Bernick on Abolishing Conspiracy

Evan D. Bernick (Northern Illinois University - College of Law) has posted Abolish Conspiracy on SSRN. Here is the abstract:

Conspiracy seems as American as apple pie. Every state makes it a crime to agree to and act in furtherance of a plan to accomplish an unlawful goal. There are dozens of federal conspiracy statutes in the United States Code. The crime of conspiracy is the darling of prosecutors across the political spectrum. It has been wielded against poor Black teens and White TV moguls; anti-carceral and anti-abortion activists; rap stars and a former President. Its hold on U.S. criminal systems is firm.  

This Article seeks to break that hold. The crime of conspiracy promotes surveillance of and violence against poor people of color. It is a menace to freedom of expression, the right of a criminal defendant to confront an adverse witness, and the rule of law. Its purported social benefits remain unsubstantiated; its social costs have been understated when they have not been outright ignored. And nothing about conspiracy’s past or present provides grounds for confidence that it can be reformed.

This story begins in the Star Chamber and culminates in present-day Georgia. It is the story of nineteenth-century labor strikes and twenty-first-century drill rap; Emma Goldman, Angela Davis, and Young Thug; the Smith Act and the RICO Act; the Conspiracy Eight and Cop City. Analyzing these seemingly disparate phenomena, people, and policies, I uncover and build upon a tradition of conspiracy criticism which grew out of left social movements and only lately has fallen into neglect. Finding that these movement critiques of conspiracy have not only been vindicated but exceeded by experience, I re-up, update, and double down.