Criminal Conspiracy

• Author: Catherine Hancock
• Pages: 708-709

Page 708

The modern crime of conspiracy punishes the act of agreement with another to do something unlawful, and the vagueness and breadth of its scope are the legacies of seventeenth-century English judges who invented its COMMON LAW progenitor. Constitutional DOCTRINE has not shaped the boundaries of this crime; it is, indeed, the other way around. Most paradoxically, the crime has served both as a tool for the suppression of FIRST AMENDMENT freedoms and as a weapon for the defense of rights to racial equality. Like all political issues, the definition of "unlawful" conspiracies fluctuates with the moral hemlines of history.

In the eighteenth century, the English crime came to encompass the agreement to do any "immoral" acts, even noncriminal ones. This became an element of American conspiracy law as well, and one of its early critics was Chief Justice LEMUEL SHAW of the Massachusetts Supreme Judicial Court. In Commonwealth v. Hunt (1842) Shaw put an end to conspiracy prosecutions of laborers who organized to seek such noncriminal goals as higher wages or a CLOSED SHOP. Criminal goals, of course, remained punishable, and trade union conspiracy prosecutions died out in the 1890s only because they were replaced by judicial resort to the labor INJUNCTION. Statutes prohibiting noncriminal conspiracies remained on the books, but their demise was hastened by state court decisions holding them void for VAGUENESS or violative of the EX POST FACTO clause.

Federal conspiracy prosecutions commenced in 1867 with the enactment of a Federal Criminal Code provision prohibiting conspiracies to defraud the United States. The rise of organized crime during Prohibition provided the impetus for the expansion of federal conspiracy offenses; the RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT of 1970 is an exemplar of their sweeping scope. In 1925, Judge LEARNED HAND labeled conspiracy "the darling in the prosecutor's nursery," because of the progovernment features that mark conspiracy trials. HEARSAY statements of co-conspirators are admissible in evidence, and conspiratorial membership may be inferred solely from conduct showing a desire to further the conspiracy's goals. In Pinkerton v. United States (1946) the Court held conspirators liable for every crime committed by co-conspirators, including those of participants whose existence was unknown but foreseeable. The DOUBLE JEOPARDY clause does not bar separate, consecutive sentences...