Introduction

Backing Out of a Conspiracy

Introduction

Conspiracy punishes the agreement itself. Once two or more people have reached a shared understanding to commit a crime, and in jurisdictions that demand it one of them has taken some step toward carrying it out, the offense is complete even though the planned crime has not yet happened.¹ That timing creates a puzzle for the participant who loses nerve afterward, because the wrongdoing the law punishes may already be finished by the time the second thoughts arrive. The question here is whether a change of heart can undo a conspiracy that already exists, and, if it cannot, what a change of heart is still good for.

Two authorities answer that question, and they come in a fixed order. The common-law rule is that a defendant cannot rely on withdrawal as a defense to the crime of conspiracy.² The reasoning follows from what the offense is: the wrong lies in the agreement, a completed offense cannot be uncommitted by later conduct, and a group that has bound itself to a plan is more dangerous than any single person whether or not one member later has doubts.³ The Model Penal Code departs from that rule in one narrow respect. Section 5.03(6) makes it an affirmative defense, meaning a defense that applies even though the prosecution has proved every element, that the actor, after conspiring, thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.⁴ The requirements of that defense are taken up one at a time later.

Three vocabulary words recur throughout and are easy to blur together, so it helps to fix them now. Abandonment describes the whole group dropping the plan, which is generally found when none of the conspirators is doing anything to advance its objectives.⁵ Withdrawal describes one member leaving while the others carry on; it is a partial remedy, because it does not erase the conspiracy charge but can cut off responsibility for what the remaining members do afterward.⁶ Renunciation is the Code's complete defense, and it and the Code's separate rules on when a conspiracy ends both sit in the same section.⁷ Each term gets its own treatment below, beginning with the common-law rule and the reason it refuses to let anyone back out of a conspiracy that has already been formed.