.²³ The Code makes that structure turn on the grade of the object, so the first move on any Code problem is to identify the grade, and for the lesser grades the act is an element the prosecution must establish.

Two features of the statutory text shape how the requirement operates. The first is that the act must be "alleged and proved," so it has to appear in the charge as well as in the evidence, which makes the requirement a pleading obligation as well as a trial burden.²⁴ The second is that the act may be done "by him or by a person with whom he conspired."²⁵ That wording lets the act come from any member of the agreement, which is the attribution rule covered earlier. Conspirators act as agents for one another, so a step taken by one partner in pursuit of the common plan is a step taken by all.²⁶

The content of the act is the same as under an ordinary overt-act statute, so the earlier discussion of what counts carries over without change. Virtually any act in pursuance of the plan qualifies, including conduct that is lawful and innocent when viewed alone, such as making a phone call or buying equipment, and it need not come anywhere near an attempt.²⁷ Section 5.03(5) asks only for an overt act in pursuance of the conspiracy and says nothing about a substantial step, so a modest step that advances the plan is enough.²⁸

The reason the Code demands an act at these grades follows from how the grade works as a dial. For a minor object, the gain from stopping a plan before anything happens is small. The risk of convicting on talk that was never serious stays the same, because people say "let's do it" in anger or in jest. An overt act answers that risk by showing that the agreement was real enough for someone to put it to work. The requirement reflects a legislative judgment that a bare agreement to commit a minor offense does not by itself warrant prosecution.²⁹

The most common error on this point is treating a well-proved agreement as enough. A recording, a confession, a signed plan, and a cooperating witness all prove that the parties agreed, and agreement supplies only one half of the offense when the object is a lesser one. The prosecution still needs an act, and the grade of the object decides whether it does, so no amount of proof of the agreement changes the answer.