The mens rea of accomplice liability: supporting intentions.

AuthorGirgis, Sherif

NOTE CONTENTS INTRODUCTION I. OVERVIEW OF ACCOMPLICE LIABILITY II. THREE PRIOR PROPOSALS A. Historical Approaches B. A Recent Proposal: Splitting Intentions 1. Splitting Intentions 2. Objections III. A NEW WAY FORWARD A. Proposal B. Rationale C. Comparison with Traditional Rationales IV. CONCRETE IMPLICATIONS A. Fit with Other Features of Accomplice Liability B. Fit with Case Law V. OBJECTIONS A. A Single Standard? B. Under-inclusive? C. Incompatible with the Actus Reus Requirement or Derivative Nature of Accomplice Liability? CONCLUSION INTRODUCTION

Accomplice liability poses an enduring puzzle. It invites the state to convict people of crimes they did not commit. Across the United States, a person can be convicted of grand larceny without pilfering a dime and jailed for first-degree murder without drawing a drop of blood. This might seem like a gross miscarriage of justice, but it is black-letter law: anyone deemed an "accomplice" to a crime can be convicted of it as if he had perpetrated it himself. (1)

What is the moral logic of a law by which one person can be convicted of another's crime--simply for lifting a finger to help him, or for offering an encouraging word? Unsurprisingly, this question has beset courts and commentators for more than a century. Especially controversial is the proper mens tea standard for complicity: Say Cassius helps or encourages Brutus to murder Caesar. Before the law holds Cassius liable as Brutus's accomplice, what attitude should it require him to have toward Brutus's lethal act, or some aspect of it?

In this Note, I defend a new answer. After tracing accomplice liability's broad outlines in Part I, I discuss in Part II three prominent contenders for its mens rea requirement. First, some laws require just that the accomplice know that his action will help the principal commit the crime. Second, others require that the accomplice intend to promote the principal's act. Neither has achieved a steady victory in law:

[I]s simple knowledge enough? Yes, said the Supreme Court in ... 1870; no, said Judge Learned Hand in Peoni in 1938; yes, implied the Supreme Court in 1947; no, said the Supreme Court in 1949; yes, if it is accompanied by an act that substantially facilitates the commission of the underlying offense, said the Supreme Court in 1961; usually, said the Second Circuit in 1962-; only if knowledge is enough for the underlying offense, said the Second Circuit in another case in 1962-; sometimes, said the Seventh Circuit in 1985; always, implied the Seventh Circuit in 1995; no, said the Second Circuit in 1995 and the Seventh Circuit in 1998. (2) And finally, Gideon Yaffe has proposed another standard to resolve this contest between knowledge and purpose: the accomplice must intend that the principal commit the crime, but this intention need not dispose him to promote the principal's crime. I argue against all three proposals.

In Part III, I offer a new one. The options canvassed in Part II assume that what matters is the accomplice's mental state with respect to the principal's commission of the crime. I would scrap this premise. What should make someone an accomplice, I argue, is his stance toward the principal's intention to commit the offense. To be an accomplice, one must intend that someone else form (or keep) his own plan to commit a crime, without expecting or intending for that plan to be frustrated. (3) This standard more precisely matches the kind of investment that might make accomplices of mere helpers. In this and other ways, as I show in Part IV, it better justifies important features of complicity law. I address objections in Part V.

What I do not build is a ground-up defense of having accomplice liability. Any such grand theory must rest on a theory of punishment: Where liability should be imposed depends on where punishment is justified. So whether we should have accomplice liability depends on how it would serve the justifying goals of the criminal justice system--be they deterrence, rehabilitation, retribution, some combination of these, or other aims entirely. Is deterrence the main or only licit point of fining and jailing? Then accomplice liability as we know it should be retired: convicting helpers even when they causally contribute nothing to a crime, as our law does, (4) is hardly the most efficient way to minimize the amount of blood spilled and money embezzled. By contrast, the more one cares about rehabilitation, the more one will want the criminal law to bring into its curative sweep anyone who has certain attitudes toward crime and its harms, as accomplice liability largely does.

