Vicarious Liability

Criminal responsibility for a person who intended the commission of some crime and did something to advance its commission presents the least controversial use of vicarious liability. Accomplices and coconspirators face such liability. If X assists Y in a burglary by serving as the lookout while Y enters the building and steals, X is guilty of burglary, even though the burglary was committed by Y's conduct, not X's. This sort of vicarious liability is not controversial, however, because the accomplice both engaged in some prohibited conduct—such as aiding or encouraging a criminal act—and acted culpably with regard to the criminal act—usually with the purpose of assisting it. The basic principles of the criminal law are satisfied, and some prefer not to categorize such liability as vicarious at all.

A more controversial application of vicarious liability occurs when an accomplice purposely aids the commission of crime A, but the person aided also commits crime B. In many jurisdictions, the accomplice is guilty not only of crime A, which the accomplice intentionally aided, but also of crime B, provided that crime B was a reasonably foreseeable consequence of the conduct the accomplice aided. Thus, the accomplice may be held liable for conduct that the accomplice did not intend to aid. This form of liability intrudes upon the principle that ties criminal liability to fault. Indeed, for this reason, the Model Penal Code (§ 2.06(4)) and some jurisdictions that follow it limit the liability of the accomplice for unintended crimes to the accomplice's level of culpability for those crimes. Many jurisdictions, however, relying on the fact that the defendant did commit an act of aiding, and had some culpability regarding the unintended crime (because it was foreseeable) allow vicarious liability in this circumstance.

The felony murder rule presents the most controversial application of vicarious liability in the accomplice context, at least among commentators. Under this rule, a death that results from a felony is murder, even if the death was caused accidentally. The felony murder rule extends liability to accomplices, so an accomplice in a felony is liable for murder if a death occurs during the felony, even if the accomplice neither caused, intended, nor foresaw the death. The special controversy surrounding the felony murder rule, however, derives not so much from the presence of vicarious liability as from the use of strict liability. The heart of the controversy lies in holding the conduct of the principal—which extends vicariously to the accomplice—sufficient for murder without culpability regarding the death.

In the many jurisdictions that follow the socalled Pinkerton rule, members of a conspiracy are subject to even broader vicarious liability than accomplices (see Pinkerton v. United States, 328 U.S. 640 (1946)). Pinkerton liability makes all members of a conspiracy liable for the crimes committed by their coconspirators that are within the scope of the conspiracy and reasonably foreseeable consequences of it. Such liability is particularly controversial because the coconspirator may not only lack culpability with regard to the crime, but also may not even have committed an act to aid it. The two criminal law principles are satisfied only to the limited extent that the coconspirator voluntarily and culpably acted by agreeing to commit a crime that foreseeably led to the vicarious crime. Not surprisingly, a number of jurisdictions have followed the Model Penal Code's example (Model Penal Code § 2.06 cmt. at 307–310) and the urging of many commentators and rejected application of vicarious liability to coconspirators who would not be liable as accomplices.