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Article Excerpt
I. INTRODUCTION
Pinkerton liability has long confounded criminal law scholars. Under this venerable doctrine, first announced by the Supreme Court in 1946, a conspirator. (1) actions may be attributed to all members of the conspiracy, subjecting them to criminal liability for the substantive crimes of their coconspirators) The classic example is the bank robber who shoots (or threatens to shoot) a security guard. The lookout who stays behind in the car is just as guilty as the shooter, as long as it was reasonably foreseeable that the plan might go awry and result in physical violence. (2) Federal courts have continued to reaffirm and apply Pinkerton at every turn in the intervening decades. Earlier this year, for example, the Seventh Circuit upheld a defendant's conviction for using a firearm in a crime of violence when it was unclear whether the defendant had a gun. (3) Writing for a unanimous panel that included Judges Easterbrook and Wood, Judge Posner wrote that the factual issue of the defendant's gun possession was irrelevant. (4) A co-conspirator in the bank robbery had brandished a gun, so Pinkerton allowed the government to charge the defendant with using a firearm in a crime of violence, despite the fact that he had done no such thing. (5) Such outcomes are commonplace in the federal courts, though both the Model Penal Code and many state jurisdictions have either eliminated or pulled back from Pinkerton.
Indeed, the law of conspiracy in general is under pressure. (6) The Supreme Court in Hamdan v. Rumsfeld (7) demonstrated remarkable skepticism about conspiracy as an inchoate substantive crime (8)--at least in the international context--and took judicial notice of the fact that many nations have no notion of it at all in their criminal law. (9) The international version of Pinkerton--Joint Criminal Enterprise liability or JCE--is notoriously expansive in its reach, (10) and the doctrine's acronym is snidely referred to at the tribunals as "Just Convict Everybody." (11) These developments suggest a renewed level of scrutiny for this still unsettled area of the criminal law.
In the past, the scholarly literature has either focused its attention on developing a theory to ground vicarious conspiratorial liability or has simply advocated for Pinkerton's demise. (12) Other scholars have made the more radical suggestion that the wider concept of conspiracy itself should be wiped from the landscape of criminal law. (13) This Article will argue that each of these avenues is flawed. Conspiracy is indispensable as a general category to capture the essence of group criminality, but no scholar has successfully developed a theory consistent with the basic principles of criminal law sufficient to ground vicarious liability for co-conspirators. This Article aims to provide that doctrinal justification.
To that end, Part II will first examine the previous attempts at justifying vicarious liability. In order to bring the practice in compliance with basic notions of criminal law, these attempts have found ways to impute both an "act" and "intention" to the defendant sufficient to hold him liable for the substantive crimes of co-conspirators. Various moves are possible here, though the most promising one involved finding the relevant intention in the group's intention to commit the crime. If the group truly "intended" the result, it was hardly a stretch to attribute this will to each member of the group. However, this view has long since been abandoned because it seemed to require positing a "group will" that implied the existence of a supra-human mind filled with the same kind of mental experiences that human beings have. This notion smacked of exaggeration at best, incoherence at worst. Scholars sought alternate routes to attribute the required actus reus and mens rea to the defendant. (14)
Indeed, Part III will consider how the "group will" view became untenable, in particular because legal realism discouraged analysis into the metaphysics of collective endeavors generally. Although this debate happened within the context of corporations, its effects were far-reaching, and the notion that conspiracies have a "group mind" was similarly discredited. Part IV will argue that this was especially unfortunate since groups truly matter to the law and cannot be reduced to their individual members. One consequence of this view is that the call to eliminate the law of conspiracy is an overreaction to the problem.
Part V will show that the discredited view of conspiracies with a "group will," sufficient to meet the mental element required for vicarious liability, stemmed from an overemphasis on archaic psychological notions, and that the group mindedness of a conspiracy involves nothing more theoretically shocking than the rational relations between its members. The elements of this argument come from sober rational choice theory, not far-flung psychology. With this shift in orientation, it becomes quite possible to view the conspiracy as a series of "overlapping" agents, each of whom commits a portion of their lives to a collective endeavor and, for this limited purpose, agrees to submit to a common process of deliberation and execution. This model of the conspiracy as a series of overlapping agents provides the best ground for attributing the mental intention of the group to its individual members, as well as the acts of one conspirator to all others, and it does so without resort to the panicky psychology of a group will. This model recognizes the irreducibly collective aspect to some criminal behavior, yet also explains how these collective endeavors are built from the bricks and mortar of individual agents.
