5. Punishment. An individual subject to the UCMJ who is found guilty of conspiracy is
subject to the maximum punishment for the offense which is the object of the conspiracy. However, the
death penalty may not be imposed. Part IV, MCM, 1984, para 5(e).
Conspiracy and the substantive offense which is the object of the conspiracy are
separately punishable. The philosophy for this rule was set forth by the Supreme Court in Callanan v.
United States, 364 U.S. 587, 81 SCt 321, 5LEd2d 312 (1961). Rehearing denied 365US 825, 81 SCt
687, 5 LEd2d 703 (1961).
"Collective criminal agreement--partnership in crime--presents a greater potential threat
to the public. Concerted action both increases the likelihood that the criminal object will
be successfully attained and decreases the probability that the individuals involved will
depart from the path of criminality. Group association for criminal purposes often, if not
normally, makes possible the attainment of ends more complex than those which one
criminal could accomplish. Nor is the danger of a conspiratorial group limited to the
particular end toward which it has embarked. Combination in crime makes more likely
the commission of crimes unrelated to the original purpose for which the group was
Because of this, conspiracies are held to be specifically punishable because of the added danger they
pose to society.
E. Solicitation (Articles 82/134, UCMJ). Article 82 provides that a person who solicits or
advises another to desert, mutiny, commit an act of misbehavior before the enemy, or sedition is guilty
of solicitation. This is a very specific offense which deals only with the listed crimes. Solicitation under
Article 134 covers the crime of soliciting another to commit any offense other than those listed within
It is important to note that this is a specific intent offense, the accused must specifically
intend for the solicited individual to commit the crime solicited.
The solicitation itself may be made orally or in writing and encompasses any act or
conduct which reasonably may be construed as a serious request or advice to commit the crime in issue.
The offense is complete when the suggestion is made or advice is given with the required wrongful
intent to influence another to commit the crime. The persons to whom the suggestions are made or the
advice is given need not agree to act upon the suggestion or advice in order to complete the crime. The
crime is complete upon the asking or advice.
QUESTION: WHAT IF HE DOES AGREE TO COMMIT THE OFFENSE?