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Board Resolution ~ 4/19/15(2)

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning Adoption of a Conspiracy Law Policy 

Washington, DC
April 19, 2015

WHEREAS, criminal conspiracy law raises persistent problems that undermine evidentiary reliability, outcome reliability, and constitutional rights;

WHEREAS, these problems often produce wrongful convictions or true convictions for which the severity of punishment exceeds that which is called for based on the traditional sentencing goals, especially the goals of proportionality and retribution;

WHEREAS, there are many forms of criminal conspiracy law, but they all share the same underlying problems;

AND, WHEREAS, criminal conspiracy law has been criticized as broad, vague, malleable, and a service to prosecutors, not to accurate outcomes.  Reforms, therefore, should cabin the applicability of conspiracy law.

NOW THEREFORE BE IT RESOLVED that, guided by the attached report from the Subcommittee on Conspiracy Reform, the Board of Directors of the National Association for Criminal Defense Lawyers adopts recommendations to address the aforementioned flaws through reforms to criminal conspiracy law, including:

  1. Requiring an overt act for every form of criminal conspiracy law;
  2. Requiring that the overt act be a “real and substantial step toward accomplishment of the conspiratorial objective”;
  3. Requiring that overt acts be actual conduct and not constitutionally protected speech or conduct;
  4. Clarifying that the overt act must be accompanied by specific intent to commit the conspiratorial objective;
  5. Requiring hearings to determine conspiracy membership prior to trial;
  6. Limiting the conduct of co-conspirators that is attributable to defendants;
  7. Requiring new jury instructions on conspiracy;
  8. Replacing Pinkerton liability with liability set forth in 18 U.S.C. § 2.
  9. Legislatively overruling Albernaz v. United States.


BE IT FURTHER RESOLVED that criminal defense attorneys should advocate for the application of the doctrine strictissimi juris.

THEREFORE BE IT FURTHER RESOLVED that the National Association of Criminal Defense Lawyers urges Congress and the States, when drafting rules and legislation, to impose principled limits on the application of conspiracy law, taking into account the inherent evidentiary, outcome reliability, and constitutional problems associated with all forms of conspiracy. Courts should adopt better jury instructions. Finally, criminal defense lawyers should advocate for the application of strictissimi juris, as an additional structural limitation on proof of all forms of conspiracy.

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