Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton

56 Pages Posted: 2 Dec 2007 Last revised: 16 Dec 2009

See all articles by Alex Kreit

Alex Kreit

Northern Kentucky University - Salmon P. Chase College of Law

Date Written: November 29, 2007


This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's conduct and B's crimes in order to hold A liable for them? It is clear A could not be punished for B's crimes simply because they are friends. This is true even if A suspected B was involved in criminal activity. Beyond this, however, the boundaries are surprisingly uncertain.

Though commentators have long debated the wisdom of vicarious criminal liability as a policy matter, the question of whether the constitution constrains the government's ability to punish one person for another's crimes has gone largely unexamined. The lack of attention to this topic is all the more glaring in light of a small but steady line of cases holding that, in the context of conspiracy law, due process forbids vicarious liability for crimes that are not both (a) reasonably foreseeable and (b) done in furtherance of the conspiracy (these are the so-called "Pinkerton limits"). Despite these cases, however, courts continue to permit holding defendants strictly liable for another's conduct in other areas of criminal law, such as felony murder. If negligence is constitutionally required for vicarious liability in a conspiracy why is it not for felony murder vicarious liability?

This article aims to examine the extent to which substantive due process limits vicarious criminal liability through the lens of cases that have held Pinkerton's test to be a constitutional minimum in the conspiracy context. First, I consider why courts have treated the Pinkerton test as a constitutional floor and attempt to build a more coherent approach for understanding these cases based on the due process "personal guilt" concept. Second, I explore how these cases might impact other areas of criminal law using three examples: the definition of "scope" in conspiracy law, the felony murder doctrine, and the "material support" provision of the Antiterrorism and Effective Death Penalty Act. Though a clear and thorough account of personal guilt and vicarious liability under the constitution is likely to remain elusive for some time, I hope that this article will help start a broader and much-needed discussion about constitutional constraints on vicarious criminal liability.

Keywords: conspiracy, pinkerton, vicarious liability, felony murder, criminal law, constitutional law, substantive due process, due process

JEL Classification: K14

Suggested Citation

Kreit, Alex, Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton (November 29, 2007). American University Law Review, Vol. 57, No. 3, p. 585, 2008, TJSL Legal Studies Research Paper No. 1034289, Available at SSRN:

Alex Kreit (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

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