Abolish Conspiracy

*Associate Professor of Law, Northern Illinois University College of Law. Thanks to Jocelyn Simonson, Cynthia Godsoe, and Guha Krishnamurthi for comments, suggestions, and inspiration.Show More

Criminal conspiracy seems as American as apple pie. Every state criminalizes conspiracy, and there are dozens of federal conspiracy statutes. The crime of conspiracy is the darling of prosecutors across the political spectrum. It has been wielded against poor Black teens and White TV moguls; anti-carceral and anti-abortion activists; rap stars and a President. Conspiracy’s hold on U.S. criminal systems is firm.

I seek to break that hold. I contend that the crime of conspiracy promotes surveillance of, and violence against, poor people of color. It is a menace to freedom of expression, the rights of criminal defendants, and the rule of law. Its purported benefits remain unsubstantiated; its costs have been understated when they have not been outright ignored. And it can’t be reformed. It should be abolished.

This story begins in the Star Chamber and culminates in present-day Georgia and Chicago. It is the story of nineteenth-century labor strikes and twenty-first-century drill rap; Emma Goldman, Angela Davis, Young Thug, and Lil Durk; the Smith Act and the RICO Act; the Conspiracy Eight and Cop City. I uncover and build upon a tradition of conspiracy criticism which grew out of left social movements. Finding that these movement critiques of conspiracy have not only been vindicated but exceeded by experience, I re-up, update, and double down.

Introduction

We all have a job to combat the conspiracy
– Gang Starr, “Conspiracy” (1992)

Conspiracy is all around us. Every state makes it a crime to agree to and act in furtherance of plans to accomplish unlawful goals, and there are dozens of federal conspiracy statutes. The crime of conspiracy is the darling of prosecutors across the political spectrum. It has been wielded against poor Black teens and White TV moguls; anti-carceral and anti-abortion activists; rap stars and the President of the United States. Conspiracy’s hold on U.S. criminal systems is so firm that it is difficult to imagine them without it.

This Article seeks to break that hold. The criminalization of conspiracy promotes surveillance of and violence against poor people of color. It is a menace to free speech, the right of a criminal defendant to confront adverse witnesses, and the rule of law. The benefits of conspiracy criminalization have been persistently exaggerated; the costs have been consistently understated. And we lack grounds for confidence that conspiracy can be made to do more good than harm. Accordingly, the crime of conspiracy should be abolished.

My call for conspiracy abolition is radical but not unprecedented. I uncover and build upon conspiracy criticism that grew out of social movements in the late nineteenth century. Finding that this criticism has not merely been vindicated but exceeded by experience, I re-up, update, and double down.

I begin by spotlighting three Georgia conspiracy prosecutions which drew national attention and critical commentary in recent years. The first is the prosecution of rapper Jeffery Williams (known as “Young Thug”) and twenty-seven other people associated with an Atlanta-based hip-hop label, Young Stoner Life Records, for their alleged participation in a violent street gang. The second is the prosecution of Donald Trump and eighteen other people for collaborating to overturn the results of the 2020 presidential election. Finally, I discuss the prosecution of sixty-one activists for organizing to prevent the construction of a police training facility that they have termed “Cop City.” I use these prosecutions to introduce longstanding popular anxieties about conspiracy.

Part II provides a genealogy of conspiracy criminalization and criticism. I trace conspiracy’s Anglo-American roots and then detail how conspiracy became notorious for its late nineteenth-century use against the labor movement. Labor organizers and movement lawyers denounced conspiracy as a weapon of class warfare, an instrument of censorship, and a betrayal of the rule of law. In the mid-twentieth century, left antiwar and racial-justice activists identified conspiracy as a means of suppressing transformative social change and enforcing White supremacy.¹ 1.I capitalize “Black” when referring to African American identification and members of other African diaspora culture and “White” when referring to non-Black individuals of European ancestry. I agree with Etienne Toussaint that “[w]hile race as a tool for human categorization is a social construction that too often essentializes and oversimplifies, racial categorizations are employed with tangible effect in the United States to exploit, suppress, and dehumanize subordinated populations.” Etienne C. Toussaint, Tragedies of the Cultural Commons, 110 Calif. L. Rev. 1777, 1779 n.4 (2022).Show More Conspiracy skepticism became mainstream within legal scholarship, and several Supreme Court Justices expressed it.

Part III describes how conspiracy was entrenched. Despite some occasional misgivings about particular statutes—most notably, the Racketeer Influenced and Corrupt Organizations (“RICO”) Act² 2.See generally 18 U.S.C. §§ 1961–1968.Show More—the Supreme Court eventually made its peace with conspiracy criminalization. It even adapted constitutional doctrine to accommodate conspiracy’s expansion. Law professors and judges used tools from law and economics to elaborate consequentialist arguments for conspiracy. They claimed that conspiracy deterred the formation and hastened the fragmentation of criminal groups that posed distinctive dangers.

Part IV critiques normative conspiracy theory. I catalogue conspiracy’s underappreciated social costs. These costs arise from surveillance, infiltration, violence, and censorship, all of which have a disparate impact on poor people of color. That disparate impact threatens to estrange people from and delegitimize civil-social institutions that are perceived as excluding them. I go on to question the claimed benefits of conspiracy, finding that these claims rest upon unsubstantiated and dubious empirical premises.

Part V considers objections to abolition. Reforms that are aimed at particularly injurious features of conspiracy might be better than nothing. But we should have no illusions that conspiracy can be made a social positive.

1.  I capitalize “Black” when referring to African American identification and members of other African diaspora culture and “White” when referring to non-Black individuals of European ancestry. I agree with Etienne Toussaint that “[w]hile race as a tool for human categorization is a social construction that too often essentializes and oversimplifies, racial categorizations are employed with tangible effect in the United States to exploit, suppress, and dehumanize subordinated populations.” Etienne C. Toussaint, Tragedies of the Cultural Commons, 110 Calif. L. Rev. 1777, 1779 n.4 (2022). ↑
2.  See generally 18 U.S.C. §§ 1961–1968. ↑