The modern crime of conspiracy punishes the act of agreement with another to do something unlawful, and the vagueness and breadth of its scope are the legacies of seventeenth-century English judges who invented its common law progenitor. Constitutional doctrine has not shaped the boundaries of this crime; it is, indeed, the other way around. Most paradoxically, the crime has served both as a tool for the suppression of first amendment freedoms and as a weapon for the defense of rights to racial equality. Like all political issues, the definition of "unlawful" conspiracies fluctuates with the moral hemlines of history.
In the eighteenth century, the English crime came to encompass the agreement to do any "immoral" acts, even noncriminal ones. This became an element of American conspiracy law as well, and one of its early critics was Chief Justice lemuel shaw of the Massachusetts Supreme Judicial Court. In Commonwealth v. Hunt (1842) Shaw put an end to conspiracy prosecutions of laborers who organized to seek such noncriminal goals as higher wages or a closed shop. Criminal goals, of course, remained punishable, and trade union conspiracy prosecutions died out in the 1890s only because they were replaced by judicial resort to the labor injunction. Statutes prohibiting noncriminal conspiracies remained on the books, but their demise was hastened by state court decisions holding them void for vagueness or violative of the ex post facto clause.
Federal conspiracy prosecutions commenced in 1867 with the enactment of a Federal Criminal Code provision prohibiting conspiracies to defraud the United States. The rise of organized crime during Prohibition provided the impetus for the expansion of federal conspiracy offenses; the racketeer influenced and corrupt organizations act of 1970 is an exemplar of their sweeping scope. In 1925, Judge learned hand labeled conspiracy "the darling in the prosecutor's nursery," because of the progovernment features that mark conspiracy trials. hearsay statements of co-conspirators are admissible in evidence, and conspiratorial membership may be inferred solely from conduct showing a desire to further the conspiracy's goals. In Pinkerton v. United States (1946) the Court held conspirators liable for every crime committed by co-conspirators, including those of participants whose existence was unknown but foreseeable. The double jeopardy clause does not bar separate, consecutive sentences for these offenses and the conspiracy itself. venue will lie anywhere an act is committed in furtherance of the conspiracy, often effectively nullifying the sixth amendment right to be tried where a crime is committed. Conspirators may be tried en masse, and fringe participants thus become tainted with the culpability of the ringleaders.
It is small wonder that in Krulewitch v. United States (1949) Justice robert h. jackson declared that the "elastic, sprawling and pervasive" nature of the crime of conspiracy poses a "serious threat to fairness" in the administration of justice. Yet while many commentators call for limitations on the crime, due process arguments meet with recurrent failure in the courts. This amoeboid offense remains entrenched in state and federal law and in legislative proposals for criminal code reform.
Conspiracy was a potent weapon for the prosecution of political dissidents during world war i, and these cases brought the Supreme Court to its first important encounter with the First Amendment's guarantees of freedom ofspeech and freedom of the press. The espionage act of 1917 prohibited conspiracies to obstruct the draft or cause insubordination in the armed services, and in schenck v. united states (1919) and frohwerk v. united states (1919) a unanimous Court affirmed the conspiracy convictions of dissidents who had circulated antidraft publications. In Schenck, Justice oliver wendell holmes declared that only a clear and present danger of a conspiracy's success would justify conviction, but this formula was not an important limitation in these cases, where the danger was assumed. Justices Holmes and louis d. brandeis later argued for greater speech protections, but their pleas went unheeded for a generation. Conspiracy convictions of eleven national Communist party leaders were affirmed in dennis v. united states (1951), even though the danger posed by their conspiracy to advocate the overthrow of the government was evidenced only by the party's structure and tenets. The doctrinal thaw came in 1957, with Justice john marshall harlan's opinion in yates v. united states portending the formula of brandenburg v. ohio (1969). Brandenburg allows prosecution for speech crimes—including conspiracy to advocate—only when advocacy of imminent, illegal action is likely to incite such action.
Brandenburg' s weakness as a limit on conspiracy prosecutions is that it only guarantees defendants the benefit of appellate court scrutiny of jury verdicts. It provides no more than an indirect caution for legislative reliance on conspiracy statutes or prosecutorial decisions to seek indictments. Protection of speech interests rests ultimately in the court of public opinion, and the vietnam war era dissidents found an uncertain haven there. The "Chicago Seven" protesters at the 1968 Democratic National Convention were acquitted of conspiring to travel interstate with intent to incite a riot, but they were convicted of other incitement offenses. Benjamin Spock and William Sloane Coffin were convicted of conspiring to counsel draft evasion, based on their support of a draft card burning rally in Boston. After appellate court reversals in United States v. Dellinger (1972) and United States v. Spock (1969), reprosecution was halted only because the government decided to give up trying. The chilling effect of such prosecutions is irremediable, and judicial vindication of speech rights often becomes a matter of better late than never.
The concept of conspiracy can serve civil liberties as aptly as it defeats them. After the civil war, Congress prohibited conspiracies "to injure, oppress, threaten or intimidate" any citizen's free exercise of constitutional rights, and also provided a civil action for damages against conspirators. Narrow judicial construction of these rights defeated their enforcement in the era of united states v. harris (1883) and the civil rights cases (1883). But Justice william o. douglas's opinion in screws v. united states (1945) revived prosecutions of state officials, while united states v. guest (1966) brought similar vindication against private individuals, and griffin v. breckenridge (1971) opened the damage remedy door. Debate continues over the scope of rights protected by these remedies. But conspiracy's contribution toward curbing civil rights violators remains as notable as its role in rounding up racketeers.
Johnson, Phillip E. 1973 The Unnecessary Crime of Conspiracy. California Law Review 61:1137–1188.