Causing, aiding, and the superfluity of accomplice liability.

• Author: Moore, Michael S.

1. THE PUZZLE OF ACCOMPLICE LIABILITY II. SOME BAD REASONS FOR THINKING ACCOMPLICE LIABILITY TO BE NONCAUSAL OR OTHERWISE DISTINCT IN ITS STRUCTURE A. Liability as an Accomplice Does Not Depend on One Being a Necessary Condition of the Harm, but Causation Does B. Accomplices Cannot Cause the Results Brought About by the Actions of Their Principals Because Those Latter Actions Are Intervening Causes C. Accomplices Cause the Harms They Aid but Only in a Distinct, Secondary, and Anemic Sense of "Cause". D. The Supposed Inapplicability of the Causative Verbs of English to the Causings of Accomplices E. Nonproxyable Crimes and the Need for Accomplice Liability III. BEGINNING AGAIN: THE BASES OF ACCOMPLICE LIABILITY A. Truly Causal Accomplices B. Necessary Accomplices C. Chance-Raising Accomplices D. Necessary to Chance Accomplices? E. Subjectively Culpable Accomplices F. Vicarious Accomplices IV. SOME CONCLUSIONS ABOUT THE FOUR KINDS OF ACCOMPLICES I. THE PUZZLE OF ACCOMPLICE LIABILITY

   There are two doctrinal puzzles about accomplice liability in Anglo-American criminal law. One is the puzzle about the mental states required for conviction as an accomplice. Hornbook law has it that accomplice liability is a "specific intent" offense, (1) a requirement that the accomplice have "purpose" and not merely "knowledge," as those terms are used in the Model Penal Code. (2) Yet, are there two mens rea requirements here, a "primary" mens rea having as its object the aiding of the conduct of another person, and a second requirement having as its object the elements of the underlying crime aided? If so, does the secondary requirement expand or limit the liability otherwise permitted by the primary requirement? What is the relationship between the mens rea required for conviction of guilty principals and the secondary mens rea required for conviction as an accomplice? Does this vary depending on the kind of element (circumstance or result) of the underlying offense involved?

   Interesting and important as these mens rea questions are, my focus here (3) is on a second puzzle about accomplice liability, having to do with the actus reus of being an accomplice, not its mens rea. Put generally, what does one have to do in order to be guilty as an accomplice to someone else's crime? Again, the hornbook law answer (in the ancient language of the common law) is that one must "aid and abet" another's commission of a crime in order to be guilty as an accomplice to that crime. (4) So one can phrase my inquiry as a question about what it is to aid or abet another to do something.

   What is puzzling here can be got at more precisely by stepping away from accomplice liability temporarily to reflect on three other bases of criminal liability. One is the liability as a principal for some completed crime. If I shoot and kill you, I have committed the actus reus of homicide; if I drive away in your car without your permission, I have committed the actus reus of theft. In such cases, it is my agency that is involved, not someone else's; in addition, my agency has "completed" the crime in the sense that it has produced each of the elements required for conviction of the offense.

   The structure of nonomissive, principal liability for completed offenses is essentially causal. (5) Sometimes this is obvious, as when a statute prohibits one from "causing the death of a person" or "causing the disfigurement of a person." Yet this causal structure is only slightly less transparent when criminal statutes use causally complex verbs of action such as "killing" or "hitting" a person or "abusing" a child. Such verbs transparently require that one cause death, contact, or abuse, respectively. This causal structure only becomes less obvious for what many criminal law theorists call "conduct crimes." It is commonly said that there are no "result elements" (i.e., no causal requirements) for crimes such as burglary, rape, theft, kidnapping, defacing public property, or drunk driving. (6) Yet there plainly are causal requirements for such offenses. Rape is done only when the perpetrator, by his bodily movements, causes penetration; burglary, when she causes a breaking and entering; theft, when he causes movement--"asportation"--of the thing stolen; kidnapping, when she causes confinement and movement of the person kidnapped; defacing, when he causes marks constituting defacement to appear on public property; drunk driving, when she causes a car to be in motion while she is drunk; etc.

