The Evolution of Criminal Conspiracy Laws: From Common Law to Statutory Offenses

1 Abstract This paper examines how the elements of criminal conspiracy have evolved from early common law interpretations to modern statutory definitions. It outlines the essential conspiracy components under common law, including agreement, intent, and an overt act. It then explains how state conspiracy statutes retain agreement and intent provisions but frequently no longer require proof of an overt act. By comparing these changes, the reasons behind the shift become clear – statutes aim to expand law enforcement power to intervene earlier and capture more coconspirators. However, modifications also raise concerns about individual rights. Additional changes are suggested to account for large-scale conspiracies and terrorism while balancing prevention and liberties. Ultimately, conspiracy laws reflect an ongoing adaptation to meet society's safety needs without overreach.

2 The Evolution of Criminal Conspiracy Laws: From Common Law to Statutory Offenses Criminal conspiracy laws target collaborative efforts to commit unlawful acts. Under common law, conspiracy consisted of three core elements – an agreement between two or more persons, intent to commit a criminal offense, and an overt act to further the conspiracy (Garoupa, 2007). However, through statutory law, the dynamics of conspiracy have evolved considerably over time. State statutes retain the agreement and intent provisions but frequently no longer require proof of an overt act. The scope of targeted offenses has also expanded dramatically.

Analyzing how conspiracy laws have changed reveals a complex interplay among public demands, law enforcement capabilities, and individual rights. Additional modifications may be warranted, but a balanced approach is needed.

Elements of Criminal Conspiracy Under Common Law Agreement between Two or More People The foundation of a criminal conspiracy charge under common law is an agreement between two or more persons to commit a crime (Garoupa, 2007). This distinguishes conspiracy from individual criminal intent. There must be a meeting of the minds and a unified purpose to establish liability. The agreement need not be formal or explicit but can be tacitly understood based on the circumstances. This agreement element recognizes conspiracy as a collaborative enterprise centered on criminal coordination.

Intent to Commit a Crime In addition to the agreement, common law conspiracy requires intent by the coconspirators to commit a criminal offense (Garoupa, 2007). There must be a specific intent to advance an unlawful act. This underscores that the mere act of agreeing is not inherently criminal - the object of the agreement must be illegal. The intended crime need not be completed by the

3 conspirators. The intent creates grounds for liability based on the recognized dangers of criminal collaboration.

Overt Act in Furtherance of the Conspiracy Under most common law interpretations, conspiracy also requires an overt act committed in furtherance of the agreed-upon crime (Garoupa, 2007). This constitutes an observable step to advance the conspiracy beyond the stage of agreement and intent alone. An overt act demonstrates that the threat has moved beyond ideas or preparation into concrete action.

However, the overt act need not be criminal itself. Any detectable step to facilitate the conspiracy often suffices for this element.

Elements of Criminal Conspiracy Under State Statutes Agreement Between Two or More People While common law focuses on agreements, state conspiracy statutes continue to target collaborative criminal efforts (Rottweiler & Gill, 2022). Language regarding agreements between multiple parties is present in nearly all state laws. Modern technology has facilitated complex criminal coordination, underscoring the ongoing need to address conspiracy through agreements. The substance remains focused on collective enterprises.

Intent to Promote or Facilitate a Crime State statutes also retain intent provisions but frequently frame them in terms of promoting or facilitating a crime rather than merely committing one (Rottweiler & Gill, 2022).

This broadens the scope of unlawful objectives covered. The aim need not be a specific completed offense but can be facilitated more generally. Some statutes even include "or attempt" to cover failed efforts. These linguistic shifts capture various collaborative criminal mentalities in evolving times.

4 Overt Act Not Always Required A significant departure in modern conspiracy statutes is that many no longer require proof of an overt act (van Prooijen, 2022). The dangers of agreement and intent alone are now considered adequate grounds for liability in approximately fifteen states and under federal statutes. Prosecutors thus gain the flexibility to intervene based on evidence of planning and coordination even before any tangible steps are taken. The obstacles to proving an overt act are removed.

Comparing Common Law and Statutory Elements Agreement and Intent Elements Are Similar The core elements of common and statutory conspiracy laws remain agreement and intent (Garoupa, 2007). Phasing changes have broadened the scope, but the essence remains coordinated mental purpose regarding a criminal offense. These parallel foundations reflect continuity in targeting collaborative criminality through mutual goals and coordination.

