University of New Hampshire Law Review


[Excerpt] "Suppose that A hires B to rob a bank in Massachusetts and A then hires C to rob a bank in Rhode Island. B and C have not met face to face, but each knows he is part of a conspiracy to rob banks in more than one state. All agree that no one will be killed in the robberies. A then procures D to get a car for use in the robberies. B uses D’s car to rob his bank. During the robbery of C’s bank, C pulls out a gun and shoots and kills the bank guard.1 Clearly, A, B, C, and D are all guilty of conspiracy to rob banks, the act to which they agreed. Clearly too, A, B, C, and D are not guilty of conspiracy to murder, because they never agreed to kill anyone.2 C, however, is guilty of murder, since he intentionally killed the bank guard without justification or excuse. 3 But can A, B, and D also be charged with this murder? There are, of course, several ways in which one person may be guilty of a murder committed by another person. One is by the felony-murder rule, which historically has meant that one is guilty of murder if, in the course of committing a felony, one causes the death of another person. In this example, if the felony-murder rule applies, A, B, and D could be guilty of felony murder of the bank guard – a murder committed by their cofelon, C. 4 But if the felony-murder rule is not applicable, either because the state has rejected the rule, as most commentators have long been urging states to do,5 or because the state legislature has defined felony murder as second degree murder and the prosecution wants to convict A, B, and D, as well as C of first degree murder of the guard, is there another basis for finding A, B, and D guilty? The doctrine of complicity, also known as aiding and abetting, is, of course, another way to make a person guilty of a murder committed by someone else. But would A, B, and D be guilty of murder of the bank guard on an aiding and abetting theory in this instance? On mens rea grounds, A, B, and D intended at most to encourage a robbery by C. In Model Penal Code terms, that was their purpose or “conscious objective.” But their purpose was not to encourage C to kill anyone. They had expressly agreed that no one would be killed. They did not know that C would kill during the robbery. If aiding and abetting requires a purpose to facilitate the particular crime at issue, A, B, and D would not be guilty of murder of the bank guard by aiding and abetting. On actus reus grounds, there also would be a problem with complicity. A did hire C to rob the bank. He did actively set in motion the crime which resulted in the killing of the guard. But what did B and D really do to assist or encourage the robbery by C, much less C’s murder of the guard? All they did was to agree to be part of a larger conspiracy to rob banks. One could argue that they never facilitated C’s specific robbery, and that they did nothing to facilitate his killing of the guard. There is, however, an alternative way in which A, B, and D can be convicted of C’s murder of the guard. If the court finds that A, B, C, and D were in a conspiracy to rob the banks, and if C committed murder in furtherance of that conspiracy, then A, B, and D are all also guilty of murder, as long as they could reasonably have foreseen that such an event would occur in the course of their conspiracy. They could all be guilty of first degree murder, even though A, B, and D never met the bank guard, never assisted or encouraged C to kill him, never wanted C to kill him or knew C would kill him, and never even visited the bank or entered the state in which the bank was located! The rule by which this result is reached, called the Pinkerton rule, is one of the most controversial doctrines in modern criminal law. Broadly stated, the rule is that “any conspirator in a continuing conspiracy is responsible for the illegal acts committed by his cohorts in furtherance of the conspiracy, within the scope of the conspiracy, and reasonably foreseeable by the conspirators as a necessary or natural consequence of the unlawful agreement.” 6 This rule permits conviction of a crime that the accused did not intend, plan, want, or even know about, committed against a victim whom the defendant did not know or want to harm.7 The rule applies throughout the life of the conspiracy to all who originally agreed to join the conspiracy, unless the defendant overtly acted to disavow and/or defeat the conspiracy. The Pinkerton rule “is not universally followed.”9 It is rejected in the Model Penal Code.10 Many state courts have interpreted their statutes to require more than membership in a conspiracy for complicity in substantive crimes committed in the course of that conspiracy.11 Commentary on Pinkerton in the academic world, much like commentary on felony murder and on conspiracy in general, is overwhelmingly negative.12 On the contrary, this article argues that the Pinkerton doctrine, far from being an aberration, is rather more an illustration of our existing criminal law and of some of the important theoretical assumptions behind it. Understanding Pinkerton is important because it remains good law in the federal system13 and in a considerable number of states.14 The rule, it has been said, “is applied in an enormous number of prosecutions.”15 For example, one commentator has recently argued that the Pinkerton doctrine “may likely aid the United States government in prosecuting a figure like Zacarias Moussaoui, who was behind bars in a Minneapolis jail at the time of 9/11.” Under Pinkerton, it would not be necessary to prove that Moussaoui “knew every member of the conspiracy, that he was aware of the end result of the conspiracy, or that he took any steps toward achieving the plot – only that he could reasonably have foreseen that people would be killed.”16 When LaFave and Scott published their often-cited Handbook on Criminal Law in 1972, they noted that the Pinkerton doctrine had “never gained broad acceptance.” Eleven years later in an article in the Nova Law Journal in 1983, Jon May concluded that this “assertion is no longer correct.” 