Is Conspiracy a Felony? Agreement, Overt Act, and Penalties by State (2026)

Conspiracy is a felony in every U.S. jurisdiction when the agreed-upon target offense is a felony. The crime of conspiracy consists of an agreement between two or more persons to commit an unlawful act, the intent to carry out that agreement, and in most jurisdictions an overt act in furtherance of the conspiracy. Federal law provides three principal conspiracy statutes: 18 USC 371 (general conspiracy, up to 5 years, overt act required), 18 USC 373 (solicitation to commit a crime of violence), and 21 USC 846 (drug conspiracy, no overt-act requirement, penalty tracks the underlying drug offense). Most states grade conspiracy to commit a felony as a felony one degree below the target offense; conspiracy to commit a misdemeanor is generally a misdemeanor. Because conspiracy is an inchoate offense, a defendant can be convicted of conspiracy even if the target crime is never actually completed.

Conspiracy is one of the oldest and most broadly applied crimes in Anglo-American law. The core idea is simple: when two or more people agree to commit a crime, the agreement itself is criminal, even before any crime is committed. Blackstone described conspiracy as a combination to do an unlawful act or a lawful act by unlawful means. The modern offense has three elements in most jurisdictions: (1) an agreement to commit an unlawful act, (2) intent to carry out the agreement, and (3) an overt act in furtherance of the conspiracy. The agreement need not be written or express; it can be tacit and inferred from the conduct of the parties. Each conspirator is liable for the entire conspiracy, including the foreseeable acts of co-conspirators committed in furtherance of the common plan (the Pinkerton doctrine). Conspiracy is a favorite prosecutorial tool because it allows joinder of multiple defendants, admission of co-conspirator statements as non-hearsay under Federal Rule of Evidence 801(d)(2)(E), and liability for offenses the defendant did not personally commit.

18 USC 371 is the general federal conspiracy statute. It criminalizes conspiring to commit any offense against the United States or to defraud the United States. It carries a maximum of 5 years imprisonment, a fine, or both. When the target offense is only a misdemeanor, the conspiracy penalty cannot exceed the maximum for that misdemeanor. Section 371 expressly requires an overt act: one or more conspirators must do any act to effect the object of the conspiracy. 18 USC 373 criminalizes solicitation to commit a crime of violence (closely related to conspiracy but technically a separate offense). The penalty is up to one-half the maximum term for the crime solicited, up to 20 years when the target carries life imprisonment or death. 21 USC 846 is the federal drug-conspiracy statute. It provides that any person who attempts or conspires to commit any offense defined in Subchapter D of the Controlled Substances Act faces the same penalties as the underlying drug offense. Unlike 18 USC 371, 21 USC 846 does NOT require an overt act. The agreement alone completes the offense. Because federal drug offenses carry heavy mandatory minimums (often 5, 10, or 20 years; up to life for large quantities), a drug-conspiracy conviction under 21 USC 846 can produce a sentence just as long as if the defendant personally distributed the drugs.

Drug conspiracy is the most charged federal conspiracy offense and one of the most powerful tools available to federal prosecutors. 21 USC 846 imposes the same penalties as the underlying drug offense, including all mandatory minimums and maximums. No overt act is required; the government need only prove an agreement to violate the drug laws and the intent to carry it out. The government does not need to prove that any drugs were actually distributed, that any money changed hands, or that any conspirator took any step beyond agreeing. The Pinkerton doctrine then exposes each conspirator to liability for the drug quantities attributable to the entire conspiracy, so long as those quantities were foreseeable and in furtherance of the conspiracy. This means a low-level participant can face a 10-year mandatory minimum based on the total quantity handled by the group. Mandatory minimums in 21 USC 841 and 846 include 5 years for 100 grams of heroin or 500 grams of cocaine, 10 years for 1 kilogram of heroin or 5 kilograms of cocaine, and 40 years to life for large quantities or if death or serious bodily injury resulted. Prior drug felonies enhance these penalties: a second offense can double the minimum and maximum, and a third can mean life without release. The only safety valve is 18 USC 3553(f), which allows a court to sentence below the statutory minimum for certain non-violent, first-time offenders who meet strict criteria.

Pinkerton v. United States, 328 U.S. 640 (1946), is the foundational Supreme Court decision on co-conspirator liability. The Court held that a conspirator can be convicted of a substantive offense committed by a co-conspirator, even if the conspirator did not personally participate, so long as the offense (1) was committed in furtherance of the conspiracy, (2) was within the scope of the unlawful agreement, and (3) was a foreseeable consequence of the conspiracy. This doctrine vastly expands the reach of conspiracy charges. In federal drug conspiracy cases, it means every conspirator can be held responsible for the total drug quantity attributable to the conspiracy if that quantity was foreseeable. Not all states follow Pinkerton. Some apply traditional accomplice-liability principles requiring the defendant to have personally aided, abetted, or encouraged the specific offense. Others apply a modified approach that holds a conspirator liable only for offenses that further the agreed-upon plan. The practical effect of Pinkerton is that joining a conspiracy can expose a defendant to liability for a much broader range of conduct than they personally committed, which is one reason conspiracy is so heavily charged.

Withdrawal from conspiracy requires two affirmative steps: (1) affirmative abandonment of the criminal plan and (2) communication of that abandonment to co-conspirators, or affirmative steps to thwart the crime. Mere cessation of activity is not enough; silence is not withdrawal. Withdrawal does not erase liability for acts already committed during the conspiracy, but it can cut off liability for future acts of co-conspirators. In some jurisdictions, withdrawal is an affirmative defense that the defendant must prove by a preponderance of the evidence; in others, the state must disprove withdrawal beyond a reasonable doubt once the defense is raised. Other defenses include lack of agreement (the defendant never agreed to the plan), insufficient evidence of an overt act (in jurisdictions that require one), renunciation (similar to withdrawal but for inchoate offenses generally), statute of limitations, and the unilateral-conspiracy defense (if the only co-conspirator was a government agent who feigned agreement, some states hold there is no true agreement). Entrapment can also apply if the government induced the conspiracy. Impossibility is generally not a defense to conspiracy.

All 50 states and the District of Columbia criminalize conspiracy. The most common grading rule is that conspiracy to commit a felony is a felony one degree below the target offense, and conspiracy to commit a misdemeanor is a misdemeanor. For example, conspiracy to commit a Class A felony is a Class B felony, conspiracy to commit a Class B felony is a Class C felony, and so on. Some states grade conspiracy the same as the target for the most serious felonies. Most states require an overt act, but Connecticut, Hawaii, and a few others do not. New York has a graduated system with six degrees of conspiracy ranging from a Class B misdemeanor (sixth degree, any crime) to a Class B felony (first degree, class A-I felony target). California punishes conspiracy to commit a felony with up to 5 years (or more for specified serious felonies). Texas grades conspiracy one category below the target. Pennsylvania grades conspiracy the same as the target offense. Maryland treats conspiracy as a common law misdemeanor but allows punishment up to the same penalty as the target. The variation is significant enough that the same conduct can produce very different sentences depending on the state, which is why consulting the state-by-state table below is essential.

A conspiracy conviction carries collateral consequences beyond the prison sentence. Under federal immigration law, a drug-conspiracy conviction under 21 USC 846 is an aggravated felony, which for non-citizens means deportation, removal, and a permanent bar to reentry, with limited or no relief available. A felony conspiracy conviction can trigger sentencing enhancements under three-strikes and habitual-offender laws, career-offender status under the federal Sentencing Guidelines, and firearm-possession bans under 18 USC 922(g)(1). Federal conspiracy convictions under 18 USC 371 and 21 USC 846 both count as felonies for purposes of the Armed Career Criminal Act and the federal felon-in-possession ban. Conspiracy convictions can also affect professional licensing, housing eligibility, student aid, and voting rights (in states that disenfranchise felons). A drug-conspiracy conviction can trigger asset forfeiture under 21 USC 853, including the forfeiture of property used in or derived from the conspiracy and substitute assets. Because conspiracy liability extends to the foreseeable acts of co-conspirators under Pinkerton, the collateral consequences can attach based on conduct the defendant did not personally commit.

If you are charged with conspiracy, the most important step is to consult a licensed criminal defense attorney immediately. Conspiracy is a felony when the target is a felony, and the penalties can be as severe as for the underlying offense. A defense attorney can evaluate whether the government can prove the agreement element, whether an overt act occurred (in jurisdictions that require one), whether the Pinkerton doctrine applies, and whether withdrawal or renunciation is a viable defense. Do not discuss the case with co-conspirators, law enforcement, or anyone else without your attorney present; statements to co-conspirators can be admitted under the co-conspirator statement rule. If you are a non-citizen, inform your attorney immediately because immigration consequences can be severe and irreversible. If you are facing federal drug conspiracy under 21 USC 846, ask your attorney about safety-valve relief under 18 USC 3553(f), substantial-assistance departures under USSG 5K1.1, and cooperation. This guide is informational only and is not legal advice.