110 Iowa L. Rev. 1203 (2025)
Abstract
A heap of criminals is not a conspiracy any more than a pile of bricks is a house, yet every day in court, prosecutors elevate the stakes in prosecutions and plea bargaining by charging defendants who commit crimes in groups with conspiracy. The crime may be as disorganized as the impulsive decision to rob a convenience store, but if the prosecutor can show that more than one person participated in the crime, she can add a conspiracy charge. The premise of the Article is that this is wrong and that conspiracy charges should be reserved for cases where there is an agreement to commit a crime followed by substantial planning and plotting to carry out the crime. Only in these cases do the defendants’ actions pose a special danger and deserve to be called a conspiracy.
My solution is to add a substantial planning and organization requirement to the definition of conspiracy. The Article shows various factors that can be used to instruct juries on whether the requirement has been met. Courts can ask whether the alleged conspiracy featured a pattern of criminal activity, a division of labor, hierarchy, and institutionalization; they can probe whether there was overt planning (a meeting or Slack channel), a lapse in time between the alleged agreement and the execution of the crime, and whether the target of the conspiracy was a sufficiently complicated crime to require planning and organization to execute it.
In the course of the Article, I argue that doctrinal scholarship has an important role to play in the effort for criminal justice reform because it can appeal to those in power who do not support criminal justice reform for humanitarian or egalitarian reasons.