White-Collar Crime

The Conspiracy Conspiracy

This Friday, May 15 NACDL is having a one-day conference on conspiracy law.

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For those worried about the breadth of federal criminal law, there is probably no single greater offender than our sweeping conspiracy crimes. Sure, there are too many regulatory offenses and there are too many overlapping and ambiguous other criminal statutes on the books. But conspiracy is in a class by itself.

In many cases, the government only has to prove that two people got together and agreed they ought to commit a crime — they don’t have to have actually done anything.

Take the crime of conspiracy to commit bank fraud, for example. If, on a lazy Sunday afternoon, Larry turns to Ted and says “Hey, lets go try to get a bank to give us money using fake checks.” (They, of course, would have to go the next day — banks are closed on Sundays). Suppose Ted says “Sure, there’s nothing good on TV anyway.” (I am assuming Larry and Ted do not have Netflix). Then, even if Larry and Ted don’t get around to doing anything the next day, that’s enough for Larry and Ted to have conspired to defraud a bank.

That’s because conspiracy to commit bank fraud is one of the many conspiracy offenses that doesn’t require an overt act — it doesn’t require a person to actually do anything. The agreement to commit a crime is crime enough.

That seems like a lot of punishment for conversation on a couch.

Or how about this one — Mary and Emily are talking about how things aren’t going in the direction they’d like in the United States. They don’t like Hillary and they don’t think the Republicans will nominate someone they like either. As they talk about it, they both agree that ISIS has some really good ideas for government reform and think that the United States would be better served by a violent overthrow of the government.

They agree to start sending money to ISIS (but they balk at the logistical hurdles and don’t actually send the cash) and post on their Facebook pages the following quote:

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“[W]hat country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms. . . .The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”

They’ve completed the crime of conspiracy to provide material support to terrorists and their Facebook post — quoting Jefferson — would be used as evidence against them at trial if they’re charged.

I can see how Jefferson may not be DOJ’s favorite founding father, but we’re a bit through the looking glass when quoting him is essentially evidence of sedition.

Happily, the National Association of Criminal Defense Lawyers is doing something about conspiracy and its breadth. NACDL is a fantastic organization doing a lot on this and other issues. If you care about how folks are treated in the criminal justice system or about government power, you should join and get involved.

First, on this Friday, May 15, NACDL is having a one-day conference on conspiracy law. It looks to be a great program that marries both help for folks who practice law in this area as well as what’s likely to happen in the future with conspiracy law.

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Professor Steve Morrison and UberLawyer John Cline will give an overview of conspiracy law and how it works. There’s a session on jury instructions and pretrial motions in conspiracy cases, as well as a discussion of the unique evidentiary problems in conspiracy cases.

Though, perhaps most exciting for those interested in the policy issues surrounding conspiracy offenses, there’s a session on the future of conspiracy law that includes none other than Judge Jed Rakoff who is taking time off of his day job writing columns on overcriminalization and mass incarceration for the New York Review of Books to talk about this important topic.

For those of us who can’t make it to New York on Friday — including DC residents too devoted to our city’s Bike to Work Day to leave town — NACDL has released a white paper on the problems with conspiracy law and concrete steps for change. The white-paper gives a comprehensive look at what’s wrong with conspiracy law and what ought to change in order to rein the doctrine in. (and, in the interest of full disclosure, I was one of the co-authors of the white paper)

The link to the white paper is here.

The times they might be a changin’. You should get involved.

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