Conspiracy And Complicity
Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for even reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that
criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as part of a larger division of labor to which the defendant had also contributed his efforts [Developments in the Law, p. 998].
This rationale, however, becomes attenuated in many situations in which the doctrine is applied. For example, in the leading case of Pinkerton v. United States, 328 U.S. 640 (1946), a defendant who had earlier conspired with his brother to operate an illegal still was held liable for his brother's later acts of operating the still, despite the fact that by the time those acts were committed, the defendant was in prison for another offense.
Although dilution of the strict concepts of causality and intention may be required to cope with the dangers of organized crime, serious objections have been raised to this aspect of the law of conspiracy. Liability for substantive crimes is predicated on the loose evidentiary standards of conspiracy law; liability attaches for crimes not actually intended or even necessarily foreseen; and holding each member of a conspiracy liable for all crimes committed by the group without regard to the character of that person's role within the group yields overly broad liability without penal justification. This is particularly true in those jurisdictions that allow the finding of a single conspiracy, rather than several smaller ones, in cases of large, sprawling, and loosely confederated criminal enterprises. As a consequence, some states, following the lead of the Model Penal Code, have eliminated this feature of traditional conspiracy by declaring that one is liable for the criminal actions of another only if he is made liable by the doctrines of the law of complicity.