Conspiracy, Attempt and Overt Actions

The criminal law seeks to make a distinction between conspiracy and attempt. While many jurisdictions now make an overt action a requirement for conspiracy, it still falls short of the sort of activity required to produce an attempt. The overt act requirement for conspiracy may be satisfied by an activity that might be categorized as equivocal or preparatory. This sort of action is used to show that the conspiracy has somehow been set in motion.

For example, X and Y are conspiring to kill Z. X goes to the store to purchase a large hunting knife, that ma be used in the plotted killing. It can be said that X has set the conspiracy in motion with his purchase.

But what purpose does this serve? For if their plot is actually completed, then the murder of Z will be the primary evidence of the conspiracy. And, if the plot is thwarted prior to any attempt on Z, then is it really important to punish X and Y (assuming that the thwarting happens well before any damage has been done)? A better question might be is the value of punishing X and Y greater than the risk that we are punishing someone for no greater offense than to have talked about killing a third person and buying a hunting knife.

When we seek to punish for conspiracy well before any substantive criminal activity is accomplished we run the substantial risk of punishing innocent people. The further away from the attempt to commit the substantive crime that interdiction takes place, the more tenuous the relationship is between the criminal thoughts and criminal intent. Of course, by moving the line closer towards the criminal action we run the equal risk if failure to interdict and thus a greater risk of injury.