Group think: the law of conspiracy and collective reason.

• Author: Ohlin, Jens David

1. 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.

2. 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)

   1. 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...