Part VI will employ this model to describe the different categories of conspiracies, each with a slightly different structure, while Part VII will trace the doctrinal implications. Specifically, attribution of the group's intention to each individual provides the justification for vicarious conspiratorial liability, though only for acts within the scope of the criminal agreement and only for tightly knit conspiracies. As for Pinkerton liability, no basis exists for attribution of acts that fall outside the scope of the criminal agreement, for the simple reason that these acts play no part in group deliberations. Consequently, neither actus reus nor mens rea can be attributed to the other members of the conspiracy in these situations.
II. THE DOCTRINAL MYSTERIES OF PINKERTON
In a way, Pinkerton is really two rules rolled into one. The first element of the rule allows for vicarious liability for the crimes of coconspirators that fall within the scope of the criminal plan. The second, more extensive application of the rule applies in cases where the actions of a co-conspirator fall outside the scope of the criminal agreement, but are nonetheless attributed to the defendant because they were "reasonably foreseeable." Pinkerton's name is usually affixed to the latter, more controversial application, in part because it was in Pinkerton that the Supreme Court announced the language of "reasonable foreseeability," a language initially more familiar in tort than criminal law, but now firmly entrenched in the latter discipline as well. (15) However, it is important to note that Pinkerton itself actually involved application of the more pedestrian vicarious liability. The case involved two brothers convicted of tax evasion, where one alone committed the criminal acts, though both were charged by virtue of an alleged criminal agreement between them to evade taxation. Application of the doctrine to actions outside the scope of the criminal agreement was developed in the subsequent case law. (16)
A. THE ACT AND INTENTION REQUIREMENTS
The central dilemma is whether the defendant has committed an act, with the required intent, in order to be convicted of the substantive offense for which he is charged. So the question in Pinkerton was simply how Daniel Pinkerton could be convicted for Waiter's actions, especially since Daniel was in jail when Walter committed them. Somehow, by virtue of the criminal agreement, (17) the act and intentions of one become the acts and intentions of the other, and liability can be attributed to all who join the conspiracy. Furthermore, each individual bears equal responsibility for the actions of the conspiracy. (18) Why does joining the conspiracy turn the acts of others into one's own, as far as the law is concerned? This aspect of Pinkerton continues to elude coherent explanation. (19) This basic question must be analyzed first before considering its more controversial applications.
Of course, the answer is that the Pinkerton brothers conspired together. (20) But why should this matter? One possibility is that Daniel's required mental state for tax evasion can be found in his intent that his brother Walter commit the crime, assuming of course that the act fell within the scope of the criminal plan and was explicitly discussed. While this view sounds plausible, it does not explain where we find the act requirement, since Daniel committed no act of tax evasion at all. In order to justify individual liability, consistent with the principle of culpability, Daniel must have committed a wrongful act. (21) Culpability here means culpability for wrongdoing--and wrongdoing presupposes an act in violation of the law. Culpability cannot be separated from action because it stems from wrongful acts. (22) In order to fulfill the culpability requirement for a Pinkerton prosecution, then, we must somehow show that the defendant committed a wrongful act, even though the act he is prosecuted for is the act of his co-conspirator.
One possibility is simply to attribute Waiter's act to Daniel, on the theory that Waiter's acts become Daniel's merely because the two of them formed a criminal agreement. This explanation hardly makes sense, at least not without some larger account to explain how one person's act can become another person's act by some alchemic transformation. After all, it was Walter who performed the act, not Daniel.
The more likely avenue to provide the act requirement, then, is to argue that Daniel's "act" was joining the conspiracy, or forming the conspiratorial agreement, which ought to be sufficient to meet the act requirement in order to hold Daniel liable for Walter's substantive offense. While it is undeniable that Daniel did commit this act, the act of joining the conspiracy is not the same act as the act of committing tax evasion. If anything, this act simply makes Daniel guilty of the inchoate offense of conspiracy to commit tax evasion, but not guilty of tax evasion proper. Surely the two are distinct.
