Of Complicity and Enterprise Criminality: Applying Pinkerton Liability to RICO Actions

The Pinkerton doctrine is a judicially-created rule that makes each member of a conspiracy liable for crimes that other members commit to further their joint criminal design. This Article analyzes the rationale for co-conspirator liability and considers whether it can be enforced under the federal Racketeer Influenced and Corrupt Organizations statute, known as "RICO." Section II(A)outlines the law of complicity, a related doctrine that imposes liability for crimes committed by another under circumstances different from those involved in Pinkerton. Section II(B) traces the origins of the Pinkerton rule and analyzes the premises of Pinkerton liability. The analysis reveals that the Pinkerton doctrine shares an empirical rationale with complicity, so that they are distinct varieties of a single phenomenon which is denominated as "affiliative liability." Section II(C) summarizes RICO law and practice, and Section III considers whether Pinkerton liability should apply in RICO cases.