The Use of the Unilateral Approach to Conspiracy Convictions
The law treats the act of agreeing to commit a crime as “a distinct evil” from the crime itself. This means that a defendant can be charged with both conspiracy to commit a crime and the crime that was completed. This distinction can be illustrated by comparing conspiracy to another inchoate crime, attempt. When a person attempts to commit a crime and then successfully completes that crime, the two crimes “merge” and the defendant can only be charged with the completed crime. Merger does not occur in conspiracy cases. For example, let’s assume that Kyle and Sue decide to murder Charlie. They conspire ahead of time to ambush Charlie in a parking lot after work and stab him to death. They are guilty of conspiracy to commit murder whether they complete the crime or not. Conversely, if their attempt was a spur-of-the-moment decision and not a product of prior deliberation, and Charlie survives the assault, they would be guilty of attempted murder but not conspiracy to commit murder. If their attempt succeeds in the latter scenario, they would be guilty of murder but not attempted murder.
The basic definition is straightforward enough. Legitimate protest goes not to the definition of the crime, but, as will be seen, to its application and to the evidence necessary to prove the existence of the agreement. Nevertheless, the bare definition raises more questions than it answers, both on a theoretical level and a practical level: What is an agreement? Can someone be guilty of conspiracy if one of the conspirators is legally unable to enter into an agreement?
While the move may be heralded as a step toward more effective law enforcement, it is not justified because society's interest in punishing such conduct is already met by the charges of solicitation and attempt.
Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179 (1975)
Wechsler, Jones, & Korn, The Treatment of Inchoate Crimes in the Mlodel Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy (pt. 2), 61 COLUM. L. REv. 957, 965 (1961)
Marcus, Criminal Conspiracy: The State of Mind Crime-Intent, Proving Intent AntiFederal Intent 1976 U. ILL. L.F. 627, 628-29.