The Common-Law Rule

The Common-Law Rule

A conspirator who loses nerve after the agreement is made finds that the common law offers no escape from the conspiracy charge itself. The rule is that withdrawal is not a defense to the crime of conspiracy. The offense is complete once the parties form the unlawful agreement and, in jurisdictions that require an overt act (a concrete step toward carrying out the plan, taken by any one of the conspirators), once that step has been taken.¹ Withdrawal here means a member's own later decision to leave the plan, and the rule treats that decision as irrelevant to whether the crime has already been committed. Where an overt act is required, the offense is not finished until the act occurs, so the timing of an exit relative to that act becomes important, and the next section takes up that wrinkle.

The reasoning behind the rule runs in a fixed order. The wrong that conspiracy punishes is the agreement, so the crime is finished at the moment the agreement exists, together with the overt act where the jurisdiction demands one. A finished offense cannot be uncommitted by what happens afterward, and the law therefore treats conduct after the offense as bearing on the sentence rather than on guilt.² Courts tend to reject an abandonment defense on exactly this ground, since the crime of conspiracy has already been completed by the time the defendant changes course.³ A defendant who claims to have withdrawn thus concedes that the offense occurred and asks the court to excuse it after the fact, and the common law supplies no such excuse.

In People v. Sconce a California court applied this logic to a plan that never came close to success. Sconce offered Bob Garcia $10,000 to have Elie Estephan killed, Garcia agreed and recruited an ex-convict named Dutton, and the two men drove to Estephan's house to look over the area. About three weeks after his first conversation with Garcia, Sconce called the plan off and told Garcia to forget it.⁴ The trial court set aside the conspiracy charge because it found that Sconce had effectively withdrawn. The Court of Appeal concluded otherwise: once an overt act has been committed, a later withdrawal does not relate back to the formation of the unlawful combination, and it precludes only liability for later acts of the conspirators.⁵ The court added that it was bound by this settled rule and that any change belonged to the Legislature.⁶

The rule also tracks the independent danger that conspiracy poses. In Callanan v. United States the Supreme Court explained that a combination in crime makes the commission of other crimes more likely and makes it less likely that the individuals involved will depart from their path of criminality.⁷ That danger comes into being when the group forms, so one member's private change of heart removes neither the group nor its plan. The Court relied on the same understanding in United States v. Jimenez Recio, which held that a conspiracy does not end automatically when police frustrate its objective, because so long as the conspirators have neither abandoned nor withdrawn, the special conspiracy dangers and the essence of the conspiracy, the agreement itself, remain.⁸

Conspiracy is also a separate offense from the crime it targets, as State v. Peterson recognized, so a change of heart about the target crime does not touch an offense that was complete before that crime was ever attempted.⁹ A rule allowing escape by quitting would add an incentive problem as well. A member who sensed that detection was near could claim a last-minute exit, and guilt for a completed offense would then turn on an after-the-fact account of the defendant's private state of mind.

The standard illustration shows how the rule operates on a participant who does nothing at all after the agreement. Lisa agrees with Mark and Jane to commit murder, burglary, and theft, and she obtains the murder weapon for the job; on the night of the crime she simply does not show up.¹⁰ At common law she is guilty of conspiracy, because she crossed the threshold of criminality when the agreement was made and cannot go back across it.¹¹ Her absence is not even an effective exit for purposes of later liability, a separate question taken up below, but for the conspiracy charge that question never arises, since a flawless exit would not have helped her.

That contrast marks the Model Penal Code's departure from the common law, which makes it an affirmative defense that the actor thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.¹² The common-law baseline is harsh, as A's morning-after call and Sconce's three-week reversal both show, and the Code's defense is built to soften it only for the participant who does more than quit.

The rule is easy to over-read. Withdrawal is no defense to the conspiracy charge itself, yet an effective withdrawal still does real work against other consequences, because it terminates liability for crimes that former co-conspirators commit afterward.¹³ The two questions are different. One asks whether the conspiracy offense was committed, and the answer is yes once the agreement and any required overt act exist. The other asks how far the defendant answers for what the group does next, and the answer depends on whether the defendant effectively left. Later sections take up that second question, so the claim here is the narrow one: no later conduct erases a conspiracy that was already formed.