Conspiracy

Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal: at common law, only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law, and the laws of most states an act in furtherance is needed to seal the conspiracy. However, that act can usually be completed by any of the conspirators, and often requires far less than the substantial steps necessary to constitute an attempt. In some jurisdictions a conspiracy can be charged regardless of whether the object crime was committed or even attempted.

Thus, proving conspiracy is much easier than proving a completed or even an attempted crime, and so conspiracy has become a favorite tool of prosecutors to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime.

In addition, conspiracy is, like complicity, a theory by which one defendant is made liable for the conduct of another. We say that a defendant is responsible for some of the crimes committed by his co-conspirators under an agency theory: By agreeing with others to commit crimes, the defendant has made those others his agents and is responsible for at least some of their crimes under a theory of vicarious responsibility.

As you read these cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends under each theory. What is the mens rea for the crime of conspiracy itself? What mens rea is necessary for the subsequent crimes committed in furtherance of the conspiracy? How do the various formulations of conspiracy liability interact with the justifications of punishment—retribution, deterrence, incapacitation, and rehabilitation?