§ 29.01 Conspiracy: In General

§ 29.01 Conspiracy: In General1

[A] Common Law

A common law conspiracy is an agreement, express or implied, between two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.2 Formulated by the English Star Chamber in 1611,3 conspiracy was a common law misdemeanor. As discussed below,4 the offense is punished more severely today than it was at common law.

Conspiracy is a frequently prosecuted, but extremely controversial, crime.5 A few courts and more scholars have called for its reform or abolition.6 The nature of the controversies become evident in subsequent sections of this chapter. Three interrelated criticisms of the crime, however, may be emphasized here. First, it has been said that the "crime of conspiracy is so vague that it almost defies definition."7 The formlessness of the crime of conspiracy has served as a powerful tool of prosecutors to suppress inchoate conduct that they consider potentially dangerous or morally undesirable. Indeed, Judge Learned Hand once described the offense as the "darling of the modern prosecutor's nursery."8

Second, some see the offense as undesirable because of the highly inchoate nature of the offense: A person may be convicted of the common law version of the offense before she commits any act in perpetration of a substantive crime. Third, and closely related to the last point, the crime "is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent."9 Because of conspiracy law's emphasis on mens rea, and its consequent de-emphasis on conduct, critics maintain that there exists a greater than normal risk that "persons will be punished for what they say rather than for what they do, or [simply] for associating with others who are found culpable."10 Historically, conspiracy laws have been used to suppress controversial activity, such as strikes by workers and public dissent against governmental policies.11

[B] Model Penal Code

Section 5.03, subsection (1), of the Model Penal Code defines "conspiracy" as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

(b) agrees to aid such other person or persons in the planning

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