The New Conspiracy to Support an Idea

Abstract

Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution.At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the uniform system of conspiracy law permits virtually all types of evidence to be admitted to prove all of conspiracy’s elements, with almost nonexistent evidentiary and constitutional rules to limit this admission. The result is elision of important normative, constitutional, and evidentiary rules designed to ensure both outcome reliability and individuals’ rights.This article provides a history of conspiracy law that illustrates the law’s qualitative and quantitative expansion toward its modern iteration. That history begins in 1285 England, when conspiracy was limited to agreements to falsely prosecute another and could be charged only where the victim was in fact prosecuted and acquitted. I call this type of conspiracy specific and consequentialist. During its subsequent evolution, the law became what I call general in that it applied to agreements to commit any crime whatsoever and deontological because the substantive target crime no longer had to have been achieved — the conspiracy itself became unmoored from its factual context and a crime. The 18th and 19th century Hawkins and Denman doctrines introduced a moral aspect to conspiracy — condemning agreements that aimed at “wrongful” conduct as much as criminal conduct. The ultimate result was the uniform system of modern conspiracy.This article also provides four normative reforms that respond to conspiracy’s systemic uniformity. These reforms are grounded in extant law on conspiracy, treason, and, because speech is the primary type of proof, First Amendment law. These reforms are meant to create dynamism in the system, which should serve both accurate outcomes and defendants’ rights.It is important to understand the current system of criminal conspiracy both because of its pervasive use in prosecutions and the growing consensus that the law targets unpopular ideas and speech and produces erroneous outcomes. Now more than ever, reforms to the system of criminal conspiracy are necessary to ensure a legitimate criminal justice system that protects individual rights and ensures reliable outcomes.