Agency Theory in Criminal Law: Felony Murder and Conspiracy

Agency theory in criminal law is the set of rules that lets the legal system hold one person or entity criminally responsible for a crime that another person physically committed. The link is the relationship between them: direction, authorization, conspiracy, employment, or the authority to prevent the act. When that relationship exists, courts treat the agent’s conduct and mental state as the principal’s own, and the person held vicariously liable often faces the same penalties as the person who did the deed.

How One Person’s Crime Becomes Another Person’s

A criminal conviction normally requires proof of a prohibited act and a guilty mental state. Agency theory works by transferring both elements from the person who acted to the person who directed, authorized, or conspired in the act. The two are treated as a single unit for the purposes of the offense. If the agent performed the act with the required intent, and did so on behalf of or in concert with the principal, the principal is on the hook as though they had committed the crime themselves.

The clearest illustration is the innocent instrumentality doctrine. When someone uses an unknowing or legally incapable person to carry out a crime, the person behind the scheme is treated as the principal, not the unwitting tool. Hand someone a package to deliver knowing it contains drugs, and you are the principal in the drug offense even if the courier has no idea what they are carrying. Courts have long held that a person who causes a crime to be committed through the instrumentality of an innocent agent bears full criminal liability without being physically present.

Physical proximity to the crime scene does not matter. What matters is whether one person had the authority, agreement, or influence to direct another’s conduct. That relationship is what separates agency-based liability from simply being nearby when something illegal happens.

Felony Murder and the Agency Approach

One of the highest-stakes applications is felony murder. Under the agency approach, a defendant committing a felony can be convicted of felony murder only if the killing was carried out by a co-felon or someone acting as an agent of the felons. If a bystander, police officer, or victim causes the death, the agency approach shields the defendant from a murder charge because the killer was not on the same team.¹

The competing rule, proximate cause, is far broader. Under proximate cause, a felony defendant can be convicted of murder for any death that is a foreseeable result of the felony, regardless of who caused it. If a store clerk shoots and kills a bystander during a robbery, the proximate cause approach could make the robber liable for that death. The agency approach would not, because the clerk is not the robber’s agent.

A majority of states follow the agency approach, limiting felony murder to deaths caused by the defendants or their accomplices. Two people can commit the same robbery in different states and face wildly different charges depending on which theory the state applies.

Pinkerton Liability for Co-Conspirators

The Supreme Court’s 1946 decision in Pinkerton v. United States produced one of the most powerful applications of agency theory in federal criminal law. The rule is blunt: a member of a conspiracy can be convicted of any crime a co-conspirator commits in furtherance of that conspiracy, even without knowledge of the specific act and without being present when it happened.²

The reasoning is that forming a conspiracy establishes the criminal intent. In the Court’s words, “the criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime.”³ The exception is narrow. A co-conspirator escapes liability only if the crime fell outside the scope of the conspiracy or could not reasonably have been foreseen as a natural consequence of the agreement.²

In practical terms, a getaway driver can be convicted of an assault committed inside a building by a co-conspirator, so long as the assault was foreseeable and tied to the shared plan. The driver need not know the assault happened until after the fact. The federal conspiracy statute itself caps the penalty at five years and a fine when the target offense is a felony, but the real exposure comes from the substantive crimes pinned to each conspirator through Pinkerton.⁴ A five-year conspiracy sentence can turn into decades once the co-conspirators’ offenses are added on.

States That Reject Pinkerton

Not every jurisdiction follows the rule. Alaska, Maine, North Dakota, Arizona, Nevada, New York, and Washington have rejected it either by statute or judicial decision. These states require proof of accomplice liability, meaning prosecutors must show the defendant personally had the knowledge and intent required for the specific crime the co-conspirator committed. Under Pinkerton, foreseeability is enough; under the accomplice approach, personal intent is required.

Getting Out of a Conspiracy

A conspirator stays liable for the group’s future crimes until they take affirmative steps to withdraw. Just stopping is not enough. Under the Model Penal Code framework, a person must either wholly deprive their prior assistance of its effectiveness, give timely warning to law enforcement, or make a proper effort to prevent the crime. Anything short of that keeps them on the hook for whatever the remaining conspirators do next.

Corporate Criminal Liability

Corporations act only through people, which raises the question of when an employee’s crime becomes the company’s crime. The Supreme Court answered in 1909, holding that Congress can impose criminal liability on a corporation for the acts of its agents operating within the scope of their authority. Because a corporation profits by the transaction and can act only through its agents and officers, the knowledge and intent of those agents can be attributed to the corporation itself.⁵

This principle, respondeat superior in the criminal context, requires three elements: the employee committed the crime, the employee acted within the scope of their authority, and the employee intended at least in part to benefit the corporation. All three must be present. An employee who commits fraud purely for personal gain, using company resources but with no intent to benefit the company, does not automatically create corporate criminal liability.

The degree of control the company exercises over the worker matters. Employees and authorized agents can create liability for the company because the company directs their work. Independent contractors, who control how they perform their tasks, generally do not. Courts look at the real-world relationship rather than the contract label. A company that calls someone an independent contractor but dictates their schedule, methods, and daily operations may find a court treating that worker as an employee for liability purposes.

The Model Penal Code’s Narrower Rule

The Model Penal Code takes a tighter approach than federal respondeat superior. Under MPC Section 2.07, a corporation can be convicted of a serious offense only if the criminal conduct was authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent. For lesser regulatory violations, the MPC allows broader corporate liability but provides a defense if a high-ranking manager with supervisory responsibility over the subject area exercised due diligence to prevent the violation. About half the states have adopted some version of this approach, requiring that the criminal conduct trace back to senior leadership rather than any employee.

