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Vicarious liability, which is common in some areas of the law, refers to legal responsibility for the actions of another. If a law holds X responsible for Y’s actions, then X’s liability is said to be vicarious. In the criminal law, however, courts and commentators use the term in several different ways. Sometimes the term vicarious liability may be intended to refer only to cases that hold X criminally responsible for Y’s conduct based on the relationship between X and Y. Sometimes the term may be used to describe X having liability for Y’s conduct even though X was not at fault. The term may also be used to refer to all situations in which X is held criminally liable for Y’s conduct.
Under any definition, the criminal law disfavors vicarious liability. The general rule is that one is liable only for one’s own actions and not for the actions of others. Although this general rule against vicarious liability has some exceptions, the principle that one is criminally responsible only for one’s own actions has considerable force, influencing both legislation and judicial decisions.
Laws that punish a defendant’s own act or omission that allows another person to do something unlawful impose direct liability, not vicarious liability, although such laws are sometimes mislabeled. Parents, for example, sometimes face criminal liability for allowing their minor children to use guns or automobiles or to skip school. These crimes are examples of direct liability, not vicarious liability, because the statutes explicitly hold the parent liable for the parent’s own act (e.g., negligently storing a weapon) or omission (e.g., culpably failing to see that a child attended school) that caused the harm, rather than for the child’s conduct.
Vicarious Liability and Strict Liability Distinguished
Vicarious liability should also be distinguished from the closely related concept of strict liability. Under strict liability, the defendant must engage in prohibited conduct, but the separate requirement that the defendant have a culpable mens rea—some degree of fault—is removed. Vicarious liability, in contrast, dispenses with the requirement that the defendant engage in the prohibited conduct, instead holding the defendant liable for the conduct of another. For example, a law holding X liable for selling alcohol to Y, a minor, even though X reasonably believed Y was over twenty-one, imposes strict liability. A law holding W, X’s employer, liable for X’s sale to Y imposes vicarious liability. Laws can (and sometimes do) impose strict and vicarious liability simultaneously—for example, a law that held W liable for X’s sale to a minor even though W and X had taken reasonable precautions to avoid such sales. However, laws can also impose either kind of liability separately.
Why Vicarious Liability Is Disfavored
In many applications, vicarious criminal liability would violate either or both of two basic principles of the criminal law. According to the first principle, the actus reus requirement, a person cannot be guilty of a crime unless the person’s guilty conduct includes a voluntary act or omission. One feature of the actus reus requirement is the protection of personal security it affords by forcing criminal statutes to provide a bright line that a person can choose not to cross and thereby avoid criminal liability. By holding a person liable for the conduct of another, vicarious liability undermines this control principle of the actus reus requirement, because a person cannot control the conduct of others in the same way that she can control her own. Just as importantly, vicarious liability may violate a second principle, that criminal liability must be based on personal fault. Both retributive and utilitarian justifications for criminal penalties demand that fault accompany the moral condemnation and harsher punishments associated with criminal conviction. By punishing the parent for theft if a child steals, for example, vicarious liability could violate this basic rule. Although neither of these principles is absolute, they do cabin (confine to a small space) the use of vicarious liability. As explained below, vicarious liability becomes more controversial as it does greater offense to these principles.
Vicarious Liability for Accomplices and Coconspirators
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.
Corporate Criminal Liability
At common law, the general rule that criminal liability had to be personal rather than vicarious prevented corporations from being held criminally liable, since a corporation could not itself engage in a physical act. Beginning in the latter half of the nineteenth century, however, such limitations were gradually eliminated. Under modern statutes, corporations face vicarious liability for the criminal conduct of certain employees, although the wisdom, fairness and scope of such liability remain controversial. Relying on the fiction that the acts of the employee are the acts of the corporation, some defend such liability as direct rather than vicarious. More persuasively, some consider vicarious liability for corporations a justifiable departure from the basic principles because the penalties involve only fines rather than imprisonment and send less of a message of moral condemnation. Furthermore, it is argued, the corporation is not a true person, and the people most directly affected, the shareholders, suffer losses more akin to civil than criminal penalties.
Vicarious Liability Based on The Relationship Between The Parties
In vicarious liability’s most controversial form, the law convicts one person for the conduct of another based solely on their relationship. With the exceptions of the crimes of nuisance and libel, such liability was unknown at common law. In the twentieth century, however, this type of vicarious criminal liability, almost always in the form of an employer being held liable for the acts of an employee, became more common, particularly in the context of so-called regulatory crimes, which are designed to regulate businesses and usually entail misdemeanor punishments only. Examples include liability for employers based on the conduct of employees who mislabel drugs, sell alcohol to minors, or hire underage workers, even when such conduct runs against the employer’s orders. In this context, vicarious liability is often imposed in conjunction with strict liability—the employee may be convicted for mislabeling the drugs without a showing of mental fault (strict liability) and the employer may be convicted for the mislabeling by the employee solely on the basis of the employer-employee relationship (vicarious liability).
Advocates of this kind of vicarious liability make arguments similar to those used to support strict liability. They contend that it makes employers more careful in choosing and managing their employees. They argue further that without such liability employers who encourage wrongful conduct will escape punishment because their authorization will be difficult to prove. Another argument is that the broad societal harm avoided by such regulatory crimes outweighs any injustice to the ‘‘innocent’’ employer held vicariously liable for the employee’s conduct, particularly because the penalties imposed are usually light and often involve only fines (although in many jurisdictions employers face at least the theoretical possibility of imprisonment).
Opponents of vicarious liability, however, insist on the two basic principles set out earlier: individuals should be criminally responsible only for their own actions, and there should be no criminal liability without fault. This form of vicarious liability, they argue, directly contradicts such principles and should be precluded. The Model Penal Code adopts this view (see Model Penal Code § 2.06 cmt. at 305–306), prohibiting vicarious liability outside of the complicity and corporate liability contexts.
Constitutionality of 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)).
As a general rule, the criminal law does not employ vicarious liability. Such liability would often run afoul of basic precepts that require an actus reus and fault for criminal responsibility. Although vicarious liability is employed in limited circumstances, its wisdom and constitutionality are open to question when its use creates too extreme an affront to these principles.
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