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The Use of the Unilateral Approach to Conspiracy Convictions

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An approach to the crime of conspiracy that does not require actual agreement between two or more persons; under the unilateral approach, when an individual agrees with an undercover agent who has no intent to commit the crime, there can be nevertheless be a conviction for conspiracy.

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The crime of “conspiracy” is simple enough in theory. It’s a crime to plan with other people to engage in criminal activity. The details of the law, however, can be complex and nuanced. When does “just talk” turn into a concrete enough plan to become punishable? Are there free speech implications of punishing “talk”? How far does a plot have to go before it morphs into a “conspiracy”? These are some of the many complex questions that permeate this area of law. Punishing conspiracy is designed to deter potential criminals from becoming organized and to ensure that all those who had active parts in criminal activity are held accountable. Conspiracy, like attempt and criminal solicitation, is an inchoate crime. This means that the criminal result need not have occurred for liability to attach. If two people, for example plan the joint robbery of a store, they can be liable for conspiracy even if they do not complete the robbery. The substantive crime is robbery and conspiracy to commit robbery is inchoate because it has not been completed

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.

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Throughout this century, judges, practicing attorneys, and scholars have had a love-hate affair with the concept of a crime of conspiracy. Few criminal law doctrines have generated as much analysis. One need only look to the wealth of law review articles 3 and reported cases discussing conspiracy doctrine to realize the impact of conspiracy law on American jurisprudence. 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?

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In the end, when one of two conspirators has no intention of pursuing the criminal objective, the rationale for increased punishment is absent. Therefore, although this latest extension of the law appears logical when viewed alongside its judicial precursors, it actually defies its own reason

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.

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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.

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