Concept
The Model Penal Code Contrast
Plurality: Two Culpable Conspirators and the Bilateral Requirement
The Model Penal Code Contrast
Each plurality limit in this chapter has turned on one question: does a second guilty person stand on the other side of the agreement? The feigning officer, the insane partner, the acquitted co-conspirator, and the husband and wife treated as one person all matter at common law because the conviction depends on counting guilty minds. The Model Penal Code removes the count from the definition, and the contrast shows what each earlier rule was doing. The first part below states the Code's definition and the reasoning behind it, and the second part addresses how to tell which approach a particular jurisdiction follows.
The Unilateral Definition
Under Model Penal Code § 5.03(1), a person is guilty of conspiracy with another person or persons to commit a crime if he acts with the purpose of promoting or facilitating its commission and agrees with the other person or persons that they or one or more of them will engage in conduct constituting the crime, or an attempt or solicitation to commit it.1 This is the unilateral approach, so called because the definition describes what one defendant intended and did, and liability is assessed defendant by defendant. The bilateral approach defines the offense as a meeting of two guilty minds, which makes each defendant's guilt depend on the other's. The Code's grammatical subject is the individual, and the two elements it lists, purpose and agreement, are both facts about that individual.
Each element can be located in the defendant alone. The purpose element asks whether the defendant wanted the crime to be committed, and nothing in the text asks what the partner wanted. The agreement element asks whether the defendant actually agreed with another person that conduct constituting the crime would occur, so a person who plans a crime alone and tells no one has not conspired, because there is no one to have agreed with.2 What drops out is any requirement that the partner also be guilty. The Code therefore keeps the agreement requirement and discards only the second-guilty-party requirement.
The reason for this design lies in how the Code measures danger. A person who firmly purposes a crime and commits to it with another has shown the same dangerousness whether the partner was sincere, sane, or later convicted. Those circumstances are also largely outside the defendant's control and often outside the defendant's knowledge, since no one can tell whether the person who accepted a proposal is secretly cooperating with the police, and the verdict on the partner is decided later, in a trial that may hear different evidence. Under the bilateral rule these accidents decide whether the defendant is guilty, while under the Code they decide nothing. The price of the change is the group-danger rationale, which treats two committed minds as more threatening than one. The Code relies instead on the inchoate rationale of stopping a culpable individual early, before the crime is attempted or completed.
Running one set of facts under both rules makes the difference visible.
The three outcomes converge because the Code's text asks only about the defendant's purpose and agreement, so a partner's pretense, incapacity, or verdict never enters the analysis.3 The same reasoning explains why the other plurality limits lose their footing. The text contains no marital exception, so the legal-unity fiction has nothing to attach to, and it does not ask how many participants the substantive offense requires, so Wharton's rule does not arise from the definition itself.4 Students lose the unilateral approach when they conclude that the Code punishes purpose alone, because the definition still requires that the defendant agree with another person.
Identifying the Governing Approach
A fact pattern rarely announces which definition governs, so that question comes first, and the statute's wording is the best evidence. A statute that makes the offense turn on two or more persons conspiring puts the plurality into the definition itself, which means it asks for two people who genuinely conspire, the common-law approach. A statute built on the Code's pattern has an individual as its subject, a person who, with the required purpose, agrees with another, and so looks to the defendant alone.6 Wording is reliable because the two approaches give opposite answers to whether the definition's subject is the group or the individual, and a legislature that has answered the question will usually show the answer in the subject of the sentence.
Other clues point in the same direction but carry less weight. A clause providing that it is no defense that the other alleged conspirator was acquitted, lacked capacity, or was never prosecuted removes the dependence on the partner's guilt, which supports a unilateral reading. The discussion of acquittals above noted, however, that such a clause can have a narrow purpose and still sit inside a statute read as bilateral. Borrowed vocabulary raises a similar caution. A legislature may copy the Code's phrase about a person who agrees with another, and a court may still read the word agrees to require a genuine meeting of minds, which a feigning partner never joins. A court reading it that way applies the bilateral rule even though the sentence has the Code's shape, so the wording is strong evidence that can be overcome by an interpretation the stem supplies. Students lose this issue when they treat one borrowed phrase as proof of a unilateral statute without reading the rest of the provision and any stated interpretation.
The Unilateral Definition
Model Penal Code § 5.03(1) defines conspiracy by looking at one defendant at a time. A person is guilty of conspiracy with another person or persons to commit a crime if the person acts with the purpose of promoting or facilitating its commission and either (a) agrees with the other person or persons that they or one or more of them will engage in conduct constituting the crime, or an attempt or solicitation to commit it, or (b) agrees to aid the other person or persons in planning or committing the crime, or an attempt or solicitation to commit it.8 The first form fits a defendant who joins a plan that the offense will be carried out, and the second fits a defendant whose agreement is to help with its planning or execution. Either way, the definition has two ingredients, a purpose that the crime be committed and an agreement with another person, and both are facts about the defendant.