17 Since the early 1970s, according to May, the rule has been used with increasing frequency, especially in narcotics cases18 and appears to have become largely “entrenched” in federal law.19 In a recent book, Professor Joshua Dressler says that the Pinkerton doctrine, “adopted in the federal courts, is the majority rule in states that have considered the issue.” 20 In short, as one commentator has observed, in many courts in the United States, “a conspirator can be held responsible for crimes committed by her co-conspirators as long as such crimes were in furtherance of the agreement and were reasonably foreseeable.”21 The “reasonably foreseeable” component of the Pinkerton doctrine in effect imputes criminal liability for what the Model Penal Code calls negligence. 22 A person is guilty of another co-conspirator’s crime, under Pinkerton, if it was “reasonably foreseeable.” In other words, it does not matter whether the defendant himself, subjectively, actually foresaw this crime. What matters is only whether a reasonable person, objectively, would have foreseen it. The defendant is guilty even if he did not know there was a risk that this crime would be committed if he “should have known” of that risk when he agreed to be a conspirator.23 There can be no question that the Pinkerton doctrine has prompted vituperative criticism.24 The President of the National Association of Criminal Defense Lawyers, an organization with 25,000 members, for example, had this to say against the rule: [T]he Pinkerton doctrine permits the government to hold a defendant criminally responsible for all reasonably foreseeable acts of co-conspirators regardless of actual knowledge, intent, or participation. Thus, if the government cannot prove a defendant guilty on various substantive charges, it need only convince the jury of the defendant’s guilt of conspiracy to secure convictions on the otherwise unsupportable substantive charges.25 Convicting one person of any crime committed by another is difficult to justify, given the law’s preference for individual rather than collective or associational guilt and given the independence of each person’s will.26 It is even more difficult to countenance when there is no proof that the convicted person was even subjectively aware of a risk that this crime would occur.27 And this doctrine seems most strained when it is applied, as it has been, to convict one person of a murder committed by someone else based on such negligent perception of risk.28 Murder, of course, is the most horrific of crimes. Conviction of murder can result in imprisonment for life or, in some states, even the death penalty. Is it fair to permit a person to be convicted of murder because he should have perceived a risk that another person – perhaps someone he never met – might kill someone else? Is murder based on this negligence theory defensible? These are important questions to which an analysis of the Pinkerton doctrine gives rise. This article examines the Pinkerton doctrine in general and, more precisely, its application to permit one person to be convicted of murder through negligent failure to perceive a risk that another person would kill. Part II of the article examines in detail the 1946 case of Pinkerton v. United States, which, though not a murder case, developed the Pinkerton doctrine of conspiratorial liability. After analyzing the arguments of the majority and the dissent by Justice Rutledge criticizing the majority’s new rule and reasoning – criticism echoed in much of the scholarly literature – we move, in Part III, to a review of a number of post Pinkerton cases in which the doctrine has been expanded beyond the original holding. Special attention will be given to those cases in which co-conspirators have been found guilty of murder in conspiracies where murder was not the original object or plan. Part IV sets the rule in context by contrasting it with the law of causation and with both the Model Penal Code and “natural and probable consequences” approaches to complicity. Part V of the article examines the merits of criminalizing negligent killing as murder. The discussion includes a revisiting of Holmes’s familiar argument in favor of an objective (negligence) standard in murder (and manslaughter) prosecutions, as well as an assessment of more recent attempts to come to terms with the subjective/ objective debate in criminal homicide cases. Part VI concludes with thoughts on the uniqueness of the Pinkerton doctrine and what if anything can and should be done about its perceived unfairness. Taken as a whole, the argument is that, even when broadly applied to crimes that were not original objectives of the conspiracy but were reasonably foreseeable, Pinkerton is not an aberration in the law. Instead, it is consistent with the way the law has been and with the way it should continue to be interpreted."

Repository Citation

Matthew A. Pauley, The Pinkerton Doctrine and Murder, 4 PIERCE L. REV. 1 (2005). Available at http://scholars.unh.edu/unh_lr/vol4/iss1/3

Included in

Law Commons