CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 19, 2024

Ingram on Conspiracy

Andrew Ingram (University of Texas at Austin - Department of Philosophy) has posted Conspiracy, Really? (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
A heap of criminals is not a conspiracy anymore than a pile of bricks is a house, yet every day in court, prosecutors elevate the stakes in prosecutions and plea bargaining by charging defendants who commit crimes in groups with conspiracy. The crime may be as disorganized as the impulsive decision to rob a convenience store or a spur of the moment choice to shoplift from Target, but if the prosecutor can show that more than one person participated in the crime, she can add a conspiracy charge. The premise of the article is that this is wrong and that conspiracy charges should be reserved for cases where there is an agreement to commit a crime followed by material planning and plotting to carry out the crime. Only in these cases do the defendants’ actions pose a special danger and deserve to be called a conspiracy.

This article diagnoses a problem with conspiracy law and proposes a solution. Conspiracy in the states and at the federal level is too broad and easily overused to cover petty conduct that is undeserving of being charged as conspiracy. Whenever two or more people commit a crime together, the prosecutor can easily tack on a conspiracy charge by claiming that they acted with a “mutual understanding,” and therefore met the critical “agreement” element of the crime.

My solution—which I have reason to think will be acceptable to both conspiracy’s friends and foes—is to add a substantial planning and organization requirement to the definition of conspiracy. This could be accomplished judicially, by reinterpreting the extant agreement element, or by legislation. The article shows various factors that can be used to instruct juries on whether the requirement has been met. Courts can ask whether the alleged conspiracy featured a pattern of criminal activity, a division of labor, hierarchy, and institutionalization; they can probe whether there was overt planning (a meeting or Slack channel), a lapse in time between the alleged agreement and the execution of the crime, and whether the target of the conspiracy was a sufficiently complicated crime to require planning and organization to execute it.

The problem solved is both a moral and a doctrinal one. Morally, it violates retributivist principles to multiply charges and punishments without multiplying wrongs. Moreover, conspiracy carries with it the Pinkerton vicarious liability principle, which can quickly escalate charges and prison sentences based on wrongdoing by fellow conspirators that the defendant did not consciously anticipate or intend.

Doctrinally, conspiracy law as it exists is a sloppy mess. Whether or not conspiracy is charged depends upon the whim of prosecutors rather than the facts, so long as more than one person was involved in the crime. In the course of the article, I argue that doctrinal scholarship has an important role to play in the effort for criminal justice reform because it can appeal to those in power who do not share the moral beliefs of criminal justice reformers or do not see how race and mass incarceration are intertwined.

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