Consider also the more problematic case where the act in question falls outside the scope of the original agreement. Assume that both brothers conspire to commit tax evasion, but Walter commits additional financial frauds that were neither discussed, nor agreed to, by Daniel. Under Pinkerton, liability might be assessed if the additional financial frauds are considered a reasonably foreseeable consequence of the tax evasion scheme. However, in such a case, Daniel never had any intention of committing the additional financial fraud, so the logical move is to find the required mental element in Daniel's intent to join the criminal conspiracy in the first instance. The well-traveled problem is that this mental element suggests at most a crime of negligence, insofar as Daniel intended one result but, out of negligence, got another. It hardly supports imposition of full liability on Daniel for Walter's substantive offense. The final option is simply to attribute Walter's intention to Daniel. But what could justify such a transfer? As one judge put it:
The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/co-conspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. (23)
The best explanation for how the perpetrator's act and intention travel to the defendant is the path least traveled. For acts that fall within the scope of the criminal agreement, it is the group itself--the conspiracy--that carries the required mental element for the offense, and this fact alone justifies attribution of the required intention to the group's individual members. If the group "intends" the result, all parts of the group can be legitimately said to "intend" the result as well. Furthermore, the same argument can be made for the act requirement as well. But how does one impute the act to the defendant in a Pinkerton case? What wrongful act did he commit? Somehow, the wrongful act of the perpetrator who commits the crime must be attributed to the defendant, and this Article will provide a rationale for this attribution (24) by appealing to sober principles of rational choice theory that should suit all criminal law scholars. Simply put, if one member of the group commits an action that is caused by the group's intention to commit the crime, it is plausible to attribute the act to the group itself, and by reverse extension, back down to each of its members.
B. FROM COLLECTIVE TO INDIVIDUAL CULPABILITY
Charting this reverse path is, however, very controversial. The inference from collective intentions to individual criminal liability is not necessarily self-evident. To skeptics of this inference, the group is one thing, its constituent members another. For example, if the nation is guilty, it does not necessarily follow that any individual member of the nation is guilty. The connection between collective and individual culpability was widely debated in the aftermath of World War II, as lawyers, philosophers, and politicians debated the appropriate culpability of regular Germans for the Holocaust. (25) While some argued that the crimes of the German nation entailed individual culpability for regular Germans, others argued precisely the reverse: individual culpability could not be inferred from the simple fact of being a German. Indeed, many did nothing, or actively resisted, or were themselves victimized. (26) How could they be culpable just by virtue of their membership in a nation--albeit one that acted like a criminal syndicate under Hitler? (27)
The relevant difference between the case of German war guilt and the modern criminal conspiracy is that the latter functions with a tighter deliberative structure than the former. Decisions in a criminal conspiracy are made in the form of group deliberations that involve, as will be discussed in Part IV, a form of collective reason. This tightly knit form of reasoning is not present when the "collective" in question is a massive and loosely organized entity such as the German nation, composed of many individuals who do not participate in the process of group deliberations. (28) Some Germans were mere bystanders. (29)
It is more fruitful to compare the criminal conspiracy with a more structured entity such as a legislature, which has a formal decision-making procedure that all members actively participate in. While conspiracies are not as structured as legislatures, with formalized rules or bylaws, they often have a decision-making structure that is generally followed by social convention, even if it is not codified in writing. (30) It is quite common in the case of legislatures to speak of collective intentions, though critics of "legislative intent" often complain that legislatures cannot have intentions in the same sense that people do, so it is nonsensical to ask what Congress "intended" when it passed a particular law. (31) Even if we can resolve this doubt, and attribute a collective intention to the legislature, it bears asking whether we can attribute that intention back down to the individual legislator.
