Criticism and Sentencing Limits

Criticism and Sentencing Limits

The no-merger rule and the group-danger rationale behind it make cumulative punishment the prevailing position, so a conspirator whose plan succeeds may be convicted and sentenced for both the agreement and the completed crime.¹ That majority position has drawn criticism aimed at one weak point in its reasoning. The rationale justifies a separate sentence for the agreement because the partnership threatens harms beyond its immediate aim.² If the agreement had no objective beyond the single offense that was actually committed, no further harm may exist, and a second sentence then punishes one wrong twice. The objection has force because of how conspiracy to commit a crime is defined: the agreement is criminal only because its object is a crime, so the danger it carries is the risk that the object will be reached. Once the object has been reached and punished, the substantive conviction has already answered for that risk.³ The Model Penal Code adopted this critique in its sentencing provisions, yet only a minority of modern recodifications have followed the Code, and the rest set conspiracy penalties in a variety of ways.⁴ The question running through both topics below is therefore whether the agreement carried danger beyond the object crime. The next topic sets out the Code's critique and the alternative it offers, and the one after it surveys the penalty provisions that modern statutes use.

Model Penal Code Critique

The group-danger rationale justifies a second sentence on the premise that a partnership threatens harm beyond the offense it committed, and the Model Penal Code challenges that premise at the point where it is weakest. A conspiracy to commit a crime is criminal only because its object is a crime, so the danger the agreement carries is the risk that the object will be accomplished. The Code's drafters drew the consequence directly: they considered it meaningless to say that the preliminary combination is more dangerous than the forbidden consummation, because the measure of the combination's danger is the risk of that consummation.⁵ The objection rests on counting. When the plan succeeds, the substantive conviction already punishes the harm the agreement threatened, and a second sentence for the agreement punishes that same risk again. Two of the three strands of the group-danger rationale, the greater likelihood of success and the capacity for more complex ends, describe only the risk of reaching the object. For a group whose sole goal was the offense it completed, they add nothing the substantive sentence has not already covered.

The Code does not abolish cumulative sentences, and its alternative shows where the critique stops. Where the combination had criminal objectives that transcend any particular offenses committed in pursuance of its goals, the drafters thought cumulative sentences for the conspiracy and the substantive offenses ought to be permissible.⁶ The Code's sentencing provision so provides.⁷ The line follows the one strand of the group-danger rationale that still has independent content, which is the danger that a group will turn to crimes unrelated to its original purpose. A group with wider aims presents an extra danger that is real and separate from the completed offense, so a separate sentence tracks something the substantive sentence does not reach. The Code's question is therefore how far the group's objectives extended, and the mere fact that the object was completed does not answer it.

The two scenes differ in a single fact, which is whether the group's aims reached past the offense that was committed. That fact decides whether any danger remains after the substantive sentence is imposed. A second argument against cumulative punishment concerns conspiracy's preventive function. Conspiracy allows prosecution for preparatory conduct that precedes even an attempt, and it thereby works as a means of crime prevention, but the Michigan Supreme Court observed in a footnote to People v. Carter that this rationale loses force once the substantive offense has been completed.⁹ Prevention works by letting the law intervene before the harm occurs, and after the crime is finished there is nothing left to prevent. Where the object has not been reached, the agreement remains a basis for preventive intervention and for corrective treatment of persons disposed to criminality.¹⁰ The critique therefore bears only on punishment after completion, and it leaves conspiracy liability for unfinished plans untouched.

The critique has a following, but the following is small. Only a minority of modern recodifications take the Code's view, and the prevailing rule remains that a defendant may be convicted and punished for both the conspiracy and the completed offense.¹¹ Students lose this issue when they present the Code's view as the general rule, because an answer on the general rule should state the majority position first and treat the Code's limit as a minority alternative.

Statutory Penalty Variations

The no-merger rule settles whether a conspiracy conviction may stand beside a conviction for the completed crime, but it does not say how heavily the conspiracy may be punished. That second question belongs to the penalty provision of the jurisdiction's conspiracy statute. Most jurisdictions now have a general conspiracy statute with an express penalty provision, and those provisions vary considerably from state to state.¹³ Some statutes make conspiracy a misdemeanor regardless of its object, some fix the same maximum sentence regardless of the objective, and some provide different maxima depending on whether the objective was a felony or a misdemeanor.¹⁴ A conspiracy's sentencing exposure therefore cannot be read off the grade of the object crime alone, and the controlling statute has to be consulted.

The variations matter because of one feature, which is whether the statute ties the conspiracy maximum to the object offense. A statute that expresses the maximum as an equivalent or fraction of the maximum for the criminal objective, or that places conspiracy one class below the object crime, keeps the agreement at or below the penalty for the crime it aimed at.¹⁵ A statute that sets the maximum some other way can produce the opposite result, a penalty for the conspiracy greater than the permissible penalty for the crime that was its object.¹⁶ A legislature that accepts the group-danger rationale has a reason to tolerate that result, because an agreement treated as an evil independent of its object has no logical ceiling at the object's penalty.

Courts have accepted untied schemes. In Iannelli v. United States the Court recounted its earlier holding that a conspiracy can be punished more harshly than the accomplishment of its purpose.¹⁷ The Michigan statute noted in a footnote to People v. Carter likewise allows conspiracy to be punished more severely than the substantive offense in certain instances.¹⁸ Even within the federal system the ceiling depends on which conspiracy statute applies, since the statutory maximum for money laundering conspiracy under § 1956(h) is twenty years, far above the five years available under § 371.¹⁹

The two scenes differ in a single fact, which is whether the statute ties the conspiracy maximum to the object offense. The tied statute subordinates the agreement to the crime it aimed at, while the untied statute lets the group-danger rationale operate without a cap. The Model Penal Code takes the tied approach. Section 5.05(1) authorizes conspiracy penalties equivalent to those permitted for the most serious offense that was an object of the conspiracy.²² The theory has two parts. A conspirator's rehabilitative needs are essentially the same whether the plan succeeded or was intercepted, because the agreement shows the same disposition toward crime either way. And no added general deterrence would be gained by punishing beyond what the law already authorizes for the object crime, since that penalty is the threat already placed before anyone contemplating the offense.²³ Many modern recodifications follow the Code, though about as many provide that the conspiracy is one class lower than the object crime, and either route ties the maximum to the object.²⁴

This penalty rule answers a different question from the Code's rule on cumulative sentences discussed above. One asks how high the conspiracy sentence may go, and the other asks whether that sentence may be imposed alongside the sentence for the completed offense. On an exam, state the majority rule of cumulative punishment first, then answer the sentencing question from the penalty provision the facts supply. If the facts supply none, say that jurisdictions vary, identify the Code's equal-penalty approach, and note that an untied statute may let conspiracy carry a heavier penalty than the crime it aimed at. Students lose this issue when they assume the conspiracy ceiling mirrors the object offense, because that holds only where the statute or the Code ties the two together.