Conspiracy: Charges and Penalties

When people think of a criminal conspiracy, they might envision the mob or some other secret group plotting out a big heist or even an assassination. But most criminal conspiracy cases are pretty humdrum by comparison.

For example, a conspiracy could result when two thieves plan a burglary together or a few business people engage in illegal insider trading. A criminal conspiracy is simply an agreement between two or more people to commit a crime (who are often called "conspirators" or "co-conspirators"). That said, it's serious business because it can often lead to a felony conviction, depending on the type of crime that was planned.

What Is a Criminal Conspiracy Charge?

Along with attempt (trying to commit a crime) and solicitation (asking someone to commit a crime), conspiracy is an "inchoate" (incomplete) crime. A person can be charged with an inchoate offense even if no completed crime—often called the "target crime" in conspiracy cases—ever takes place.

For example, assume that Walter and Jesse have a drug business agreement: Walter will be in charge of making methamphetamine, Jesse will sell the drugs, and they'll both share the profit. In that scenario, the target crimes might be drug trafficking offenses like manufacturing and distributing controlled substances. The agreement to commit those crimes would be the separate crime of conspiracy.

If Walter and Jesse scrap their plan because they can't find any meth-making supplies, they'd avoid committing the target crimes. But they could still be charged with conspiracy for having agreed to commit them. On the other hand, if their plan is successful and they do commit the target crimes, they can be charged with those offenses as well as conspiracy.

How Does a Prosecutor Prove Conspiracy?

Though states differ in how they define the elements of conspiracy, a conviction usually requires proof that the defendant agreed with one or more people to commit a crime and intended to follow through with it. Often (but not always), the prosecutor also has to prove that someone in the conspiracy committed at least one "overt act" to further the target crime.

Agreement to Commit a Crime

The agreement doesn't have to be formal and doesn't even have to be "express" (written or spoken out loud for example). Sometimes, there might be clear evidence of an agreement, such as text messages or recorded phone calls about a planned crime. Often, there's no such direct evidence, and the prosecution has to rely on circumstantial evidence—like the actions of the alleged conspirators—to prove an implied agreement.

Consider a bank robbery where one person acts as a lookout, another demands money at gunpoint, and a third waits in a getaway car in which they all flee from the scene. In these circumstances, it would appear that each person had a role in the robbery and acted together, which suggests that they had a mutual agreement to rob the bank.

That said, in a conspiracy involving more than two people, the prosecutor doesn't necessarily have to prove that each person had an agreement with everyone in the conspiracy. For example, consider Walter and Jesse's agreement to make and distribute meth discussed above. Assume that Jesse asks his friends Badger and Pete to sell the drugs, and they agree to do it. Even if they never meet Walter or agree to anything with him, they're all still part of the same conspiracy, because each conspirator has agreed with at least one other member of the conspiracy to traffic in drugs.

Also, sometimes a person can be charged with a conspiracy even when they're the only true conspirator. For instance, if someone enters into an "agreement" with an undercover police officer to commit a crime, they can be guilty of conspiracy even though the officer didn't intend to commit the crime.

Intent to Commit the Crime

Some states require the prosecutor to prove that when the defendant agreed to commit the target crime, they intended to commit it. This is usually pretty easy to prove once the prosecutor has shown there was an agreement. People don't normally agree to commit crimes they don't intend to commit.

Overt Acts

Many conspiracy laws make the prosecutor prove that at least one co-conspirator committed an "overt act."

An overt act is any behavior (whether criminal or not) that furthers the conspiracy. In other words, it's a step toward committing the target crime.

So, in the bank robbery example, there might be several overt acts, such as looking up the bank's hours, planning a route, and driving toward the bank. Even though these actions are perfectly legal in everyday life, they can still be overt acts in a conspiracy because their purpose is to get the ball rolling on the target crime.

In some kinds of cases, prosecutors don't even have to prove an overt act. For example, federal prosecutors don't have to show an overt act to prove a conspiracy to engage in narcotics trafficking. (United States v. Shabani (1994) 513 U.S. 10; 21 U.S.C. § 846.)

Acts of Co-Conspirators

Under federal and many state's laws, each member of a conspiracy can be found guilty of crimes committed by any other member. So long as those crimes fall within the scope of the conspiracy and were "reasonably foreseeable," other people in the conspiracy could be on the hook for them.

