The application of conspiracy laws requires a tacit agreement among members of a group to commit a crime. Such laws allow the government to charge a defendant regardless of whether the planned criminal act has been committed or the possibility of the crime being carried out successfully.

It is not illegal to think about committing illegal acts—such as in the case of civil disobedience—as any law that would criminalize the mere thought or suggestion of committing an illegal act would be a free speech violation. Conspiracy laws can only be enforced after individuals take an initial step beyond planning and toward execution of an illegal deed. An individual who has agreed to participate in a crime is not required to know everyone involved in the plot in order to be charged with conspiracy.

Although the crime of conspiracy is contingent upon an agreement, as Broderick (1985) notes, federal law “provides no rule for determining which of the various conditional objects of a conspiracy should determine the legal status of an agreement” (p. 899). Agreements made through a verbal understanding or without written acknowledgment can both be considered forms of conspiracy. The most common criticism of conspiracy laws is this lack of specificity in what constitutes an agreement and intent.

Because of the ambiguities associated with the definition of conspiracy, there exist concerns about conspiracy laws interfering with First Amendment rights by allowing governments and states to crack down on those who disagree with the positions of the state. For example, an agreement made among any number of people that asserts their willingness to subvert a disliked governmental policy or policies could be considered conspiracy. A state may fear opposition to its policies and in response pursue conspiracy-related charges against those speaking out against them. In Dennis v. United States (1951), the Supreme Court upheld convictions of Communist Party members for conspiring to teach or advocate the violent overthrow of the government. According to the Court, “[T]he end being punishable, there is no doubt of the power to punish conspiracy for the purpose.”

Broderick (1985) observes that proponents of conspiracy laws justify them to prevent the execution of crimes “whose likelihood of occurrence has grown great” and to allow for the state “to apprehend conspirators who have revealed a clear expectation of committing specific crimes” (p. 905). Although this might be the intent of the laws, the statutes can be and sometimes are misapplied and used against government opponents precisely because of the ambiguities regarding what is considered an agreement and whether it constitutes harm, even when the scheme is not practical and cannot be realistically accomplished. In contrast, others point to such laws as important tools, for example, in the “war on terrorism,” by allowing authorities to charge individuals with conspiracy before the act of terror has occurred.

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