Copyright (c) 2006 Montana Law Review
Montana Law Review
COMMENT: A COMMON LAW CRIME ANALYSIS OF PINKERTON V. UNITED STATES: SIXTY YEARS OF IMPERMISSIBLE JUDICIALLY-CREATED CRIMINAL LIABILITY
67 Mont. L. Rev. 89
Gary, Indiana was named the homicide capital of America many times in the 1980s and 1990s. 1 More than 70% of the murders in Gary are drug-related, and crack cocaine is especially prevalent. 2 Thus, it is probably not particularly noteworthy that William Curtis and Jamell Rouson, two young men from Gary, joined a gang and began distributing crack cocaine. They were eventually arrested and convicted for their drug activity. Curtis' involvement in the drug trade was limited to the drugs, but Rouson's involvement included committing two murders. One would expect Curtis to be punished for distributing cocaine and Rouson to be punished for both distributing cocaine and committing murder. It seems almost illogical to suggest that Curtis could be convicted of murders in which he took no part simply because he and Rouson dealt drugs together. However, this is precisely the result under a troubling conspiracy doctrine created by the United States Supreme Court. 3
In 1946, the United States Supreme Court decided Pinkerton v. United States 4 and drastically altered federal conspiracy law. The Court created what is now commonly referred to as the "Pinkerton theory of liability," 5 "Pinkerton liability," 6 or simply the "Pinkerton theory." 7 Pinkerton liability allows for a party to a conspiracy to be found guilty of substantive offenses committed by a co-conspirator that were committed in furtherance of the conspiracy. 8
In the nearly sixty years since Pinkerton was decided, the theory has become well-established and ...
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