Whether this Court should overrule Pinkerton v. United States, 328 U.S. 640 (1946)

For most of our Nation’s history, it has been bedrock law that “it is the legislature, not the Court, which is to define a crime, and ordain its punishment.” United States v. Wiltberger , 18 U.S. (5 Wheat) 76, 95 (1820) (Marshall, C.J.). But for nearly a century, Pinkerton v. United States , 328 U.S. 640 (1946), has marked a stark departure from that foundational rule. Under Pinkerton , an individual may be convicted of crimes he did not commit—or even participate in—so long as they are the foreseeable result of a conspiracy he joined. That is not because Congress, or even the common law, embraced that dubious form of vicarious liability. It is because this Court invented it out of whole cloth in Pinkerton . Yet Pinkerton continues to be the law today—and federal prosecutors continue to take full advantage of it. This is a case in point. The government charged and tried petitioner on the theory that he used a firearm to commit a robbery and shoot the victim. Yet Pinkerton enabled the government to convict him of those crimes even though the jury plainly rejected that theory and concluded that it was an alleged co-conspirator, not petitioner, who committed the crimes. In other words, petitioner has been deprived of his liberty not for engaging in conduct that violates a statute in the U.S. Code, but via a guiltby-association theory manufac tured by this Court. The question presented is: Whether this Court should overrule Pinkerton v. United States , 328 U.S. 640 (1946).