San Diego Law Review
Document Type
Article
Abstract
The Pinkerton and accomplice-liability doctrines are two of the most maligned doctrines in criminal law. Anyone deemed an “accomplice” to a crime can be convicted of that crime as if they had perpetrated the wrongdoing themselves; similarly, Pinkerton liability, a form of conspiracy liability, permits the government to hold someone accountable for the substantive crimes of another so long as those crimes were “in furtherance of the conspiracy,” “within the scope of the unlawful project,” and reasonably foreseeable “as a necessary or natural consequence of the unlawful agreement.” Scholars, activists, and reformers have criticized the doctrines on both constitutional and ethical grounds for holding a defendant accountable for criminal activity they did not commit themselves. Despite these critiques, the Pinkerton and accomplice-liability doctrines play a heavy role in the United States Federal Sentencing Guidelines. Should a court find that either doctrine applies, a criminal defendant’s sentence could be increased by years or even change from a fixed term to a life sentence.
This Article argues that courts have misinterpreted the Sentencing Guidelines. For decades, courts have routinely applied the two doctrines to increase numerous criminal defendants’ sentences. But the text and structure of the Sentencing Guidelines suggest that these doctrines should be applied in much more limited circumstances. Guidelines are usually either offense-based—meaning the Guideline states that it should be applied “if the offense involved” specific conduct, like the threat of physical harm to a victim—or defendant-based—meaning the Guideline states that it should be applied “if the defendant” was of a certain status or acted in a specific way, like unlawfully possessing a firearm. Courts have ignored this key textual distinction between “offense-based” Guidelines and “defendant-based” Guidelines, applying Pinkerton and accomplice liability indiscriminately to both. This Article argues that Pinkerton and accomplice-liability principles do not apply to defendant-based Guidelines. So, courts are applying Pinkerton and accomplice liability in almost fifty percent of the Guidelines that they shouldn’t.
Courts’ misreading of the Guidelines has led criminal defendants to be sentenced far longer than deserved, exacerbated the mass-incarceration problem in the United States, increased racial disparities in sentencing, and exposed large numbers of people to prison time based on doctrines that are legally and morally tenuous.
Recommended Citation
Jessica Huang,
Misapplying Pinkerton and Accomplice Liability in the United States Federal Sentencing Guidelines: How Courts Have Wrongly Imprisoned Criminal Defendants for Decades,
62
San Diego L. Rev.
533
(2025).
Available at:
https://digital.sandiego.edu/sdlr/vol62/iss3/3