But Conspiracy, Folks …
Don't gut conspiracy laws when we need them most.
By attaching a high, up-front penalty at an early stage in criminal planning, the offense of conspiracy gives prosecutors leverage to extract information from individuals. Not only does this help prosecutors build cases, it also makes it harder for conspirators to trust one another, since the possibility of group members defecting sows distrust throughout the group. Yet this practice of flipping, too, has been under increasing attack in recent years. If the Supreme Court in Recio continues the national trend of minimizing the harm of crimes perpetrated by groups, prosecutors will find it far more difficult to extract such information and to sow distrust within criminal enterprises.
The Court of Appeals in Recio made a dangerous decision. At least a couple of the justices last week, perhaps thinking the case ripe for a short, quick rebuke to the 9th Circuit, appeared to be dozing off during parts of the oral argument. But this is the kind of case that has real-life implications for policing and for the war on terror. The court should use the case to demonstrate the prescience of American conspiracy law and to illustrate the unique harm in criminal groups. Not only does it provide us with a practical tool for stopping terrorists, but it also recognizes the heightened moral and social dangers of group, as opposed to individual, crime.
Neal Katyal teaches law at Georgetown University. He argued the Hamdan case before the lower courts and the U.S. Supreme Court.