Rethinking Accomplice Liability

By Charles F. Capps. 

The basic premise of accomplice liability—so foundational that it has been described as true “[b]y definition”—is that the accomplice is liable for the conduct of the principal. Accordingly, scholars and lawmakers generally approach the project of fashioning liability rules for accomplices as a search for conditions under which the law is justified in punishing one person for the conduct of another.

The search has yielded considerable frustration and little success. Scholars and lawmakers are “notoriously puzzled” by what mens rea makes someone responsible for another person’s conduct. They disagree sharply over whether someone should need to make a causal contribution to another person’s conduct to incur liability for it. And they debate the extent to which a person’s complicity in a crime can justify punishing the person for the natural and probable consequences of undertaking to commit the crime. The “historic standoff” over these questions has led exasperated commentators to describe the law of accomplice liability as “vexing,” “a disgrace,” “extraordinarily difficult,” a “Gordian knot,” and a scene of “chaos.” Full Article