§ 29.02 Punishing Conspiracies: Why?

§ 29.02 Punishing Conspiracies: Why?

[A] "Conspiracy" as an Inchoate Offense: Preventive Law Enforcement

As with other inchoate offenses, criminal conspiracy laws provide law enforcement agents with a basis for arresting persons whom they believe intend to commit other criminal offenses in the future.

Conspiracy laws allow police intervention at a much earlier point than is permitted under attempt law. As is explained below,¹² a common law conspiracy is formed the moment two or more persons agree that at least one of them will later commit an unlawful act. At common law, no conduct in furtherance of the conspiracy was required. Even when an overt act in furtherance of the conspiracy is statutorily required, as is often the case now, the act may be trivial and wholly preparatory to the commission of the target offense. Consequently, advocates of conspiracy laws believe that the offense unfetters police and fills in gaps in the "unrealistic" law of criminal attempts.

It is said that an agreement to commit a criminal act is concrete and unambiguous evidence of the actors' dangerousness and the firmness of their criminal intentions,¹³ thus justifying early intervention. However, the agreement that serves as "concrete" and "unambiguous" evidence of the defendants' dangerousness and culpability is often proved inferentially, increasing the risk of false positives. Moreover, even if an agreement is conclusively proved to exist, the potential temporal remoteness of the agreement to the target offense increases the likelihood that some conspirators who might later renounce their intentions will be punished.

[B] Special Dangers of Group Criminality

The combination that constitutes a conspiracy is said to represent a "distinct evil."¹⁴ According to advocates of conspiracy laws, two (or more) people united to commit a crime are more dangerous than one person, or even two people independently, planning to commit the same offense: "[T]he strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer."¹⁵

The purported dangers inherent in collective criminal action are many. First, out of fear of co-conspirators, loyalty to them, or enhanced morale arising from the collective effort, a party to a conspiracy is less likely to abandon her criminal plans than if she were acting alone.¹⁶ Other special dangers are said to inhere in conspiracies: collectivism promotes efficiency through division of...