Section 2.3

Fundamentals of Criminal Law by Adam J. McKee

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Under common law, conspiracy consisted of an agreement by two or more persons to accomplish a criminal act or to use unlawful means to accomplish a noncriminal purpose. The essence of the offense was the unlawful agreement between the parties—no overt act was required.  In other words, the common law crime of conspiracy was complete with the agreement to commit a crime. Most modern statutes require an affirmative act, however tenuous, toward carrying out the conspiracy. An important purpose of this is that the law of conspiracy permits law enforcement to arrest individuals at an early stage of criminal planning.  

It is worth noting that under the ancient common law, the conspiracy did not merge into the criminal act. Today, this remains the rule; conspiracy does not merge into the attempted or completed offense that is the object of the conspiracy. As a result, an individual may be convicted of both the offense that is the object of the conspiracy and of a conspiracy. A defendant may be held liable for both murder and for a conspiracy to commit murder.  

The point of criminalizing conspiracy is that the actions of people working together increase the chances of successfully completing the crime. In addition, people working together can successfully complete crimes of greater complexity (and possible social harm) than any of the individuals acting alone.  Allowing arrest for conspiracy also serves to safeguard society by arresting participants before they commit a dangerous crime.  Another commonly cited reason that conspiracies are so dangerous to society is the idea that group pressure makes it unlikely that the conspirators will be dissuaded from carrying out the agreed upon crime.

Under Arkansas law, for example, a person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:

He agrees with another person(s) that one or more of them will engage in conduct that constitutes a criminal offense, or that he will aid in the planning or commission of that criminal offense, and he or another person with whom he conspired does any overt act in pursuance of the conspiracy.

If a person knows (or could reasonably expect) that one with whom he conspires has himself conspired or will conspire with another to commit the same offense, he shall be deemed to have conspired with the other, whether or not he knows the other’s identity.  If a person conspires to commit a number of criminal offenses, he commits only one conspiracy if the multiple offenses are the object of the same agreement or continuous conspiratorial relationship.

Conspiracy is classified in the same manner as an attempt, with the exception that no provision is made for Class C misdemeanors.  It is an affirmative defense to a prosecution for conspiracy to commit an offense that the defendant does any of the following: Thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, or terminated his participation in the conspiracy and either gave timely warning to law enforcement, or otherwise made a substantial effort to prevent the commission of the offense under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.  

The Pinkerton Rule

In Pinkerton, the USSC determined that it was constitutionally acceptable to hold members of a conspiracy liable for all offenses committed in furtherance of the conspiracy.

Pinkerton v. United States, 328 U.S. 640 (1946)

Modification History

File Created:  07/12/2018

Last Modified:  05/03/2021

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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