Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton

This article considers what limits the constitution places on holding someone criminally liable for another\u27s 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\u27s conduct and B\u27s crimes in order to hold A liable for them? It is clear A could not be punished for B\u27s 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\u27s ability to punish one person for another\u27s 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\u27s 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\u27s 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

Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton

This article considers what limits the constitution places on holding someone criminally liable for another\u27s 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\u27s conduct and B\u27s crimes in order to hold A liable for them? It is clear A could not be punished for B\u27s 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\u27s ability to punish one person for another\u27s 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\u27s 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\u27s 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

Marijuana Legalization and Nosy Neighbor States

As more states proceed with marijuana legalization laws, questions have arisen about how to accommodate those states that wish to retain prohibition. For instance, in 2014, Oklahoma and Nebraska unsuccessfully sued Colorado based on the spillover effects that Colorado’s marijuana legalization law had on its neighboring states. This article asserts that there are several reasons why state marijuana legalization laws are unlikely to have a large effect on neighboring states. First, marijuana is not a previously unobtainable good being introduced into the stream of commerce, as it is already available through the black market inexpensively. Second, legalization laws have a number of restrictions that make it very difficult for sellers to profit from exporting legally produced marijuana across state lines. Prohibition states may have reason to worry, however, that illegal marijuana growers will be better able to hide their operations in legalization states that allow residents to grow small amounts of marijuana for personal use, which in turn may increase illegal marijuana exports to neighboring prohibition states. Prohibition states can minimize this risk of increased marijuana flow by lobbying the federal government to establish rules that protect their interests