Thursday, April 01, 2004

Conspiracy and Regulatory Offenses

As more and more jurisdictions move away from the Powell doctrine and hold that ignorance of the law is no defense to a conspiracy charge, it leaves open the possibility of being punished twice for an unintentional crime. While strict liability has its appeal with respect to certain offenses, it seems to be quite unfitting for conspiracy. The whole notion of conspiracy revolves around a premeditated plot to commit an act. Yet, when that act is not subject to a mens rea requirement, there is not any notion of evil intent. Therefore if we import the same strict liability construct to the conspiracy to commit aspect of the crime, the act itself is proof of a conspiracy.

While there may be times that such a scheme is sensible, imagine the following--

The state of Zed requires that mattress tags not be cut off and to do so is a strict liability crime. X and Y are a couple who live in Zed and have a mattress. X holds the tags and Y cuts them off with scissors. Under the laws in most jurisdictions X and Y would be chargeable not only with cutting of the tags, but also of conspiracy to cut the tags.

Perhaps the solution lies in the sentencing decisions of judges who will hopefully see the ridiculousness inherent in similar situations. More appropriately though would be for legislatures to eliminate conspiracy for certain regulatory crimes.


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