Here's an example of how this rule works: Imagine that in the bank robbery example above, the guy with the gun shoots and kills a security guard who tries to intervene. In that scenario, the lookout and the getaway driver can be charged with, and possibly convicted of murder—even if no one ever considered or discussed killing anyone. That's because shooting someone is normally a reasonably foreseeable outcome of an armed robbery.

In some states, the co-conspirators might also be prosecuted under a felony murder theory in this kind of situation. (Note that states like California now forbid a conviction for murder committed by someone else unless the defendant intended the killing or demonstrated a willingness to kill.)

(Pinkerton v. United States, 328 U.S. 640 (1946); Snowden v. United States (2012) 52 A.3d 858, 866-867; People v. Clark (2016) 63 Cal.4th 522, 617; Cal. Penal Code § 1172.6.)

Defenses to Conspiracy

In addition to the common defenses that might apply in any criminal case, there are some defenses that could apply to conspiracy cases specifically. Here are a few.

Abandonment or withdrawal. Sometimes, people agree to things they regret, and after thinking better of it, change their minds. The abandonment defense can be raised when a defendant withdraws from the conspiracy and informs their co-conspirators that they're no longer in on the plan. While state laws vary, generally the withdrawal must occur before any overt act takes place.

No agreement. In some cases, a defendant might be able to show they never agreed to commit the crime. Imagine three guys who steal a car. One jimmies the lock as the others act as lookouts, and then they all drive off in the car. The prosecutor might argue that they all seemed to know what was going to happen, so they must have conspired to steal the car. But the defense might counter that the evidence shows the crime was spontaneous; the guys came upon a car and one of them just broke in, so the others helped him. In that scenario, the judge or jury might find that there was no agreement. (Though the defendants could all still be guilty of auto theft, car burglary, and joyriding).

Legal impossibility. Legal impossibility may be a defense to conspiracy in some state and federal courts, but not all (some don't allow it). This defense can be used when the goal of the conspiracy isn't actually a crime, even though the conspirators think it is. For example, planning to receive stolen goods is a legal impossibility if the goods aren't actually stolen.

Legal impossibility is different from factual impossibility, which usually isn't a defense. A factual impossibility exists when the goal of the conspiracy is a crime, but there's no way it can be carried out. For example, if the conspirators plan to steal jewels from someone's home but the jewels aren't there, the fact that it was impossible to commit the theft isn't a defense.

Entrapment. As noted above, someone can be guilty of conspiracy even if the person they conspired with was actually an undercover cop. Generally, it's not a defense to argue there was no conspiracy because the officer didn't intend to commit the agreed-upon crime. But in some circumstances, the defendant might be able to argue entrapment. If the officer got the defendant to agree to something they wouldn't have agreed to otherwise, the entrapment defense might apply.

Penalties for Conspiracy: Jail Time, Prison, and Sentencing Alternatives

The punishment for conspiracy varies depending on where the conviction occurs. Conspiracy is usually a felony, but when the crime planned is a misdemeanor, the conspiracy might be a misdemeanor in some jurisdictions (the place where the court is).

In many jurisdictions, people convicted of conspiracy can receive the same sentence they would have gotten if convicted of the crime they conspired to commit. For example, if armed robbery is punishable by 10 to 25 years in prison, then conspiracy to commit armed robbery could also be punishable by 10 to 25 years.

In less serious conspiracy cases, the person might get a fairly short prison or jail sentence, or even probation. The judge might also order convicted defendants to pay fines and restitution instead of, or in addition to, time behind bars.

And if the defendants actually committed the crime they planned, they could be punished for that crime, too. So, someone convicted of robbery and conspiracy to commit robbery could be punished for both crimes, depending on the jurisdiction. Federal courts generally allow multiple punishment for both, but states like California don't. In California, when the only goal of the conspiracy was the crime the defendants committed, they can be convicted of both, but punished for only one.

(Iannelli v. United States, 420 U.S. 770, 777-778 (1975); Cal. Penal Code § 654.)

Getting Legal Help

If you're charged with or under investigation for any crime, you should talk to a criminal defense attorney right away. If your case involves a conspiracy charge, your best bet is to consult with a lawyer who has handled conspiracy cases.

An experienced, local attorney should be able to tell you how your case will proceed through the system based on the charges and the law in your state. They might also know what to expect from the judge and prosecutor assigned to the case. An experienced attorney should know if you're in a good position to plea bargain, go to trial, or get the charges dismissed. The best way to protect your rights is to consult with a criminal defense lawyer as soon as possible.