NCJ Number
30054
Journal
Missouri Law Review Volume: 40 Issue: 3 Dated: (SUMMER 1975) Pages: 467-486
Date Published
1975
Length
20 pages
Annotation
THIS ARTICLE DISCUSSES THE JUDICIAL OPINIONS OF JUDGE LEARNED HAND OF THE SECOND CIRCUIT CONCERNING THE MENS REA REQUIREMENT FOR CONSPIRACY WITH REGARD TO AMERICAN LAW INSTITUTE'S MODEL PENAL CODE.
Abstract
THE CODE, JUDGE HAND, AND SOME CURRENT LAW HAVE SOUGHT TO LIMIT THE CONSPIRACY OFFENSE BY FOCUSING ON INDIVIDUAL CULPABILITY. IN THIS VIEW, THAT WHICH IS NOT CRIMINAL FOR AN INDIVIDUAL CANNOT BECOME A CRIME BY VIRTUE OF A GROUP AGREEMENT TO COMMIT IT. THE AUTHOR POINTS OUT THAT THIS FOCUS ON INDIVIDUAL CULPABILITY IN ANOTHER WAY BROADENS LIABILITY AS COMPARED TO CONVENTIONAL CONSPIRACY LAW. FOR EXAMPLE, CONVENTIONAL LAW AND THE DECISIONS OF JUDGE HAND REQUIRE THAT CONVICTION BE POSSIBLE FOR AT LEAST TWO PERSONS BEFORE LIABILITY CAN BE IMPOSED ON ANY ONE INDIVIDUAL. UNDER THE CODE, HOWEVER, IF ONE PARTY IS IRRESPONSIBLE OR ACQUITTED, THE OTHER PARTY MAY NEVERTHELESS BE CONVICTED FOR CONSPIRACY. THUS, THE CODE'S FOCUS ON INDIVIDUAL CULPABILITY IMPOSES LIABILITY IN SOME CIRCUMSTANCES FORBIDDEN BY CONVENTIONAL CONSPIRACY LAW. THE AUTHOR INDICATES THAT A SIGNIFICANTLY BENEFICIAL ASPECT OF THE FOCUS ON INDIVIDUAL CULPABILITY IS THE REQUIREMENT THAT EACH INDIVIDUAL IN THE CONSPIRATORIAL AGREEMENT POSSESS THE PURPOSE OF PROMOTING OR FACILITATING THE COMMISSION OF THE SUBSTANTIVE CRIME IN QUESTION. HOWEVER, DESPITE HAND'S POWERFUL IMPACT ON THE DRAFTERS OF THE CODES. IMPORTANT DIFFERENCES REMAIN BETWEEN THEIR RESPECTIVE VIEWS ON THE MENS REA REQUIREMENT OF CONSPIRACY. FIRST, THE CODE, A REFORM DOCUMENT, GOES FURTHER IN REQUIRING PURPOSEFUL CONDUCT ON THE PART OF A DEFENDANT THAN DID JUDGE HAND. HAND WAS WILLING TO FIND AN INFERENCE OF PURPOSE IN A BROADER SET OF CIRCUMSTANCES THAN IS THE CODE. SECOND, HAND ENDORSED IMPLIED TERMS AS MANIFESTATIONS OF PURPOSE SUFFICIENT TO MEET THE MENS REA REQUIREMENT OF CONSPIRACY. ALTHOUGH THE CODE AND THE CURRENT LAW ALSO RECOGNIZE THE NECESSITY IN SOME CIRCUMSTANCES TO INFER PURPOSE THROUGH IMPLIED TERMS, IN MAIL FRAUD AND INTERSTATE COMMERCE CASES PRIME AREAS FOR APPLICATION OF IMPLIED TERMS ACCORDING TO HAND - THE CODE RECOMMENDED THAT CIRCUMSTANCE ELEMENTS SUCH AS USE OF THE MAILS OR THE CROSSING OF STATE BOUNDARIES BE CONSIDERED ONLY AS A BASIS OF FEDERAL JURISDICTION RATHER THAN AS AN ELEMENT OF THE OFFENSE. THE SUPREME COURT RECENTLY ALIGNED THE CURRENT LAW WITH THE CODE'S VIEW. THIRD, WHERE THE OBJECT OF THE CONSPIRACY IS THE SAME AS THE CONDUCT CONSTITUTING THE SUBSTANTIVE CRIME IN STRICT LIABILITY CASES, HAND WOULD ALLOW PROSECUTION. HE REASONED THAT THE PURPOSE TO COMMIT THE ACT EXISTED EVEN IF THE KNOWLEDGE THAT THE ACT WAS CRIMINAL DID NOT. THE CODE FAILED TO TAKE A FIRM STAND ON STRICT LIABILITY CRIMES, BUT LEANED IN THE SAME DIRECTION. FOURTH, UNDER A RATIFICATION THEORY, HAND AND THE CURRENT LAW WOULD ALLOW A LATE ENTRANT TO BE HELD ACCOUNTABLE FOR PREVIOUSLY CONCEIVED PLANS IF THEY FELL WITHIN THE COMMON PURPOSE OF HIS AGREEMENT AND THE PREVIOUS PLANS AND THEIR IMPLICATIONS WERE KNOWN TO HIM. THE CODE INDICATED THAT IF THE LATE ENTRANT'S CONSPIRACY DID NOT PROMOTE OR FACILITATE THE PREVIOUS CONSPIRACY, HE WOULD NOT POSSESS THE REQUISITE PURPOSEFULNESS FOR CONVICTION ON THE PREVIOUS CONSPIRACY. HAND AND THE CURRENT LAW FOCUS ON THE INDIVIDUAL IN THIS SITUATION BUT REQUIRE LESS THAN THE CODE FOR IMPOSITION OF LIABILITY. THE AUTHOR SUGGESTS THAT THE EMPHASIS ON INDIVIDUAL CULPABILITY, WHICH JUDGE HAND AND THE CODE ESPOUSE, WOULD PREVENT THE TENDENCY UNDER PAST AND PRESENT LAW TO USE THE FEAR OF GROUP CONDUCT TO WEAKEN MENS REA REQUIREMENTS AND PROCEDURAL SAGEGUARDS FOR THOSE ACCUSED OF CONSPIRACY. (AUTHOR ABSTRACT)