The Dubious Charms of Criminal Conspiracy

Document Type

News Article

Publication Date


Campus Unit

School of Law


It's time to rein in a tactic prosecutors have used against dissidents and to entrap suspects.

The word "conspiracy" conjures in most people's minds images of the illuminati, black United Nations helicopters and masons scheming to build our nation's capital. The actual law on criminal conspiracy is more mundane, widespread and damaging than far-fetched ready-for-Hollywood conceits. It operates every day in American courts to convict people on dubious evidentiary ground and legal rules, and to send innocent people to prison for the conduct of others. As we observe the growing ­bipartisan agreement to combat the scourge of overcriminalization, it is crucial for that budding coalition to focus on precisely this sort of criminal law as a serious culprit.

Conspiracy, which is understood to mean an agreement to commit a crime and an overt act in furtherance of that crime, has been widely criticized. U.S. Supreme Court Justice Robert Jackson observed that the law "is so vague that it almost defies definition." Judge Learned Hand pilloried it as the "darling of the modern prosecutor's nursery." More recently, Judge Frank Easterbrook lamented that "prosecutors seem to have conspiracy on their word processors as Count I; rare is the case omitting such a charge."

Indeed, a study performed by Professor Paul Marcus of College of Wil­liam and Mary Marshall-Wythe School of Law found that the primary reason prosecutors charge conspiracy is not out of concern for public safety, but to obtain evidentiary advantages and leverage in plea bargaining.

Conspiracy law has produced a long history of troubling convictions of labor unionists, socialists, communists and, today, Muslim anti-war dissidents. The concept came of age in the 19th century, when labor unions were viewed as illegal conspiracies. Considering a union's plan to boycott a company and distribute flyers, the Connecticut Supreme Court in 1887 affirmed a conspiracy conviction, offering, "The exercise of irresponsible power by men, like the taste of human blood by tigers, creates an unappeasable appetite for more."


During World War I, a federal appeals court upheld a conspiracy conviction of a small group of elderly U.S. citizens, of German ancestry, based on their conversations at one of the defendants' cobbler's shop. According to the court, the men used the shop " 'as a loafing place' to sit down and talk and 'meet the same old crowd.' " There was no evidence of any nefarious plan. During World War II, the Supreme Court upheld the notion that one could be guilty of conspiracy to advocate the overthrow of government through communistic speech and organization — no action and, in fact, no advocacy, had to have occurred.

Conspiracy also opens the door to entrapment. In one post-9/11 case, a man was charged with conspiracy to use a weapon of mass destruction. After dodging a government informant for months, the defendant finally acquiesced to the government's promise of $250,000, a BMW and a vacation to Puerto Rico and "agreed" to use a weapon. In sentencing the defendant, the judge commented that he was no threat and that "only the government could have made a terrorist out of" him.

The structure of conspiracy law helps to generate these troubling cases. That's why the National Association of Criminal Defense Lawyers recently approved a set of recommendations to reform what is a common but deeply problematic area of the criminal law. These recommendations are meant to ensure that only actual conspirators can be convicted; that procedural safeguards are put in place to guide pretrial procedures; that ­individual conspirators are found liable only for conduct they contribute to and not the conduct of others; that juries are given adequate instructions on conspiracy; that First Amendment rights to engage in unpopular speech and association are protected against conspiracy charges; and that individuals are not charged with multiple conspiracies when they only agreed to one.

Judges, lawmakers from across the political spectrum, legal scholars and even the U.S. Department of Justice have acknowledged the myriad problems with the American criminal justice system. From discriminatory policing tactics to excessive and ineffective surveillance strategies, overcriminalization and oversentencing, every aspect of this system is broken. Although the problems with conspiracy law predate this discussion, they are also a reflection of it.

From the allowance of prosecution when there is no mens rea, or criminal intent, required, to the vague and inchoate nature of the offense, conspiracy offers a case study in what so many have of late been articulating is their concern about overcriminalization in this country. Conspiracy law needs to be reformed now to prevent false convictions and restore the legitimacy of the criminal justice system.