This raises the special problem of dissenters. In Germany, many (or some) opposed Hitler, either by hiding Jews, speaking out against his policies (though this was rare and dangerous), or, in the most extreme case, plotting Hitler's assassination. (32) In the case of legislators, many vote against an initiative, and at first glance it would appear absurd to attribute a collective intention to them, since they did not even support the proposal. This point bears scrutiny. When a legislator returns home to his district, he can often escape criticism by noting that he voted against a particularly loathsome proposal. In this capacity he appears as an individual defending his voting practices. In other circumstances, though, the legislator may appear as a representative of the legislature--or even the whole nation if he is speaking with a foreign leader--at which point he may very well be called to account for the collective action, and a disavowal by appealing to his own dissenting position would appear inapposite. When is it appropriate to recognize that the individual has taken the collective decision and made it his own? The analogue in the conspiracy is the criminal who disagrees with a particular decision and is overruled, either by majority rule or a contrary decision by the conspiracy's leader, but decides to remain in the conspiracy anyway. How can the group's intention be imputed to an individual dissenter within the conspiracy, sufficient to ground Pinkerton liability? (33)
In order to determine whether collective intentions can be attributed to individuals, we must first analyze the structure of conspiracies. The thesis to be pursued here is that each individual who participates in a conspiracy bears a certain relationship to the individual's thinking process, such that attribution of the collective intention to the individual may be warranted in certain limited circumstances. However, before doing so we must wait until we have explained the structure of collective decision-making. The answer will lie somewhere in the fact that once an individual injects himself in the process of collective decision-making, it is not so easy to disentangle from it. Final evaluation of this argument must be postponed until Part VII.
The contemporary literature has largely avoided such questions. While appeal to the group intention of the conspiracy offers, at first glance, the best solution to the Pinkerton paradox, the position is no longer seriously entertained in the scholarly literature. There are two likely reasons. The first and most pervasive is a distrust of the notion of a group will. If the group "intends" to commit the substantive crime, does this mean that the conspiracy has a mind of its own, like some kind of supra-human animal? (34) Does each member of the conspiracy cease to exist, falling out of existence and replaced by the hive mind of the conspiracy? The notion seems to imply the existence of a unified group mind--an outlandish concept. As Part III will demonstrate, discussions of "group will" have long since been discredited in the law since the rise of legal realism and legal pragmatism. While this view provided the mental and objective elements for vicarious liability, the criticism was that it did so at too high a price.
The origin of this problem can be seen in our very basic understanding of what it means to conspire. We view the criminal conspiracy, rightly or wrongly, as tightly woven in deliberation and purpose, in much the same way that we regard corporations. Indeed, if one looks at the definition of a conspiracy in the Oxford English Dictionary, one finds that to "conspire" means, literally, to breathe together. (35) The prefix con means "with," of course, and "spire" comes from the Latin spiro, spirare, meaning to blow, or more figuratively, to breathe. (36) Hence, conspirare means literally to "breathe together," and by extension, "to accord, harmonize, agree, combine or unite in a purpose, plot mischief together secretly." (37) The association then is not just some loose collective endeavor. The collective endeavor is a case of collective action so closely pursued that the conspirators breathe together as if they are, in a sense, one being--one animal. If this is what it means for a group to have a collective intention, it does indeed sound outlandish.
The second rationale for dismissing the notion of a group intention is that it might conflict with the basic individualistic precepts of the criminal law. Criminal lawyers are inclined to view everything through the lens of individual culpability, and rightly regard talk of group intentions as inherently suspect. Indeed, the entire conspiracy doctrine demonstrates a tension between collective action and individual liability. All conspiracies, by definition, are pursued collectively. However, conviction--and punishment especially--are targeted towards particular individuals, who must alone face the stigma and prison sentence associated with a criminal conviction. (38) Why should the conspiracy be treated like an atomic unit, with each part bearing the same responsibility as the whole? (39) For this reason, any talk of a "group will" is regarded as inconsistent with the Enlightenment principles of individual responsibility that the criminal law is founded upon. Talking about a group will sounds too much like guilt by association or blood guilt.
