On Tuesday, October 27, Professor Evan D. Bernick of Northern Illinois University College of Law spoke about his article “Abolish Conspiracy,” published this June by the Virginia Law Review. In a Q&A with VLR Articles Editor Margaret Moran ’27, Bernick discussed his paper, which charges that the crime of conspiracy has been used to impinge on the rights of criminal defendants, quash free expression, and target groups disfavored by governments, with little benefit to society.
“The thesis of the article is simple: The crime of conspiracy ought to be abolished. And what do I mean by conspiracy? I mean, very specifically, a crime that arises from agreeing to commit a crime,” said Bernick.
Bernick charted the history of conspiracy, which originated as something similar to malicious prosecution, but which by the 17th century had drifted into the idea of “working together to do something unlawful.” By that point, conspiracy became “a catchall way to attack what were perceived to be dangerous groups.” Conspiracy tended to operate against particular groups. “We’re targeting labor activists . . . Wobblies . . . suspected Communists . . . racial justice advocates . . . and then anti-ICE protestors most recently.” Conspiracy has always been like that, and because it has always been like that, there’s no particular reason to think it can be anything other than that.” With minimal evidence that conspiracy serves as a deterrent, and plenty of evidence that it has been used to target the political opposition, Bernick argued that it should go.
Source: Brad Berklich
“Human history is a constant struggle between forces of domination and forces of empowerment and liberation,” Bernick said, expanding on how this article fits into his wider scholarship. “I view constitutional law [and administrative law] through that prism. . . . All law is the fruit of struggle between competing forces. . . . I try to trace the contours of institutions and norms and ideas that are influential at particular points in time, identify spaces in which those contours have been challenged, the people who have made an amazing ability to carve out space, to realize their visions, no matter how stacked the odds are against them.” Bernick then paraphrased a line from James Joyce’s Ulysses: “History is a nightmare from which I am trying to awake,” used by Joyce’s character Stephen Dedalus in the context of Ireland’s struggle against England. Bernick noted that all of current reality is an emergent consequence of history. “But history shows resistance and struggle against the forces, etc.”
Moran then pointed out that Bernick’s article was “extremely long . . . you know, over 110 pages, which is kind of abnormal.” This elicited peals of muffled laughter from the crowd; many of the occupants of it can be sure were tasked with editing it. “Did you ever think about making it a book?” she continued. Bernick aptly replied that “books are not those that you work on before you get tenure,” but also that he was envisioning an article, and that it would be difficult to switch format mid-stream. Chatting afterwards with an anonymous VLR member, this Law Weekly reporter was assured that though some articles are bad because they’re too long, Bernick’s was not one of those, and it was genuinely enjoyable.
In essence, Bernick says that there is poor evidence that conspiracy deters group crime. “If we are claiming that it’s deterring, and that’s why we need it, then why do all these groups exist? [such as gangsters and the KKK] If the response to that is, we’’ there would be even more groups that existed if we didn’t have this to deter, then it seems like there’s no way you can win. You know, ‘I’ve got this rock in my pocket that keeps tigers away.’ ‘How do you know it keeps tigers away?’ ‘Have you noticed any tigers lately?’”[1] And he charges that Blackstone’s ratio (it’s better to let ten men go punished than to let one criminal go free) is not convincing enough given the dearth of evidence. But absence of evidence is not evidence of absence.
A version of that critique of Bernick’s thesis was proffered by Professor Gregg Strauss, who agreed with the article’s presumption that criminalization requires justification, so uncertainty about deterrence is a good reason to resist criminalization, but wondered if Bernick was holding conspiracy to too high a standard: is there evidence that other criminal laws deter any better than conspiracy? “I own that,” replied Bernick. “I recognize the case for deterrence is weak with respect to a lot of other non-conspiracy crimes, but the case for conspiracy—at least in the literature—depends unusually upon the promise of deterrence [because group crime is thought to be more likely to succeed than individual crime].” But that conspiracy has a conspicuous weakness to that theory as well: it just doesn’t necessarily follow that the punishments for committing conspiracy, in addition to the initial punishments for committing the crime itself, are considered by potential criminals.
Overall, Bernick’s visit was pleasant, informative, and more entertaining than one might expect from a law review article author. But it figures. He seems to have a rich online life outside of scholarship. His Bluesky account is full of pictures of large fluffy dogs, references to books like House of Leaves and video games like Disco Elysium, and unsurprisingly, The Simpsons. Upon prompting by Moran, Bernick noted that though conspiracy was part of the case against Elizabeth Holmes, that alone could not justify its existence, especially since he doesn’t think “that there’s any reason to doubt that you could charge, prosecute, and punish Elizabeth Holmes for things that should be crimes, like fraud.” Bernick had not seen the recent movie featuring Holmes, and said, “I’m very much looking forward to seeing it. Please, nobody spoil it for me.”
Author: Bradley Berklich, jqr9gh@virginia.edu
[1] The Simpsons: Much Apu About Nothing (Fox television broadcast, aired May 5, 1996). Watch the “rock that keeps tigers away” clip at https://www.youtube.com/watch?v=4GzMizVAl-0.