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

66 Pages Posted: 16 Jul 2011 Last revised: 16 May 2015

Date Written: March 1, 2006


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.

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

Suggested Citation

Noferi, Mark L., Towards Attenuation: A ‘New’ Due Process Limit on Pinkerton Conspiracy Liability (March 1, 2006). 33 Am. J. Crim. L. 91 (2006), Available at SSRN:

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