The Libertarian Case Against Punishing a ‘Conspiracy’

Moe, Larry, and Curly are planning to rob a bank.

They are careful and exhaustive in their deliberations. They determine which of them will drive the getaway car. They discuss, intensively, the best access and egress routes before and after their crime. They study, over and over again, the electronic and other defensive measures employed by their target so that their gang can obviate them. They find out at which dates and times there will be the fewest customers at this bank so as to ensure not only their own safety, but that there will be the least collateral harm; they are bank robbers, not murderers. How many and how well motivated the bank guards will be is an issue over which they have pored for hours. They are not at all a bunch of nerds, such as those depicted by the television show The Big Bang Theory. They are indeed sophisticated in electronics, as are the aforementioned, but they were not bullied when they were kids; they were the macho bullies themselves. They are seriously planning to rob a bank and take rational steps toward this end. They plan for all contingencies. They agree that at 11 A.M. next Tuesday, they will engage in their heist.

Why rob a bank? Willie Sutton, famous bank robber, is their mentor. He explained: “That’s where they keep the money.”

Have they yet committed a crime? (Tuesday is now several days away.) Certainly, they have, at least in the eyes of extant law. Here is one definition thereof: “Conspiracy is an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement.”

So far, does the Three Stooges Gang qualify? It is difficult to see why its members do not. There has certainly been “an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal.” Thus, in those states that do not also “require an overt act toward furthering the agreement,” it is a matter of case closed. Lock ’em up, and throw away the key.

But what about an “overt act”? Well, if that requires an actual robbery, the TSG is innocent, at least for now. However, they have indeed committed numerous “overt acts.” They have committed pen to paper in their planning. They have cleared their calendars for next Tuesday. After careful search, they have identified which car they will steal and then ditch after the robbery. So they may well be guilty of conspiracy in all fifty states. (I assume away all Soros-inspired attorneys general.)

In sharp contrast, on the basis of libertarian theory, the three miscreants are not yet guilty of any rights violation whatsoever. Whom have they, at least so far, victimized? No one. If what they have so far done is a crime, it is a victimless crime.

They might have aborted their plan ten minutes before they were scheduled to implement it. If so, what crime did they commit? If bad intentions, of which they are certainly guilty, are criminalized, then all of us — except, perhaps, for a few saints, and I am not even sure of them in this regard — would be in jail when caught.

I am now thinking of punching you in the nose, gentle reader. I can anticipate, in loving detail in my mind’s eye, how your proboscis will feel when impacted by my fist. I can just see the blood flowing. I have plotted my escape route. Ha, the cops will never catch me, since I am now wearing a COVID mask.

But good sense and morality prevails, and I do not follow through on this dastardly deed. Am I a criminal nevertheless? Yes, according to the laws now on the books. No, on the basis of libertarian law and common sense.

Originally posted here.