The goal of this Article is to revive the notion of a group intention, without bringing with it the baggage of a corporate animal with a psychological mind of its own. Ironically, developing this account of group intentions will offer doctrinal implications in Part VIII that do more to respect the individualistic precepts of criminal law and the principle of individual culpability than the current Pinkerton doctrine. Failure to consider the deliberative structure of conspiracies has allowed the criminal law to ignore the required mental and objective elements for vicarious liability, and has allowed expansive conspiracy doctrines like Pinkerton to flourish. Charting the landscape of group intentions will offer a more coherent answer to the mental and objective elements of Pinkerton liability.
Before we start this analysis by turning to the history of the law's treatment of collective endeavors, we must first address an alternate route to grounding Pinkerton liability. Theorists more comfortable with the tools of economics than criminal law theory may simply argue that Pinkerton liability is justified on efficiency grounds alone (because it deters crime), and that no other theoretical justification is required for the practice. The objection requires an explicit response.
C. THE EFFICIENCY OF PINKERTON LIABILITY
One way of expressing Pinkerton's logic is to claim that it deters crime by increasing penalties for those who join conspiracies. Furthermore, one might say that a criminal assumes the risk of Pinkerton liability when he conspires with other criminals. (40) If potential criminals have adequate advance knowledge of the penal law, they assume the risk that they will be held criminally liable for the actions of their co-conspirators, even when those actions fall outside the scope of the criminal agreement. The basis for this assumption of risk is largely utilitarian. (41) There is adequate warning for this prosecutorial scheme and this extended liability serves a cautionary role meant to deter criminal behavior and provide increased incentives for potential criminals to inform on their co-conspirators. (42) If one sees the law as a set of rules meant to incentivize repeat players to avoid criminal behavior or, at the least, to flip on their confederates if they do commit criminal behavior, then Pinkerton is just another rule along the golden path towards efficiency. (43)
Efficiency justifications are problematic when viewed against the background constraint embodied in the criminal law principle of nulla poena sine culpa, or no punishment without personal culpability. (44) The principle codifies our natural intuition that no global utilitarian justification is sufficient to impose punishment on the innocent, regardless of the possible gains in efficiency or overall welfare. (45) The culpability principle has a long history in the legal and philosophical literature, and extends back to the very origins of criminal justice. (46) While new rules regarding criminal liability may be debated and imposed, they are constrained by the requirement that they match the individual culpability of the defendant in question. (47)
A rich understanding of the culpability principle is required. It is not a mere threshold requirement. It is not sufficient to demand that punishment--regardless of its level or severity--be limited to individuals who display some degree of culpability. The principle does more than simply protect the absolutely innocent. Rather, the principle embodies elements of degree and proportionality. To punish an individual who bears only minor culpability (for, say, a minor crime) with a lengthy punishment (for, say, a much greater crime) is to engage in the most severe utilitarian balancing. (48) The point of criminal justice is that such utilitarian considerations be tempered by at least some deontological constraints: punishment must be relative to a defendant's culpability (49) and culpability cannot be generated by anything other than wrongful action.
Efficiency justifications for Pinkerton risk violating this broad conception of the culpability principle. Whether the conspirator "assumes the risk" that his co-conspirators might stray from the criminal plan, or simply embodies our utilitarian desire to provide disincentives for criminal conduct, he cannot suffer punishment that exceeds his culpability. Some story must be told that connects his criminal liability and punishment with his degree of culpability in the overall criminal endeavor. Otherwise, the defendant is being used as a contingent means to achieve greater social goals; this flies in the face of the criminal justice's longstanding goal to adjudicate individual culpability. (50) This is the business of the criminal law.
Efficiency justifications for Pinkerton do more than simply violate the culpability constraint. These justifications ignore the decision-making structure of the conspiracy: the fact that some members orchestrate and direct, while others execute and support. (51) There are many different ways that a conspiracy can be structured, (52) and in each case, the collection of information and the making of decisions (including the formation of criminal goals and strategies for achieving them) are pursued in very particular ways. The conspiracy is not some abstract, atomic unit. It is a collective endeavor with an internal deliberative structure that carries both rational and legal relevance.
Ignoring this internal structure carries more than just moral implications--there are legal and pragmatic considerations as well. The internal deliberative structure of the conspiracy charts the reasons that a group of individuals engage in criminal conduct, and it is precisely these reasons in which the penal law seeks to intervene....
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