But Conspiracy, Folks …

Don’t gut conspiracy laws when we need them most.

Last week, the Supreme Court heard argument in United States v. Recio, one of the most important conspiracy cases to hit the court in 25 years. The issue in this seemingly dry case is the kind of thing we law professors love to use to torment our students: If A conspires with B to commit a crime, but that crime is in fact impossible to commit, then did A really commit the crime of conspiracy? If you ditch the legal jargon, the case revolves around one simple question: When people act in groups, should the law treat them differently than when they act as individuals? The answer, always important, takes on additional meaning after Sept. 11.

In Recio, a Nevada police officer stopped a truck driven by two men—Manuel Sotelo and Ramiro Arce. The officer discovered several million dollars’ worth of marijuana and cocaine in the truck. Like all good lawbreakers, Sotelo and Arce initially claimed not to know about the drugs but later admitted that they had agreed to drive the truck to the Karcher Mall in Nampa, Idaho. And, like any really good lawbreaker, Arce cooperated with the government in a sting operation. The truck was driven to Idaho and parked at the mall, where Arce called a pager number as arranged. When someone returned the page, Arce said the truck was at the mall. The voice on the other end said he would “call a muchacho to come and get the truck.” Three hours later, a Mr. Recio emerged from a blue car, jumped into the truck, and started driving away. The driver of the blue car, Mr. Lopez-Meza, drove off as well. At that point, the cops stopped both vehicles and arrested Recio and Lopez-Meza.

A grand jury indicted both Recio and Lopez-Meza for conspiracy to distribute drugs, and both argued that they could not have conspired because the government’s involvement made it technically impossible for them to succeed in the conspiracy’s goal. The U.S. Court of Appeals for the 9th Circuit—so often the wackiest court in the land—sided with the defendants. Before the Supreme Court, the federal government argued that these defendants agreed to do something illegal, regardless of whether the crime was technically impossible once the sting was in place. The defendants claimed that this highlights how absurd conspiracy law has become: There can still be a conspiracy without even a possibility of a crime.

At stake here is nothing less than a cardinal principle of the criminal law: Does the agreement to commit a crime pose a danger to society, even when the agreement can’t succeed? The traditional legal answer has always been “yes.” Unlike most other criminal offenses, which require an act that produces a direct harm, the crime of conspiracy happens at or near the moment that Person A agrees to commit a crime with Person B. The crime still occurs even if the object of the conspiracy is never completed. If you agree to rob a bank with your best friend but don’t carry it out, you still commit an actionable conspiracy that can land you in jail.

But conspiracy law has fallen out of favor in both the federal and state criminal codes. A diverse coalition of judges and academics over the past half-century has had tremendous success in urging judges and legislatures to cut back on the doctrine. In fact, probably the leading scholarly article in the area of conspiracy is titled “The Unnecessary Crime of Conspiracy.” The Model Penal Code, drafted in the 1950s and essentially a blueprint for state law, largely rejects the notion of special punishments for group behavior. And more recently, the same coalition of conspiracy foes won a largely unreported success in the U.S. Sentencing Commission, which declared that under federal law there is no extra punishment for acting as part of a group in many circumstances. The argument against treating group agreements to commit crimes as crimes in themselves is that the harm from a group is limited to its conspiratorial objective; if that objective proves impossible, then the conspiracy simply poses no danger.

At oral argument last Tuesday in Recio, it was suggested that the impact of impossible conspiracies may be akin to the harm that comes from using a voodoo doll in an attempt to kill someone. No one is really hurt, thus no crime has occurred. But if the Supreme Court adopts this popular line of thinking, it will profoundly damage our government’s ability to thwart group crime. Groups pose special dangers, and the Supreme Court should reject the modern trend embodied in the 9th Circuit’s Recio decision.

This trend is particularly odd when one considers the rich evidence that has emerged over the past 50 years, as a variety of social psychologists have sought to understand the dynamics of group behavior. As anyone who has ever been to a fraternity party realizes, people in groups tend to subordinate themselves to the group’s preferences. One of the earliest of these studies showed that if you ask a person how long a line is, then have several confederates state a wildly off-base answer in his presence, over one-third of the time he will give an obviously wrong answer, too. Group members tend to be more loyal, listen more to each other, and are more likely to reward one other.

Social psychologists have also found that at times people in groups tend to take more risks than they would as individuals. In a study done by a graduate student named J.A. Stoner 40 years ago, people were asked whether they would invest in a high-return but potentially risky stock or a lower-return and safer one. Stoner found that when the questions were given to groups instead of individuals they preferred the former, leading him to dub the phenomenon a “risky shift.” Later work shows that this tendency to agree to take greater risks is part of a larger phenomenon of extremeness that manifests itself in groups. And more recent research, both in the psychological field as well as by the Nobel-Prize-winning economist George Akerlof, has confirmed that groups create a special, social identity that can lead individual members to behave against their own self-interest. Yet lawyers, prompted by University of Chicago’s Cass Sunstein, are only beginning to understand the implications of this rich body of psychological research.

The odd thing is that conspiracy law is one of the few places in which American law has been ahead of—rather than behind—interdisciplinary scholarship. Indeed, in 1961 in Callanan v. United States, the justices’ classic approach to conspiracy recognized what social science now confirms: that the harm committed by people in groups eclipsed that of lone individuals. Observed that court: “Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.” 

Today more than ever, conspiracy laws are vital in the war against terrorism, both because they permit the government to intervene at the earliest stages of criminal planning and because they recognize and single out group activity for special punishment. Perhaps the most important practical feature of all is that conspiracy law facilitates the “flipping” of terrorists and other criminals. As everyone knows from television, suspects are placed in separate rooms where detectives tell them that their only hope of avoiding a brutal sentence is to give evidence against the other conspirators. A branch of economics, game theory (featured in the book and movie A Beautiful Mind), uses this practice as the paradigm example of how to induce generally loyal parties to defect against each other.

By attaching a high, up-front penalty at an early stage in criminal planning, the offense of conspiracy gives prosecutors leverage to extract information from individuals. Not only does this help prosecutors build cases, it also makes it harder for conspirators to trust one another, since the possibility of group members defecting sows distrust throughout the group. Yet this practice of flipping, too, has been under increasing attack in recent years. If the Supreme Court in Recio continues the national trend of minimizing the harm of crimes perpetrated by groups, prosecutors will find it far more difficult to extract such information and to sow distrust within criminal enterprises.

The Court of Appeals in Recio made a dangerous decision. At least a couple of the justices last week, perhaps thinking the case ripe for a short, quick rebuke to the 9th Circuit, appeared to be dozing off during parts of the oral argument. But this is the kind of case that has real-life implications for policing and for the war on terror. The court should use the case to demonstrate the prescience of American conspiracy law and to illustrate the unique harm in criminal groups. Not only does it provide us with a practical tool for stopping terrorists, but it also recognizes the heightened moral and social dangers of group, as opposed to individual, crime.