Conspiracy: Laws and Penalties

A conspiracy may call to mind a group of mobsters around a table in a smoky room, planning to “knock off” a rival gangster; or a cabal of high-level government officials intent on controlling international banking.

A conspiracy may call to mind a group of mobsters around a table in a smoky room, planning to “knock off” a rival gangster; or a cabal of high-level government officials intent on controlling international banking. But most criminal conspiracy cases are more mundane – two lawyers who agree to try and bribe a local judge, a group of business owners who decide to fix prices, or two thugs who work together to rob a liquor store. A criminal conspiracy is simply an agreement between two or people to commit a crime.

Along with solicitation (asking someone to commit a crime) and attempt (trying to commit a crime), conspiracy is one of the so-called inchoate (incomplete) crimes or offenses. A person can be charged with and convicted of an inchoate offense even if no completed crime ever takes place.

What Must the Prosecutor Prove?

In order to convict a person of criminal conspiracy, the prosecutor must show that the person entered into an agreement with one or more people (conspirators) to engage in criminal activity. However, there does not always need to be two true conspirators. For example, even if the defendant enters into an "agreement" with an undercover police officer to engage in illegal activity, the defendant may still be guilty of conspiracy.

The agreement may be explicit, but most agreements to commit crimes are implicit and proved by circumstantial evidence. Because conspiracy laws punish people for plans, rather than actions, there is usually (but not always) a requirement that at least one conspirator commit an overt act.

Overt Acts

An overt act is any behavior (whether criminal or not) that furthers the conspiracy plot, or gets the ball rolling. For example, two students tell a classmate that they are going to blow up the school. The classmate tells a teacher and police respond. The two students cannot be arrested for conspiracy because neither of them took any overt act. However, if one of the students buys acetone and hydrogen peroxide to build a bomb, the two could be charged with conspiracy. Although buying these materials is not itself illegal, it would probably be considered an overt act in furtherance of the conspiracy.

Overt acts are not always required. For example, federal prosecutors do not need to show an overt act to prove a conspiracy to engage in narcotics trafficking.

Acts of Co-Conspirators

Under most state’s conspiracy laws, each conspirator can be held legally responsible for any crimes committed by other conspirators as long as these crimes fall within the scope of the conspiracy. However, each conspirator does not decide the scope of the conspiracy for him or herself. Instead, even one co-conspirator can broaden the scope of the conspiracy.

This means that a conspirator can easily be held responsible for crimes that he or she did not plan to commit or even anticipate. For example, suppose two friends decide to commit an armed robbery at a convenience store. During the robbery, one person waits in the car out front. The other goes into the store and holds up the cashier at gunpoint and shoots the cashier when the cashier threatens to call the police. Both conspirators can be charged and convicted for robbery and the shooting because the cashier was shot in order to prevent the conspirators from being caught by the police.


As noted above it is not usually a defense to conspiracy that a co-conspirator was actually an undercover police officer. Nor is it a defense to conspiracy that the conspiracy was unlikely to ever be carried out.

Impossibility. Legal impossibility may be a defense to conspiracy. The impossibility defense can be asserted when, even if the conspiracy’s goal was achieved, no crime would have occurred. For example, planning to do something that is not illegal does not make the planners co-conspirators.

However, factual impossibility (that the defendants would not have been able to carry out their planned crime) is usually not a defense. For example, if two defendants were planning to steal money from a person’s home, but there was no money there, that is not a defense.

Abandonment. The abandonment defense can be raised when a defendant withdraws from the conspiracy and communicates the withdrawal to the other conspirators. While state laws vary, generally the withdrawal must occur well before the crime is to take place.


Conspiracy is itself illegal and carries criminal penalties. This means that if people conspire to commit a crime and actually commit the crime, they can be punished both for the conspiracy and the completed crime.

The punishment for conspiracy varies, but in many states people who commit conspiracy can be given the same sentence as would be given if they had actually completed the crime. For example, if armed robbery is punishable by ten to 25 years in prison, then conspiracy to commit armed robbery could also be punishable by a term of ten to 25 years. Of course, if the person is convicted of both armed robbery and conspiracy, the possible prison term would be 20 to 50 years.

Obtaining Legal Assistance

If you are charged with or under investigation for conspiracy to commit any crime, you should talk to a criminal defense attorney who has handled conspiracy cases. Conspiracy convictions can result in long prison or jail sentences and expensive fines. An attorney can tell you the likely consequences of a conviction, based on the charges, the assigned judge and prosecutor, and the law in your state. An attorney will know if you are in good position to plea bargain, go to trial, or get the charges dismissed. The best way to protect your rights is to work with an experienced criminal defense lawyer.

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