Friday, April 13, 2012
Steven R. Morrison (University of North Dakota School of Law) has posted Requiring Dangerousness: An Idea Whose Time Has Come (Again) on SSRN. Here is the abstract:
It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil,” which justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Professor Neal Kumar Katyal’s excellent defense of conspiracy law rests on this assumption, but Professor Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true.
This Article rejects the distinct evil assumption by showing how Katyal’s and Goldstein’s respective frames lead to their divergent conclusions. It argues that to satisfy both commentators’ legitimate concerns, conspiracies must be shown to be dangerous before criminal liability can attach.
This requirement was included in the first Model Penal Code in 1962 and appears in statutes in Arkansas, Colorado, New Jersey, and Pennsylvania. Despite this initial legislative interest, attorneys in these states have largely never heard of these statutes. These laws do, however, hold out the promise of addressing conspiracy law’s legitimate concerns and upholding venerable criminal law norms.
This Article challenges the distinct evil assumption as a product of the rise of labor unions and corporations in the middle to late 19th century. It then discusses how the Model Penal Code and state legislatures have approached dangerousness. It then turns to why attorneys in these states may not be aware of these legislative moves, and also how these statutes may be useful. Finally, it prescribes four moves we should take to reform conspiracy law immediately and in the longer term.