Vicarious Liability

Vicarious liability based on complicity and conspiracy, even in its most extreme forms (such as felony murder and Pinkerton liability), almost always passes constitutional muster. Similarly, the Supreme Court has upheld the constitutionality of vicarious liability for corporations (see New York Central & Hudson River v. United States, 212 U.S. 481 (1909)). Courts are less uniform, however, in their judgments about the constitutionality of vicarious liability based solely on the relationship between two people. Much of the difference in case outcomes can be explained, however, by consideration of the degree to which the particular use of vicarious liability violates one of the basic criminal law principles.

With regard to the actus reus principle, courts approving vicarious liability often contend that defendants voluntarily "assumed the responsibilities" the statutes imposed or had it within their power to prevent the crimes in question (see Morisette v. United States, 342 U.S. 246, 256 (1952)). On this basis, most (though not all) courts agree that vicarious liability is constitutional in the employer-employee context (see United States v. Park, 421 U.S. 658 (1975)) and in statutes imposing liability on vehicle owners for traffic offenses committed by those the owner permitted to use the car (see City of Chicage v. Hertz Commercial Leasing Corp., 395 N.E. 2d 1285, 1290–1291 (1978)). In defense of these rulings, defendants do have some limited control to avoid such criminal responsibility by declining to work in the particular business or to lend out their cars. On the other hand, courts usually hold vicarious liability unconstitutional when liability is hinged on a relationship that the law cannot expect an individual to avoid. On such grounds, courts have considered unconstitutional statutes that would make parents guilty of their children's crimes or find car owners guilty of traffic infractions committed with their stolen cars (see State v. Ahers, 400 A. 2d 38, 40 (1979); LaFave and Scott at 254). In such situations it is very hard to say that defendants have "voluntarily" risked criminal liability.

Even when vicarious liability sufficiently satisfies the control principle of the actus reus requirement, the principle of personal fault can affect its constitutionality. Although defendants may be said to have "assumed the responsibilities" that led to their liability, their level of "fault" with regard to the crimes may simply be too low to permit the penalties the statutes authorize. Thus, some courts state that imprisonment for vicarious liability in the context of regulatory offenses would be unconstitutional—only a fine may be imposed (see Commonwealth v. Koczwara, 155 A. 2d 825 (Pa. 1959)). Similarly, the U.S. Supreme Court has indicated that capital punishment for felony murder is unconstitutional when based on vicarious liability, unless the defendant played a major role in the underlying felony and either intended the death or was recklessly indifferent to human life (see Tison v. Arizona, 481 U.S. 137, 159 (1987)).