Group Think: The Law of Conspiracy and Collective Reason

By Ohlin, Jens David | Journal of Criminal Law and Criminology, Fall 2007 | Go to article overview
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Group Think: The Law of Conspiracy and Collective Reason

Ohlin, Jens David, Journal of Criminal Law and Criminology


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.

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Group Think: The Law of Conspiracy and Collective Reason


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