Requiring Proof of Conspiratorial Dangerousness

It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil” that justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Neal Kumar Katyal’s defense of conspiracy law rests on this assumption, but Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true. This Article argues that to impose criminal liability, prosecutors ought to be required to prove a conspiracy’s dangerousness. In doing so, it also provides insight into conspiracy law that Katyal and Goldstein leave unilluminated. Their opinions on conspiracy’s dangerousness diverge because they assume different group data sets: Katyal views only criminal conspiracies, and Goldstein views groups in general. This Article applies a neutral, systemic analysis where theirs do not and thus generates workable, effective reforms where theirs cannot.

To support its argument, the Article places the question of conspiratorial dangerousness in the relevant history. It then establishes a theory of group conduct and applies the Condorcet Jury Theorem and theory of group polarization to demonstrate that a required showing of dangerousness could increase the criminal process’s outcome reliability, enhance the law’s legitimacy, conserve judicial resources, and improve public safety.