In recent months, Boston Mayor Marty Walsh and members of his administration have come under scrutiny for allegedly pressuring city contractors to hire union labor.  That scrutiny has yielded two indictments so far, with the possibility of more to come. Specifically, two city officials face federal criminal charges related to suspicions they forced a music festival to hire union stagehands for a concert.  Along with extortion, prosecutors charged them with conspiracy: counts that are perhaps prosecutors’ favorite weapons in their charging arsenal.  

Why do prosecutors love conspiracy?  First of all, conspiracy is an “add-on” crime that prosecutors can charge on top of the target offense, e.g., the crime of selling drugs and the separate crime of conspiracy to sell drugs.  The presence of the additional charge gives leverage for prosecutors in plea bargain negotiations—and in enticing one co-conspirator to testify against another in exchange for leniency.   

Second, there are a host of practical benefits for prosecutors. They can try co-conspirators jointly; there is an exception to the ban against hearsay evidence that allows the government to introduce certain out-of-court statements by one co-conspirator against another; and there may be flexibility in choosing the location for the trial. Conspiracy laws vary from jurisdiction to jurisdiction and have complicated nuances far beyond the scope of this brief commentary.  Even so, conspiracy is easy to charge and difficult to defend.  Here’s why: 

The heart of a conspiracy is that there must be an “agreement” between two or more people, the notion from Latin that the parties “breathed together” in devising the plan.  Yet case law suggests this agreement need not be a formal, clearly delineated arrangement; a mere implicit understanding often suffices.  While states traditionally required a bilateral agreement between two (or more) genuine participants in the venture, some jurisdictions allow charges for unilateral conspiracies in which one would-be conspirator joins forces with an undercover officer or informant.  What is more, the conspiring parties are not required to have come close to achieving the criminal objectives.  In many jurisdictions, as long as any one of the co-conspirators takes an “overt act” in the direction of the conspiracy, then all of them are on the hook, regardless of how far removed that act is in realizing the illegal goal.   

That’s not all.  Under a rule known as the Pinkerton Doctrine, in many instances a person can be held criminally responsible for the subsequent crimes of their co-conspirators committed in furtherance of the conspiracy even if they are not explicitly involved in or even aware of those actions.  There are usually ways in which you can abandon a conspiracy after you have entered it, but the rules of abandonment can be surprisingly onerous. Some statutes demand that, to exit a conspiracy and avoid criminal responsibility, you must act to thwart the success of the conspiracy. 

I am troubled by both the theory and practice of conspiracy law.  Of course, conspiracy is an appropriate crime to charge in certain cases.  And the underlying rationale makes some sense—that two criminal minds working in concert are dangerous, or at least more dangerous, than a single person contemplating a misdeed.  But by its very nature conspiracy is a crime susceptible to over-charging by prosecutors who see its ample benefits and limited downsides.  

The worrisome questions raised by conspiracy laws include the following: how far down the line of responsibility may prosecutors reach in finding co-conspirators?  To what extent does the threat of a conspiracy charge serve as a fishing expedition by prosecutors to prompt low-level actors to “flip” and provide information against someone else? Is it fundamentally fair to charge a person with a crime when she has not taken any steps toward completing the act?  What about the particular problems with the federal crime of conspiracy given the lingering presence of draconian sentencing practices in the federal system? 

As noted above, conspiracy is a prized weapon in the charging arsenal of prosecutors.  Like all potent weapons, however, it should be used sparingly and judiciously.  Many people are paying attention to prosecutorial practices at the moment because of the spate of police-involved incidents with citizens.  I hope the public puts the spotlight on prosecutorial decision-making more generally, including on conspiracy charging practices.