The Use of the Unilateral Approach to Conspiracy Convictions
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.
These discussions, along with the widespread assumption that prosecutors utilize conspiracy as an effective tool against serious crime, I make the law of conspiracy most controversial. This controversy has thrust the law of conspiracy into the debate on the role and purposes of our criminal justice system (Alschuler, 1975). A careful analysis of the conspiracy offense requires an orientation in both theory and practice. Consequently, this article includes both a traditional critique of criminal conspiracy and an analysis of the questions and answers that prosecutors and defense counsel raise. Criminal conspiracy is an agreement between two or more persons formed for the purpose of committing a crime (Wechsler, Jones, & Korn, 1961). 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.