What is conspiracy in law?

Why agreement alone can be a crime

The law treats group criminal planning as more dangerous than an individual's plan: groups are harder to stop, can do more harm and make it less likely anyone will change their mind. So the agreement is punished on its own, and it can be charged in addition to the crime the group actually committed.

The elements

• An agreement between at least two people. It can be inferred from conduct — nothing needs to be written or even spoken outright. Coordinated actions, shared proceeds and repeated dealings are the usual proof.
• Intent to agree and intent that the object offense be committed. Knowing that others are committing a crime is not the same as joining them.
• An overt act by any conspirator in furtherance of the plan, required by the general federal conspiracy statute and by many states. The act can be minor and lawful in itself — renting a car, making a phone call. Federal drug conspiracy, notably, does not require an overt act.

Who counts as a party

Under the traditional “bilateral” approach, two people must genuinely agree, so an agreement with an undercover officer is not a conspiracy. Many states now follow the Model Penal Code's “unilateral” approach, where one person's genuine agreement is enough even if the other is secretly an informant. Conspirators do not have to know each other: in “chain” and “wheel” conspiracies, a supplier, a distributor and street-level sellers can all be members of one agreement.

Why prosecutors like it

Three practical advantages. Liability reaches people who never touched the offense itself, such as organizers and financiers. Under the Pinkerton rule in federal court and many states, each conspirator can be liable for foreseeable crimes committed by the others in furtherance of the plan. And statements by one conspirator made during and in furtherance of the conspiracy are admissible against all of them, as an exception to the hearsay rule. Conspiracy charges can also be brought in any district where an overt act occurred, giving prosecutors a choice of venue.

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Defenses

• No agreement — mere presence, knowledge or association is not enough. A girlfriend who knows her boyfriend sells drugs is not a conspirator for that reason alone.
• Withdrawal — an affirmative act communicating abandonment to the others, or a disclosure to law enforcement. To avoid the conspiracy charge entirely it generally must come before the overt act; later withdrawal still cuts off liability for the others' future crimes and starts the statute of limitations running.
• Renunciation — in states following the Model Penal Code, thwarting the crime's success with a complete and voluntary renunciation is a full defense.

Impossibility is generally not a defense, and neither, in most modern jurisdictions, is the acquittal of a co-conspirator.

Penalties

Under federal law the general conspiracy statute (18 U.S.C. § 371) carries up to five years, but many specific conspiracies — drugs, fraud, money laundering, racketeering — carry the same penalty as the completed offense. Sentences for the conspiracy and the substantive crime can be imposed separately. In drug cases, the quantity attributed to a defendant can include amounts handled by others in the conspiracy, which is why minor participants sometimes face long sentences.

Conspiracy vs. attempt and aiding and abetting

Attempt requires a substantial step toward committing the crime yourself; conspiracy requires only agreement plus, where required, any overt act. Aiding and abetting makes someone liable for a crime that was actually committed by helping with it, while conspiracy can be charged even if the crime never happens. Prosecutors often charge all three together.

If you are under investigation

Conspiracy cases are built on recorded calls, text messages and testimony from cooperating co-defendants. Do not discuss the case with others involved, since those conversations may be recorded and used as evidence. Speak to a criminal defense lawyer early, especially before any meeting with investigators or any offer to cooperate.