This is the unilateral approach, and the name describes where the definition looks. The common-law definition asks whether two guilty minds met, so each defendant's liability rests partly on the other's mental state. The Code's drafters framed the offense instead around the conduct that suffices to establish the liability of any given actor, rather than the conduct of a group to which that actor is said to belong.9 One consequence is that the guilt of a culpable conspirator does not depend on whether the people with whom he conspired have been or can be convicted. Section 5.04(1)(b) states the point for one important class of partners: it is immaterial to a person's liability that the person with whom he conspires is irresponsible or has an immunity to prosecution or conviction.10 The same result follows for a partner who does not really intend the crime, such as an undercover officer, because nothing in § 5.03(1) asks about the partner's sincerity.11
The reason for this design lies in what the Code treats as the basis of conspiracy liability. A defendant who purposes a crime and commits to it with another person has supplied what the drafters described as "unequivocal evidence of a firm purpose to commit a crime."12 That evidence is the same whether the partner was sincere or secretly cooperating with the police, because it consists of the defendant's own words and conduct. The drafters conceded that a feigned agreement leaves the project's chances of success no better, and may doom it, yet they found the defendant's culpability unchanged.13 A second reason concerns fortune. Under the bilateral rule, the defendant's guilt turns on facts the defendant cannot see, such as whether the person who accepted the proposal was working for the police, and on facts decided later, such as a verdict reached in a separate trial on different evidence. The Code treats unequal outcomes among alleged conspirators as a lesser evil than granting one criminal immunity because justice may have miscarried in dealing with another.14
Decided litigation raises the same question. In Garcia v. State, an Indiana defendant who wanted her husband killed handed a plain-clothed detective $200, a photograph of her husband, and a record of his daily habits, after an informant introduced them, and she agreed to pay the balance when the job was done; the informant testified that he only feigned acquiescence and never intended to carry out the plan.15 The court framed the issue as whether Indiana's new penal code adopted the Code's unilateral concept or kept the traditional bilateral one, under which a feigning partner has generally been held to defeat any conspiratorial agreement.16 The acquittal illustration earlier in this chapter shows the same divergence. John and his brother Lonny were alleged to have agreed to murder a judge, and Lonny was not convicted. In a bilateral jurisdiction John's conviction must be reversed, but under the Code it can stand, because John believed he had agreed with another person to commit the murder and the definition looks to his own agreement and purpose.17
The label unilateral describes whose mind the definition examines, and it leaves the agreement requirement in place. A person who plans a crime alone and tells no one has no one to have agreed with, so the definition is not met.18 A person who only assists is in the same position when the assistance comes without any agreement, since both the purpose and the agreement are required of the defendant and only the partner's status drops out. The partner's lack of purpose can matter in one direction, because a feigning officer who never had the intent to commit the crime is not guilty of conspiracy even though the defendant is.19
The Code's approach has drawn sustained criticism, and the debate explains why jurisdictions differ. Critics make three objections: that it departs without justification from conspiracy's group-danger rationale, which depends on actual collaborative effort; that it invites police to manufacture crime by sending agents to enter unilateral conspiracies; and that it is unnecessary, because solicitation and attempt already reach a dangerous individual, at least when an undercover agent is the only other party.20 In a Washington prosecution of Herbert Pacheco, who planned a murder for money with a government agent, the majority relied on the last two points. It read the state's statutes to require a genuine agreement with at least one other coconspirator and reversed his convictions, observing that the punishable conduct in a unilateral conspiracy will almost always satisfy the elements of solicitation or attempt.21
Supporters answer each point. By analogy to contract law, a mental reservation by one party to an express acceptance, as an undercover officer would surely have, should not prevent a finding of agreement. The question then becomes whether the officer has a valid defense such as statutory privilege or necessity, or whether the defendant has an entrapment defense, and exposure to those questions might make police think harder about their proper role.22 The dissenting judge in the Washington case added that group danger is only one rationale for conspiracy statutes, that the Code decisively rejected it as the basis of liability, and that entrapment, together with the statute's substantial-step requirement, restricts abuse.23 The approach had been adopted in whole or in part in at least 26 states by the time of the Indiana decision above, so a student should expect to meet it often.24
Students lose this issue when they read unilateral to mean that no agreement is needed, because a defendant who never agreed with anyone has not conspired under the Code.
Identifying the Governing Approach
The bilateral and unilateral definitions give opposite answers when a partner pretends to agree, cannot form criminal intent, or is acquitted, so none of those facts can be analyzed until the governing approach is known. The facts of the agreement do not reveal which approach applies. The answer comes from the jurisdiction's own conspiracy provision, and the skill is to read it as a court would: begin with how the defining sentence is built, then check the rest of the statute and any judicial interpretation for something that changes what the opening words seem to say.
