About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

98 J. Crim. L. & Criminology 147 (2007-2008)
Group Think: The Law of Conspiracy and Collective Reason

handle is hein.journals/jclc98 and id is 151 raw text is: 0091-4169/07/9801-0147 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 98, No. I Copyright 0 2008 by Northwestern University, School of Law Printed in U.S.A. GROUP THINK: THE LAW OF CONSPIRACY AND COLLECTIVE REASON JENS DAVID OHLIN* Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a group will has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that the criminal law recognize the rational relationships between individuals who decide to collectivize reason to pursue a common criminal goal; no burdensome theory of corporate animals with unified minds is required. After exploring the different rational structures that a conspiracy can have, the Article outlines the circumstances when vicarious liability could be justified. Specifically, liability must be limited to participants in tightly knit conspiracies who engage in the kind of common deliberation that is capable of yielding collective intentions. A further consequence of this theory is that liability must be restricted to acts that fall within the scope of the criminal plan, not just acts that should have been reasonably foreseeable to members of the conspiracy. I. INTRODUCTION Pinkerton liability has long confounded criminal law scholars. Under this venerable doctrine, first announced by the Supreme Court in 1946, a conspirator's actions may be attributed to all members of the conspiracy, subjecting them to criminal liability for the substantive crimes of their co- conspirators.' The classic example is the bank robber who shoots (or * Associate-in-Law, Columbia Law School; Ph.D., Columbia University; J.D., Columbia Law School. 1 See Pinkerton v. United States, 328 U.S. 640 (1946) (allowing liability for the reasonably foreseeable crimes committed by co-conspirators).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most