A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its completion. Conspiracy is an inchoate crime because it does not require that the illegal act actually have been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.
Elements of a Conspiracy
Conspiracy first requires a showing that two or more people were in agreement to commit a crime. This agreement does not have to be formal or in writing. All that is required is that the parties had a mutual understanding to undertake an unlawful plan. Second, all conspirators must have the specific intent to commit the objective of the conspiracy. This means that someone who is entirely unaware that they are participating in a crime cannot be charged with conspiracy. For instance, if two sisters agree to rob a bank and ask their brother to drive them to the bank without informing him of their intent to commit a crime, he cannot be charged with conspiring in the robbery. This specific intent requirement does not require that each individual knows all the details of the crime or all of the members of the conspiracy. As long as an individual understands that the act being planned is a criminal one and proceeds nonetheless, they can be charged with conspiracy.
1Two or more people agreed to commit a crime
2All conspirators had the specific intent to commit the crime
3At least one of the conspirators committed an overt act (most states)
Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action, some courts have held that silence can be an overt act where it is intentional, planned, and done in furtherance of the conspiracy.
Defenses to Conspiracy
Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defense of abandonment or withdrawal. In order to do so, a defendant must show that they affirmatively communicated their withdrawal to their co-conspirators and took some positive action to withdraw from the conspiracy. Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly, the defendant must have definitively cut ties with their fellow co-conspirators. If they continue to communicate with co-conspirators or assist them in any way, this may prevent the defendant from raising the defense of withdrawal.
Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent and that they would not otherwise have become involved in the conspiracy. Specifically, the defendant must show that (1) the idea for the conspiracy came from an officer and not the defendant, (2) the defendant was persuaded to participate in the conspiracy by an officer, and (3) before being persuaded, the defendant had no intention of committing the crime.
Conspirators may also be convicted for the crimes of co-conspirators. For example, Willa, Wesley, and Walter conspire to each rob a jewelry store on the same day and divide the stolen goods equally. As he is robbing the store, Walter shoots the store owner. Willa and Wesley may also be held responsible for shooting the store owner, even though they were at other stores at the time, since Walter’s act fell within the scope of the conspiracy.
Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or state law depends on specific circumstances. Often, the federal government will prosecute persons allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a federal crime, this too may lead to federal, rather than state, prosecution.
Potential punishments for those convicted of conspiracy vary. Depending on the relevant statute, a punishment for conspiracy might be just as severe as a punishment for the target crime. Federal conspiracy may be punishable by up to five years in prison. If the target crime was completed, a person can be convicted and punished for both the conspiracy and the target crime separately in many jurisdictions.