Overt Act May Not Be Required Under Statutory Law In contrast, overt act requirements have undergone significant changes, with approximately fifteen states no longer necessitating this element be proven (Kessler Ferzan, 2021). Whereas early common law emphasized a detectable physical step, many modern statutes focused solely on the agreement and shared intent. This significantly expands law enforcement's ability to intervene based on intelligence rather than waiting for action in the planning stages.

Statutes Broaden Scope of Conspiracy Modern statutes encompass more situations by framing unlawful objectives, targets, and motivations in broader terms (Kessler Ferzan, 2021). This widens the net for prosecutors in capturing twenty-first-century criminal enterprises. Phrasing regarding facilitating or attempting

5 crimes creates flexibility that is absent under common law. Knowledge of growing large-scale and technology-driven conspiracies shapes this trend.

Reasons for Changes to Conspiracy Laws Reflect Societal Emphasis on Preventing Crimes Modifications to require only intent and agreement mirror society’s demand for more proactive approaches against organized and terrorist conspiracies (Garoupa, 2007). Protecting the public has taken priority over waiting for overt criminal acts. The severe risks of unchecked conspiracies justify earlier intervention even if liberties are impacted. Prevention has become integral to enforcement.

Allow Earlier Intervention by Law Enforcement Relatedly, removing overt act requirements grants law enforcement leeway to disrupt the planning stages (Garoupa, 2007). Rather than awaiting an overt step, agencies can now act on intelligence about agreements and intentions alone. This provides a strategic advantage against modern conspiracies. However, it also opens the door to overreach absent tangible evidence.

Broaden Reach to Capture More Co-Conspirators Widening liability through expansive phrasing also aims to deter collaborative crimes by increasing the number of offenders covered (Garoupa, 2007). Broad terms like "promote or facilitate" capture peripherally involved parties often excluded under common law. The goal is to cast a wide net against sweeping contemporary conspiracies. However, questions arise on fairness and over-criminalization.

Suggested Additional Changes Increase Penalties Based on Number of Co-Conspirators

6 States can further modernize conspiracy laws by enacting enhanced penalties based on the number of conspirators (Fuson, 2019). Recognizing large-scale criminal enterprises, sanctions should escalate for each participant above a minimum threshold. This will deter the growth of associations by factoring scale into sentencing.

Enhance Conspiracy Laws Focused on Terrorism Given rising extremist threats, legislatures should create conspiracy statutes tailored specifically to terrorism (Doyle, 2016). General laws neglect unique challenges like online radicalization. Elements could address disseminating extremist materials and recruitment. This will equip law enforcement against evolving threats.

Strengthen Overt Act Requirements States should restore vital overt act requirements to balance individual rights and law enforcement powers (Doyle, 2016). This will curb abuses of conspiracy charges absent firm evidence. However, overt acts should encompass serious preparatory steps short of attempted crimes themselves. Flexibility and restraint must be rebalanced.

In conclusion, conspiracy laws have undergone major transformations from early common law interpretations to contemporary statutory offenses. The basic elements of agreement and intent largely persist, but overt acts are frequently no longer required. Phrasing has also grown more expansive in scope. These changes reflect policy goals of preventing crimes and capturing more offenders fueled by public safety fears. However, they also raise questions about restraint and rights. Further modifications may be prudent, but not without ensuring a balance between security, liberty, and fairness under the law. Conspiracy laws thus remain an evolving response to society's competing demands.

7 References Doyle, C. (2016). Federal conspiracy law: A brief overview. Congressional Research Service.

Fuson, H. (2019). Fourth Amendment Searches in First Amendment Spaces: Balancing Free Association with Law and Order in the Age of the Surveillance State. U. Mem. L. Rev., pp. 50, 231.

Garoupa, N. (2007). Optimal law enforcement and criminal organization. Journal of Economic Behavior & Organization, 63(3), 461–474.

Kessler Ferzan, K. (2021). Conspiracy, Complicity, and the Scope of Contemplated Crime. Ariz.

St. LJ, 53, 453.

Rottweiler, B., & Gill, P. (2022). Conspiracy beliefs and violent extremist intentions: The contingent effects of self-efficacy, self-control, and law-related morality. Terrorism and Political Violence, 34(7), 1485-1504. van Prooijen, J. W. (2022). Injustice without evidence: the unique role of conspiracy theories in social justice research. Social justice research, 35(1), 88-106.