   There are two reasons why theorists have been misled about the universal causal structure of nonomissive, principal liability for completed offenses. One is the immediacy of causal chains connecting acts of bodily movement and prohibited states of affairs in the kinds of crimes considered here--so-called "conduct crimes." Because of the structure of such chains--between movements of the relevant sort and penetration in rape, for example--there is little room for complex causal questions to arise. By contrast, causing death can be done in quite complicated ways. The upshot is that it is easy to miss the causal requirements in the former type of cases; being unproblematically simple, these are too obvious to notice.

   The second reason for not seeing the obvious here lies in the seeming triviality of saying things like, "to move some object is to cause the movement of that object." That smells suspiciously like a famous definition of a rose. Yet the language misleads here. To use "move" as a transitive verb, as in "I moved the table," is different than using "move" as an intransitive verb, as in "the table moved." (7) To move a table does require that it move, but that does not prevent the bodily movements (that constitute my act of moving it) from causing the separate event that is the table's movement.

   Obvious or not, nonomissive, principal liability for completed offenses is causal in structure. To be guilty as such, a principal is to act in such a way as to cause some legally prohibited state of affairs. Contrast this form of liability with a second form, that of inchoate liability. For inchoate liability, while the principal's act may have to cause something, it need not cause the state of affairs the law ultimately cares to prevent. Attempt crimes, crimes of reckless endangerment (when the danger is not known to the victim), solicitation, and conspiracy are the usual examples of inchoate liability. So are many specific intent crimes, such as traveling across state lines with the intent to bribe a state official.

   Inchoate crimes lack the causal structure of completed crimes in that the perpetrator need not cause the state of affairs the law seeks to prevent. Indeed, typically, that undesired state of affairs has not occurred so one couldn't have caused it. But one does need to have that state of affairs in mind as one acts in order to be guilty of an inchoate crime. For example, one needn't cause death to be guilty of attempted murder, but one needs to have such a death as the object of one's purpose (or in some cases, belief) for such liability.

   The third major form of criminal liability is vicarious liability for the acts of others. In vicarious liability, one needn't cause, nor even try to cause or risk causing, a legally prohibited state of affairs. If someone else has caused one of a number of legal wrongs, and if one stands in a certain relation to that perpetrator, then one is liable oneself for the offense committed. Vicarious liability is a form of agency well known to the civil law, in doctrines such as that of respondent superior in torts. Criminal law is much more circumspect in imposing liability vicariously. Still, it is not unknown, the most notable example being liability of conspirators for the crimes of their co-conspirators even though there is no more than a general agreement between them. (8)

   Accomplice liability is usually presented as a fourth and distinct basis of criminal liability, in addition to principal liability for completed offenses, inchoate liability for incomplete offenses, and vicarious liability for members of criminal combinations or groups. The puzzle is this: what relationship must exist between the act of the accomplice and the state of affairs the law seeks to prevent? We know, for example, that to be guilty of the completed offense of murder as a principal the accused must cause death. We also know that to be guilty of the inchoate crime of attempted murder the act of the accused must be in execution of an intention that has as its object such a death, and the act must go some distance toward causing such death even though no death is caused by such an act. And we know that to be guilty for the crimes of a co-conspirator, a conspirator must have established a relationship amounting to a conspiracy with that coconspirator, who herself causes the legally prohibited state of affairs. What are we to say is the analogous relationship between the act of an accomplice and a result such as death that someone else has caused, if the accomplice is to be guilty of aiding and abetting murder?

   A natural temptation is to assimilate accomplice liability, either to the vicarious liability of co-conspirators, (9) to inchoate liability, (10) or to principal liability for completed crimes. (11) Consider first the assimilation to vicarious liability. The often-expressed idea is that complicity, like conspiracy, is an agency form of vicarious liability. For this form of liability, one needn't have contributed in any way toward the occurrence of some legally prohibited result; one only need be a member of some group or combination, the other member(s) of which does cause some legally prohibited result to occur. On this view, an accomplice stands as the principal liable for the action of his "agents" (i.e., the perpetrator).

   There is some truth to this basis for complicity, at least as complicity is reflected in certain doctrines. Specifically, in some...