Why Merger Was Abandoned

Why Merger Was Abandoned

The traditional rule gave way because the reason behind it gave way, and a footnote in People v. Carter lays out the sequence compactly. At early common law every conspiracy was a misdemeanor, and a misdemeanor conspiracy merged into any felony committed in furtherance of it, because felony trials and misdemeanor trials followed different procedures. Under that doctrine only the felony was punishable.¹ The court then recorded what followed once those procedural differences no longer existed: the doctrine has been largely abrogated.² Merger was a device for handling a mismatch between two classes of offense, and the mismatch lay in procedure. A device built for one problem has no claim to survive after the problem is gone, which is why the loss of the procedural differences carried the rule down with it.³

The same footnote shows that abandonment can arrive by more than one route. It reports a general abrogation of merger in the decisions, and it separately records that Michigan abolished the doctrine by statute.⁴ A statute is the more decisive of the two routes, because it ends the doctrine for every case at once and leaves no room to argue that the old reason still holds on particular facts. Where only the decisions have moved, a defendant may still try to invoke merger, and the question becomes whether the jurisdiction has in fact abandoned it.

Keeping merger after its procedural reason lapsed would have produced a result that no one could defend on its own terms. Under the traditional rule, conspirators whose plan fell short could be convicted of conspiracy, but conspirators whose plan succeeded could not be convicted of it separately, because completing the felony absorbed the agreement.⁵ Success would have erased separate liability for the agreement. The only thing that ever explained that outcome was the felony/misdemeanor procedural mismatch, and once the mismatch disappeared the outcome had nothing left to rest on.

The two scenes differ in a single respect, the legal setting. The agreement and the completed felony are identical, yet merger is gone in the first scene and survives in the second, and the felony/misdemeanor mismatch accounts for the difference. Students lose points on modern facts when they treat completion of the object crime as a defense to the conspiracy count, because the rule that once made completion matter has been abandoned.⁸

The resulting position is the one the next section develops: the conspiracy and the crime that was its object are separate and distinct offenses.⁹ One caution about vocabulary belongs here. The Michigan court noted that the modern use of the word merger refers to necessarily included offenses in the double jeopardy context.¹⁰ That is a different doctrine from the common-law rule described above, and it is taken up later in this chapter with lesser included offenses.