§ 29.03 Punishing Conspiracies: How Much?

§ 29.03 Punishing Conspiracies: How Much?

[A] In General

[1] Common Law and Non-Model Penal Code Statutes

At common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor.²⁰ Modern conspiracy statutes vary widely among the states. However, typically, the sanction for conspiracy is graded in relationship to the contemplated crime. Most states punish conspiracies to commit felonies as felonies, and conspiracies to commit misdemeanors as misdemeanors.²¹ As well, a conspiracy to commit a felony is usually punished less severely than the target felony itself.²²

[2] Model Penal Code

As with other inchoate offenses, the Model Penal Code diverges from the common law by grading a conspiracy to commit any crime other than a felony of the first degree at the same level as the object of the conspiracy.²³ If a conspiracy has multiple objectives, e.g., to rape and to steal,²⁴ the conspiracy is graded on the basis of the more or most serious target offense. The Code takes the subjectivist view²⁵ that people who agree to commit crimes but are arrested before consummation are as dangerous as those who commit the target offenses.

[B] Punishment When the Target Offense Is Committed

[1] Common Law

Unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy; they are treated as separate and distinct offenses.²⁶ For example, if D1 and D2 conspire to rob V, and later attempt to commit or successfully consummate the robbery, they may be convicted and punished for both the conspiracy and the robbery or its attempt.²⁷

The non-merger doctrine is unsupportable if the main purpose of conspiracy law is to provide the police with an opportunity to prevent commission of the target offense. Once the object of the conspiracy is committed or attempted, this purpose of conspiracy law evaporates. Similarly, if the focus of the offense is on the dangerousness of an individual conspirator, her punishment should be calibrated to the crime that she threatened to commit; punishing her for both crimes is duplicative. The non-merger rule only makes sense if one focuses on the alternative rationale of conspiracy law, i.e., to attack the special dangers thought to inhere in conspiratorial groupings.²⁸

[2] Model Penal Code

The Model Penal Code diverges from the common law. It provides that a person may not be convicted and punished for both conspiracy and the object of the...