Inchoate crimes are crimes that anticipate a further criminal act. Inchoate comes from the Latin word incohare which means to begin. Criminals who commit inchoate crimes begin to take the steps toward accomplishing the criminal purpose but not enough steps to complete the intended crime. Inchoate crimes are attempt, solicitation and conspiracy. Conspiracy is an inchoate crime because it doesn’t require that the crime to be completed.
Conspiracy is defined as making an agreement with one or more people to commit a crime. The elements of conspiracy comprise of actus reus, mens rea, and circumstance. Conspiracy actus reus consists of two parts: an agreement to commit a crime (in all states) and an overt act in furtherance of the agreement (in about half the states) (Samaha, 2017). The agreement doesn’t have to be a written or verbal contract. Evidence that point to an unspoken understanding between the conspirators are good enough to prove they agreed to commit a crime. Furthermore, an agreement can exist although not all of the participants have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. Overt act is defined as an outward act done in pursuance of the crime and a manifestation of an intent or design, intending the completion of the crime (USLegal, 2019). Conspiracy mens rea is the mental element of the conspiracy. The mens rea element shows a plan achieve the criminal objective, which is the goal of an agreement.
In order to reach these goals conspirators may need a network of twenty or more people. The relationship of the conspirators can get elaborate, mainly when they involve large scale operations. There are two types of large scale conspiracies; wheel and chain conspiracies. In a wheel conspiracy one or more defendants participate in every transaction and those defendants make up the hub of the wheel. Others participate in only one transaction; they make up the spokes in the wheel (Samaha, 2017). While chain conspiracies consist of participants at one end of a chain who may know nothing of those at the other end of the chain, but every participant handles the same commodity at different points.
While conspiracy covers large scale operations, R.I.C.O was originated in 1968 to reflect the need for effective means to meet the threat of racketeering posed by organized crime (Samaha, 2017). R.I.C.O is the abbreviation for Racketeer Influenced and Corrupt Organizations Act. R.I.C. O’s wide-ranging definitions make it a crime for anyone with a significant role in operating a business, political organization, or informal grouping to commit a series of crimes (at least two) to further the organization’s goals by using its resources. R.I.C.O charges impose enhanced penalties for all types of organized criminal behavior.
Conspiracy in common law is an agreement between two or more persons to commit an unlawful act or to accomplish a lawful end by unlawful means (The Editors of Encyclopaedia Britannica, 2018). The unlawful act or means does not need to be criminal. The earliest mention of conspiracy was in 1304 in the Ordinacio de Conspiratorib. It is explicitly directs against combinations for false and malicious promotions of indictments and pleas, for embracery and for maintenance (Harno, 1941). These statutes do not treat conspiracy as a substantive crime but as a writ. In the year 1611, conspiracy became a substantive offense. Texas penal code for conspiracy elements consist of one or more persons that they will engage in conduct that would constitute the offense and one or more of them performs an overt act in pursuance of the agreement (FindLaw, n.d.).
The most notable difference between common law and modern law is the overt act. Also, in most modern statutes, the criminal objective of the conspiracy is almost always limited to agreements to commit crimes. At common law, conspiracy is a misdemeanor while, modern statutes differ as to what punishments are warranted by a conviction for conspiracy (Law Shelf, 2019). Penal Code has taken a much sterner line on conspiracy by adopting the unilateral approach to conspiracy. The unilateral approach is the rule that not all conspirators have to agree or even know the other conspirators. With this caveat, a defendant can be convicted of conspiring to commit a crime alone as long as he himself agreed to take part in the crime. While in common law, if a defendant agrees to commit a crime with a co-conspirator who is eventually acquitted, the defendant could not be convicted because there was no plurality in the agreement. The defendant hadn’t agreed with anybody and he could not be convicted of making an agreement. Finally, modern law also has the Pinkerton rule. The Pinkerton rule is holds conspirators criminally responsible for every predictable crime committed in furtherance of the conspiracy (Lumen Learning, n.d.).
The reason for the addition of the overt act in the modern law is to prevent people from being thrown in jail for simply discussing a crime. The overt act shows the actus reus. Actus reus is the first principle of criminal liability because we punish people for what they do not what they intend to do. Intentions have to turn into deeds before we can charge for a crime. Also, adding the unilateral rule helped convict criminals without their accomplices. This proves to be useful in cases involving
In order to keep up with society’s needs today modern law needs to require all states to have an overt act. An overt act would insure the conspiracy was going to take place. Even if there were multiple conversations or an agreement without the overt act there isn’t a criminal threshold. Laws also need to have concrete definitions on what conspiracy entails. The vague definitions of the elements in conspiracy offer ample opportunities for discretion. This discretion causes cases with similar backgrounds to have very different results depending on what judge or prosecutor you have. Conspiracy’s vague definitions enhance the chance for receiving a guilty verdict. Statutes have been worded in such a manner that they can hardly be said to be any more precise than the common law. If the law is not clearly defined it presents serious potential dangers of abuse. We see that with the R.I.C.O act. It has been criticized as being overused and applied in a way that is inconsistent with its original purpose.
Conspiracy is a substantive crime. It affords great advantages to law enforcement, since it avoids multiple trials but sometimes those advantages are disadvantages to the defendant. Despite efforts to restrict the reach of conspiracy, the R.I.C.O act prolonged the life of conspiracy law. While we do have legislation trying to narrow the net by eliminating phrases such as unlawful objects” and “lawful objects by unlawful means” it’s not enough to stop the abuse. We have a system of check and balances and keeping conspiracy within reasonable limits, it depends on how each individual prosecutor chooses to employ it, how court administers interpret it, and legislators act to preclude it in excess.
- FindLaw. (n.d.). Texas Penal Code § 15.02. Criminal Conspiracy. Retrieved September 6, 2019, from FindLaw: https://codes.findlaw.com/tx/penal-code/penal-sect-15-02.html
- Harno, A. (1941, March). Intent In Criminal Conspiracy. Retrieved September 8, 2019, from Scholarship Law: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9137&context=penn_law_review
- Law Shelf. (2019). Conspiracy. Retrieved September 6, 2019, from Law Shelf: https://lawshelf.com/courseware/entry/conspiracy
- Lumen Learning. (n.d.). Conspiracy. Retrieved September 8, 2019, from Lumen Learning: https://courses.lumenlearning.com/suny-criminallaw/chapter/8-2-conspiracy/
- Samaha, J. (2017). Criminal Law (12th ed.). Boston, MA: Cengage.
- The Editors of Encyclopaedia Britannica. (2018, April 12). Conspiracy Law. Retrieved September 7, 2019, from Encyclopaedia Britannica: https://www.britannica.com/topic/conspiracy
- USLegal. (2019). Overt Act. Retrieved September 7, 2019, from USLegal: https://conspiracy.uslegal.com/elements-of-the-crime/overt-act/