The common-law approach is the baseline, and the federal courts follow it, as do some states.26 Statutes that carry it forward usually make a group the subject of the offense, and California's begins with the words “If two or more persons conspire.”27 That wording matters because it writes plurality into the definition itself. A partner who only pretends to agree, or who cannot form criminal intent, is not someone who conspired, so the count of two is never reached, and a defendant whose only partner is of that kind has not met the definition. The Code's pattern changes the grammar. It makes one person the subject, a person who acts with the purpose of promoting or facilitating a crime and who agrees with another, and so directs the court's attention to the defendant's own purpose and agreement.28
The second clue is a clause declaring that certain facts about the other alleged conspirator are no defense. Indiana's provision in Garcia v. State lists non-prosecution, non-conviction, and acquittal of the other person among them, and Washington's statute adds that the other person lacked the capacity to commit an offense.29 Among modern recodifications, a substantial minority say that acquittal or conviction of a different offense is no defense, a greater number say that lack of capacity is no defense, and a few go so far as to say that a feigned agreement is no defense.30 Such a clause is strong evidence of a unilateral design because each item on the list is a fact about the partner that the bilateral rule would treat as decisive, and the legislature has told the court to disregard it. The clause reaches only what it names, however. A statute that lists acquittal and incapacity but says nothing about a partner who pretended to agree has neutralized two of the bilateral rule's three consequences, and the third is left to the meaning of the word agreement.
That gap is where the Washington Supreme Court's decision is instructive, because the statute there had the Code's grammar and a no-defense list, and the court still required a genuine agreement. In State v. Pacheco, a Clark County deputy sheriff named Herbert Pacheco agreed with Thomas Dillon to protect Dillon during two staged cocaine sales for $500 each, and later offered to kill the supposed buyer for $10,000 and went to a motel lobby carrying a loaded gun.31 Dillon had volunteered to inform on Pacheco to the FBI, and the sheriff's office and the FBI had designed the sequence, so the only person Pacheco agreed with was an agent of the government, and the question on review was whether a conspiracy exists on those facts.32
The State argued that Washington's statute followed the Code. The statute made a person guilty of conspiracy who, with intent that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause that conduct, when any one of them takes a substantial step. It then listed as no defense that the other person was not prosecuted or convicted, was convicted of a different offense, was not amenable to justice, was acquitted, or lacked capacity.33 On the clues described above, the statute looks unilateral, and the State reasoned that actual agreement was therefore unnecessary so long as the defendant believed another was agreeing.34
The court rejected that reading for reasons that reach well beyond Washington. The statute required an agreement without defining the word, and courts presume that a legislature using an undefined term intends what the term meant at common law. At common law, and in the dictionary, an agreement is a meeting of two or more minds, and it is impossible to conspire with oneself.35 The no-defense list did not displace that meaning. It removed the need to convict the partner, so that failing to convict the accused's sole coconspirator would not prevent proof of an agreement against the accused, but it did not show an intent to abandon the requirement that two criminal participants reach an underlying agreement.36 The court therefore held that the statute requires the defendant to reach a “genuine agreement with at least one other coconspirator,” and it reversed both conspiracy convictions.37
The presumption behind that result follows from how legislatures draft. A criminal code is written against a background of settled doctrine, and drafters do not restate every background rule, so a provision that departs from the background is expected to say so plainly. Silence on the point therefore means the old rule stays, and the court demanded a clear signal before concluding that a conviction could rest on an agreement with someone who only pretended to join.38 The cost of that caution is small, because the same court observed that the punishable conduct in a unilateral conspiracy will almost always satisfy the elements of solicitation or attempt, so the State can still punish a defendant who attempts agreement with an undercover officer.39
Pacheco also shows the narrow way in which such a statute is unilateral. The no-defense clause does real work, and a twin of the case shows what it accomplishes.
Other decisions show that the construction question recurs whenever a legislature rewrites a conspiracy statute. In Garcia v. State, discussed earlier in this chapter, the court framed the issue as whether Indiana's new penal code adopted the Code's unilateral concept or retained the traditional bilateral one, and the new provision already listed the other person's non-prosecution, non-conviction, and acquittal as no defense.40 In People v. Foster, the Illinois legislature had replaced a statute that spoke of two or more persons with one saying a person commits conspiracy when, with intent, he agrees with another. The State argued that the deletion showed an intent to adopt the unilateral theory.41 The court was impressed by that logic but noted that the committee comments never mentioned so profound a change, that a solicitation statute already covered nearly every case a unilateral theory would reach, and that the no-defense subsections had the limited purpose of curing the problems of separate trials. It added that a unilateral reading would have made those subsections unnecessary, and, applying the rule that statutory ambiguities are resolved in favor of defendants, held the statute bilateral.42 A no-defense clause can thus cut either way, depending on what purpose the legislature appears to have had in writing it.
Students lose points on this issue when they treat a no-defense list as though it also dispensed with a genuine agreement, since the list covers only the partner characteristics it names and says nothing about whether the agreement itself must be real.