The Responsible Corporate Officer Doctrine

Agency theory usually flows upward, from agent to principal. The responsible corporate officer doctrine reverses direction: it holds individual executives personally liable for crimes committed inside their organizations, even without proof that the executive knew about the specific violation. It is one of the few areas of criminal law where a person can be sent to prison based on their position and authority rather than their conduct.

The doctrine comes from two Supreme Court cases. United States v. Dotterweich (1943) held that public welfare statutes can impose criminal penalties on individuals “standing in responsible relation to a public danger,” even without proof of wrongful intent.⁶ Three decades later, United States v. Park (1975) reinforced and expanded the doctrine, ruling that the Federal Food, Drug, and Cosmetic Act imposes a positive duty on corporate officers not only to find and fix violations but to prevent them from happening in the first place.⁷

Under this framework, prosecutors need to show only that the officer held a position with sufficient authority and responsibility to have prevented or corrected the violation, and that they failed to do so. Personal knowledge of the violation is not required.⁷ Executives in regulated industries, especially food, pharmaceuticals, and environmental compliance, face personal criminal exposure for conditions that exist on their watch, whether or not anyone told them about the problem. Penalties include individual fines, criminal records, exclusion from federal programs, and prison time.

Foreign Bribery and Third-Party Agents

The Foreign Corrupt Practices Act is one of the most aggressive modern applications of agency theory. It makes it illegal for a U.S. company or its officers to pay bribes to foreign officials, and it extends the prohibition to payments made through intermediaries. The statute reaches anyone who pays or authorizes payment to “any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official.”⁸

The definition of “knowing” is deliberately broad. A person acts knowingly if they are aware of a high probability that the circumstance exists, unless they genuinely believe it does not.⁸ That closes the willful-blindness loophole. A company cannot hire a local consultant to handle government permits, pay an inflated fee, and then claim ignorance when the consultant bribes an official. Awareness that bribery was substantially certain to occur satisfies the knowledge element.

Individuals convicted of FCPA anti-bribery violations face up to five years in prison and fines of up to $100,000 per violation, with higher fines available under the Alternative Fines Act based on twice the gain obtained or twice the loss caused.

The Model Penal Code Framework for Accomplice Liability

The Model Penal Code provides the template many states use to define when one person is accountable for another’s criminal conduct. Under MPC Section 2.06, a person is guilty of an offense committed by someone else if they acted with the purpose of promoting or facilitating the crime. That accountability can arise by soliciting the offense, by aiding or agreeing to aid in planning or committing it, by failing to make a proper effort to prevent it when under a legal duty to do so, or by causing an innocent person to engage in the conduct.⁹

The MPC also spells out how accomplice liability ends. A person can avoid liability for a crime they helped set in motion by wholly depriving their assistance of its effectiveness, by giving timely warning to law enforcement, or by making a substantial effort to prevent the crime before it occurs. One distinctive feature: an accomplice can be convicted even if the person who actually committed the crime has been acquitted, has immunity, or was convicted of a different offense entirely.

Why Compliance Programs Matter

Because agency theory can make organizations liable for individual employees’ crimes, companies have a strong incentive to build systems that prevent misconduct. Federal prosecutors formally evaluate the quality of a company’s compliance program when deciding whether to bring charges and how to structure penalties. The Department of Justice’s guidance turns on three questions: Is the program well designed? Is it adequately resourced and applied in good faith? Does it work in practice?¹⁰

A well-designed program must be tailored to the company’s specific risk profile, including industry, geography, and use of third-party agents. Prosecutors give credit to programs that devote appropriate resources to high-risk areas, even if those programs fail to catch a specific violation.¹⁰ Under the Federal Sentencing Guidelines, an effective compliance and ethics program can reduce an organization’s culpability score by three points, directly lowering the fine multiplier applied to any conviction.¹¹ Self-reporting and cooperation compound the reductions.

In March 2026, the DOJ released a department-wide Corporate Enforcement Policy that applies across all criminal cases except antitrust. A company that voluntarily discloses misconduct, cooperates with the investigation, and remediates the problem can receive a declination, meaning the DOJ will not prosecute the company absent certain aggravating circumstances. The policy makes clear that self-disclosure does not protect individuals. The stated aim is to use corporate cooperation to pursue culpable individuals while giving the entity itself a path to avoid prosecution.¹² For companies in high-risk industries or those relying on networks of foreign agents, compliance is the primary tool for limiting criminal exposure when an employee or agent goes off the rails.

1
Penn State Law Review. Third-Party Felony Murder: A Doctrine That Doesnt Make Sense
2
Justia. Pinkerton v United States, 328 US 640 (1946)
3
Office of the Law Revision Counsel. Pinkerton et al v United States
4
Office of the Law Revision Counsel. 18 USC 371 – Conspiracy to Commit Offense or to Defraud United States
5
Justia. New York Central and Hudson River Railroad Co v United States, 212 US 481 (1909)
6
Justia. United States v Dotterweich, 320 US 277 (1943)
7
Justia. United States v Park, 421 US 658 (1975)
8
Office of the Law Revision Counsel. 15 USC 78dd-1 – Prohibited Foreign Trade Practices by Issuers
9
United Nations Office on Drugs and Crime. Liability for Conduct of Another – Complicity
10
U.S. Department of Justice. Evaluation of Corporate Compliance Programs
11
United States Sentencing Commission. Annotated 2025 Chapter 8 – Sentencing of Organizations
12
United States Department of Justice. Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases