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Towards Attenuation: A ‘New’ Due Process Limit on Pinkerton Conspiracy Liability


Mark L. Noferi


Center for Migration Studies

March 1, 2006

American Journal of Criminal Law, Vol. 33, p. 91, 2006

Abstract:     
Since 1946, Pinkerton v. United States has purportedly settled the rule that a conspirator can be held vicariously liable for the crimes of his co-conspirators. Over the last thirty years, however, courts have begun to articulate and enforce Due Process limits on vicarious conspiracy liability where defendants are “attenuated” from their co-conspirator’s crimes. This article represents the first academic examination of constitutional Due Process limits on Pinkerton conspiracy liability, their theoretical underpinnings, and the implications as the federal government pursues terrorism and corporate conspiracy prosecutions.

In Part I of this Article, I outline the rationale behind vicarious conspiracy liability, examining Pinkerton and the common-law and theoretical justifications it rests upon. In Part II, I examine the Pinkerton Court’s suggested limit of “reasonable foreseeability,” and the dissent’s critique that “reasonable foreseeability” is inadequate to protect due process, providing the touchstone for the later reassessments. In Part III, I examine the dissent’s three concerns – looser evidentiary standards, the potentially unlimited scope of vicarious liability, and guilt by association – and their relationship to the Due Process Clause. Part IV examines the lower court reassessments of Due Process limits on Pinkerton liability. In Part V, I articulate this “new due process limit” of “attenuation,” examine its theoretical justifications, and consider its practical implications, as well as whether the Supreme Court might adopt such a standard.

Number of Pages in PDF File: 66

Keywords: Pinkerton, conspiracy, criminal law, due process, vicarious liability, accomplice liability, complicity, attenuation, causation, foreseeability, terrorism, corporate law, guilt by association

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Date posted: July 16, 2011  

Suggested Citation

Noferi, Mark L., Towards Attenuation: A ‘New’ Due Process Limit on Pinkerton Conspiracy Liability (March 1, 2006). American Journal of Criminal Law, Vol. 33, p. 91, 2006. Available at SSRN: http://ssrn.com/abstract=1886581

Contact Information

Mark L. Noferi (Contact Author)
Center for Migration Studies ( email )
307 E. 60th Street
New York, NY 10022
United States
6503801387 (Phone)
HOME PAGE: http://cmsny.org
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