The Problem of Conspiracy

What do Charles Manson, Dr. Benjamin Spock, Billie Sol Estes, Abbie Hoffman, Bobby Scale, various General Electric executives and numerous Mafia members have in common? They have all been accused or convicted of conspiracy, the most elusive crime on the books. The crime can be little more than an intention: an agreement between two or more people to do something illegal. Federal law and many state laws add the stipulation that at least one conspirator take an overt step, not necessarily an illegal one. But so sprawling and elastic is the legal conception that the late Judge Learned

Hand called conspiracy "the darling of the modern prosecutor's nursery." To convict Father Philip Berrigan of conspiring to kidnap Henry Kissinger, for example, the Government need not prove that the antiwar priest and his five co-defendants ever approached the presidential adviser or even laid eyes on him. It must simply show that there was an agreement and that at least one conspirator took an overt step toward carrying out the alleged plot.

As legal critics see it, American prosecutors have increasingly and often unfairly taken advantage of the fact that conspiracy requires less evidence of actual injurious conduct than any other crime. Prosecutors sometimes coerce testimony from remote participants who can be intimidated by the broad net of a conspiracy charge. Any one of them may be persuaded to testify against his co-conspirators in return for immunity from prosecution. In still another tactic familiar to prosecutors, conspiracy is sometimes added to other charges, to strengthen the prosecutor's hand in bargaining for a guilty plea.

Uneasy Seat. In theory, a secret agreement ought to be so hard to prove that the courtroom odds should favor the defense. In practice, the prosecution often has the advantage. For one thing, jurors tend to accept an alleged conspiracy as a proven fact when they see defendants grouped together in the courtroom. Each one of the defendants occupies "an uneasy seat," wrote the late Justice Robert Jackson of the U.S. Supreme Court. "It is difficult to make his case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."

As if to reinforce this guilt by association, the prosecutor has wide latitude to introduce hearsay evidence, including defendants' statements, so long as they support the conspiracy theory. To compound a jury's confusion, once a conspiracy has been established, any defendant is equally culpable for the acts of the others. So complex are the legal rules that the judge himself may unwittingly tip the scales against individual defendants when he charges the jury and tells it how difficult conspiracy is to prove and how secretive conspirators tend to be. The net effect, says Dean Abraham Goldstein of the Yale Law School, "is to invite juries to find 'guilt' on less evidence than is required of other crimes."

Clean Sweep? Conspiracy thus poses a legal dilemma. In its effort to cope with group crime, society tends to discard a basic premise of Anglo-American law: the presumption that an individual is innocent until proved guilty. Many legal scholars believe that jurors often regard conspiracy defendants as guilty until proved innocent. There is also rising concern about the Government's increasing use of conspiracy laws against leaders of dissident political groups. Indeed, some scholars agree with Harvard Law Professor Alan Dershowitz, who argues: "I would wipe the law clean of conspiracy; on balance, it does more harm than good."

Dershowitz's dictum is extreme; outright repeal of conspiracy laws seems unwise. They are needed to stop dangerous plots before they are executed. But eminent scholars do support two basic reforms. For one thing, prosecutors should not be allowed to bring conspiracy charges when the plot has been carried out and the participants can be prosecuted for the very crime they conspired to commit. Second, critics like Yale's Goldstein contend that conspiracy law should be more compatible with the more explicit law of attempts. Under that doctrine, an illegal act must be close to consummation before it is deemed an attempted crime. Thus Goldstein would make conspiracy a criminal matter only when the conspirators have carried their agreement to the advanced stage of an actual attempt and are unlikely to withdraw from their unlawful scheme. But even such reforms would be less urgently needed if prosecutors applied present conspiracy laws more sparingly and fairly. The basic problem is not the laws, but those who misuse them.

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