The law of conspiracy

Note: This is my eleventh blog post in a multi-part series on conspiracy theories

What separates a legitimate claim of “conspiracy” from a fringe or far-fetched “conspiracy theory” (like the so-called “plandemic”) or a dangerous alternate reality “conspiracy myth” (like the Weimar era stab-in-the-back legend)? After all, conspiracies can be real. In fact, conspiracies occur all the time. Consider, for example, the actress Felicity Huffman and the infamous 2019 College Admissions Scandal. Although, legally speaking, Huffman, along with dozens of other wealthy parents, was charged with mail fraud and honest services fraud, one could argue that she also committed the crime of conspiracy when she paid a third party to arrange for a ringer to take her daughter’s college admissions entrance examination. (By the way, Huffman’s slap-in-the-wrist ten-day jail sentence was way too lenient in my opinion.)

Given the fact that conspiracies are, in fact, quite ubiquitous–and given that my area of expertise is law–, why don’t we try to look at conspiracy theories through the eyes of the common law and the modern crime of conspiracy? Specifically, instead of asking whether a given conspiracy theory is simple or falsifiable or instead of trying to measure the level of orthodoxy of a given discourse, we should be asking the following series of practical or legal-inspired questions:

  • Is there an agreement between two or more conspirators?
  • Who are they and when did they reach this agreement?
  • And is their agreement an illicit or immoral one?

At common law, the crime of conspiracy required an illicit agreement between two or more persons, i.e. an agreement to commit a crime or a civil offense, such as murder or fraud.[1] Under modern conspiracy law, by contrast, an illegal conspiracy requires proof of an illegal agreement as well as an overt act. By way of specific example, consider the general federal conspiracy statute, which is codified at 18 U.S.C. § 371,[2] which defines a conspiracy as follows:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

In other words, the conspirators must not only intend to achieve the goal of the conspiracy; one or more of the conspirators must also commit an “overt act” in furtherance of the conspiracy.[3] Also, under both the common law and modern conspiracy law, a conspiracy is considered an “inchoate crime”; that is, a conspiracy need not be successful in order to constitute a crime. Why? Because it is the illicit agreement itself that it is illegal, regardless of whether the conspiracy is successfully carried out beyond the commission of an overt act in furtherance of the conspiracy. This special treatment is significant for several reasons; I will explain why in my next post.

Criminal Law Quick Tip: Conspirator v. Accomplice | UWorld Legal

[1] Today, this underlying crime or civil offense is referred to by courts as the conspiracy’s “target offense.”

[2] June 25, 1948, ch. 645, 62 Stat. 701; Pub. L. 103-322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147. In addition to this general conspiracy statute, many other federal statutes contain anti-conspiracy provisions.

[3] The “overt act” itself need not be an unlawful or wrongful act. Either way, this requirement is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005).

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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