For the retributivist, finally, punishment must contribute to justice. And it does that only when the punished deserve it, when they are sufficiently culpable, (5) On this view, a criminal's choice to disrupt social order, callous to its value, does not just cause the injustice set right by law. For retributivists, rather, a guilty mind partly constitutes that injustice. This view need not require banning pure mental states. (6) The point is that a criminal's will to exercise more than his fair share of liberty-his insensitivity to the reasons for obeying some law--is part of the harm that punishment (which limits liberty) is meant to correct. Without this culpability, this disregard of reasons, harmful behavior is not the sort of social ill that normally justifies punishment. In short, a guilty mind--expressed in conduct--involves an arrogation of freedom beyond the law's reasoned bounds, an arrogation central to the retributivist basis for punishment. (7) Retributivist theories will therefore be most congenial to accomplice liability, and to my proposal for its mens rea standard: both concentrate on culpability in justifying liability schemes. (8)

It is not my purpose to argue that our law does or should forge such tight links between punishment and blameworthiness, much less that it should do so by the peculiar tool of accomplice liability. What I aim to offer is the best mens rea standard for such liability, given its practice of convicting a helper for another's crimes, whether or not his help did actual harm. In other words, this Note will assume that accomplice liability (in that sense) is worth having--and hence that liability should closely track culpability. (9) With these points fixed, it will address several questions: What mens rea would make the helper's culpability so much like the principal's that we could licitly convict both of the same crime? How well does this standard make sense of the doctrine? Which details would it suggest refining? And how does it fare against criticisms arising from within the same culpability-centered framework?

  1. OVERVIEW OF ACCOMPLICE LIABILITY

    The doctrine of complicity makes a person "legally accountable for the conduct of another person." (10) A convicted accomplice to murder is, then, a convicted murderer, just like the principal (or perpetrator). These are two routes to the same criminal conviction, status, and range of punishments--to liability for the same offense. In a landmark case on complicity, United States v. Peoni, (11) Judge Learned Hand quoted ancient authorities to the effect that "the law of homicide is quite wide enough to comprise ... those who have 'procured, counseled, commanded, or abetted' the felony ... 'for it is colloquially said that he sufficiently kills who advises' ... the killing." (12) Convicting an accomplice naturally requires inquiry into mens rea and actus reus. But the actus reus bar is set remarkably low. It is cleared by any words or behavior that count as aiding the principal (e.g., handing a murderer a gun), or influencing him (e.g., advising or inciting him to kill) (13) The helper's conduct need not be the but-for cause of the principal's offense. (14) With striking capaciousness, the law (in the words of one commentator) requires only that it "could have contributed to the criminal action of the principal," and that "without the [helper's] influence or aid, it is possible that the principal would not have acted as he did." (15)

    The standard for finding that one person has influenced another (e.g., that Cassius influenced Brutus in killing) thus differs from the standard for finding that one event has caused another (e.g., that a stabbing caused Caesar's death). (16) What accomplice liability requires, again, is not causing the principal to act, but saying or doing something that could have done so. Cassius must have encouraged or helped Brutus to kill Caesar. But it doesn't matter if Brutus would have acted just the same way even without Cassius's input. So one can meet the actus reus requirement even by minimally effective help (at common law) (17) or mere attempts at help (under the Model Penal Code)--whether or not the help does any harm, and whatever its other features. (18)

    Compensating for such a vast conduct element is a more stringent mens rea requirement. And here is where the controversy arises in federal and state law. (19) Which of the accomplice's attitudes matters--his stance toward the perpetrator, toward the perpetrator's act, or toward something else? And whatever its object, what must the content of that attitude or stance be?

    To make this more concrete, suppose Cassius hands Brutus the knife by which Brutus kills Caesar. Several aspects of Cassius's mental state might seem relevant to whether he is complicit in the crime. In particular, we might inquire into his mental state regarding each of (A) his own conduct, (B) Brutus's lethal act (or its actus reus or mens rea component), and (C) the circumstances or results of Brutus's act. (20) Although all three dimensions are relevant to complicity, the first and third have posed much less difficulty and can be resolved by stipulation here.

    First, as for (A), Cassius's mental state in performing his own conduct of aid or influence, I will assume that to be complicit, Cassius must have acted...

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