Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal. At common law, conspiracy requires only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law and the law of several states, an overt act in furtherance of the conspiracy is also necessary for a conviction. Often, proving conspiracy is much easier than proving a completed or attempted crime. As such, conspiracy has become a favorite tool amongst prosecutors, enabling them to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime. Conspiracy is also a useful tool in prosecuting large-scale criminal enterprises. Prosecutors can charge lower-level participants and use the prospect of conspiratorial liability to get them to “flip” on those higher-up in the organization.
As you read the following cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends. 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?
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