Collective Action, Complicity, and Criminal Law8

The above sketch of the moral foundations of responsibility for collective wrongs puts us in a position to translate these abstractions into the most concrete legal context in which they arise: criminal law.

Saying that these are easy questions does not imply that their answers are easily forth­coming: the basic facts will be in dispute, and coincidences may complicate the answer. Perhaps the suspect genuinely believed it was a toy gun, or cigarette lighter, that he was demonstrating; if no, no mens rea, and no liability. Or perhaps the victim had simultaneously collapsed from a drug overdose moments before he was shot; if so, then no causation. Nonetheless, the basic liability package is clear: a responsible defendant (i.e., capable of rational self-regulation) who acts inten­tionally or otherwise culpably to cause social harm, and in fact does so.

No moral theory of punishment hesitates here. A Kantian could not reasonably universalize a maxim of doing deliberate or indifferent lethal harm in a world in which we must expect reciprocal concern from others; a state agent would be charged with respecting the equal dig­nity of the victim, in relation to the killer, and thus be obliged to punish.

Now add another actor: two patrons are squared off and angry, when a third person in the crowd hands a gun to one of them, saying “give him what he deserves.” The fighter handed the gun shoots and kills. Clearly, he is guilty of some form of homicide, and morally responsible for that act. But both morality and law insist that the fact that only he pulled the trigger does not exhaust the question of responsibility. The onlooker with the gun also contributed to the death—notwithstanding that it was the shooter’s decision whether to pull the trigger, and inde­pendent of whether the shooter might have killed with a knife instead. The act of handing a gun to another itself causes no harm and violates no legal norm, assuming it is not being handed to someone prohibited from holding arms. But this basic principle, that indirect contribution to someone else’s bad act can render one responsible for that act, is subject to a vast range of philosophical challenges.

Consider some more elaborated legal and literary examples:

(1) Stewart bears a grudge against Roger. When Frank says that he is thinking of breaking into Roger’s house, Stewart offers to keep a lookout on the street, and to whistle if police approach. No police approach; Frank successfully burgles Roger.

(2) Iago, seeking to frame an innocent, persuades his jealous commander Othello that his wife has been unfaithful. Iago plants evidence, insinuates Desdemona’s betrayal, and then, as Othello’s jealousy rises to fever pitch, suggests that Othello strangle her. Othello does and is charged with murder, but is convicted only of manslaughter, on the ground that most people, in the circumstances, might have behaved in similar fashion, and so is not fully responsible for his acts. Is Iago guilty of a more serious crime?

(3) Maxwell, a member of a Protestant Irish militant organization, was asked to drive his car to the home of some Catholics, thus leading a car containing four strangers to the home. Maxwell did not know what specific crime was intended, although he knew it was a “military operation” of some sort. Is Maxwell guilty of the attempted bombing of a bar conducted by the four strangers?⁹

Many moral-philosophical puzzles arise from the collective aspect of these cases. First, what justifies the liability of the aider, whom law calls a “secondary party” (“S”), given that he has done nothing intrinsically harmful, or that otherwise directly violates a legal rule, in contrast to the “Principal Actor” (“P”), who does the breaking, strangling, bombing? The lookout for a burglary does not enter the house. The getaway driver harms no one. Why is intent, plus some (legally) innocuous action, enough to justify loss of liberty or other severe penalties? Second, relatedly, why should (as in most jurisdictions) S be liable to the same punishment as P? In general, accomplices are punished as though they were principals—even though they have not themselves directly caused harm. Shouldn’t there be a default reduction in liability? (Of course, some accomplices, namely those like Iago who instigate crimes, may arguably be more responsible than the direct perpetrators.) Third, and conversely, why is a “specific intent” to cause the harm generally required for an accomplice’s liability, but not for a direct actor’s? In general, for crimes grounded in a result (e.g., homicide), knowing that you will, or likely will, produce the result is enough to be treated as if you intended the result—for instance, throwing a rock at a window to see if it might bounce off (because you wonder idly if the window is plexiglass) counts as intentionally breaking the window.

These questions arise within criminal law, in relation to the formal concepts of intent and cause. They also reflect a specific dialectic within criminal law, between its backward-looking, retributive structure, and the forward-looking, risk-reducing aims that have become an increasing part of its modern justification. A retributive view of criminal law puts pressure precisely on the difficult points of interpersonal causation and joint activity, while an instrumentalist conception, like that embodied in the U.S. Model Penal Code, rests on vaguer grounds, such as whether a given defendant has manifested some form of social dangerousness, independent of the causal efficacy of the particular role he played.

We can sketch the basic elements of accomplice liability crudely as follows: someone is liable for the conduct of another as an accomplice if, prior to the other’s attempt at or commission of a criminal act, the first person does or says something that could assist or encourage the second in the commission of the act, where the act of the first is done with the intention that the second in fact engage in the criminal act. The conduct, or actus reus, element of compli­city is evidently broad, and defined only in relation to acts of assistance or encouragement (including inducement); the mental, or mens rea, element is accordingly narrower, and requires that the accomplice have an intent closely analogous to that of the principal.

Within criminal law theory, there have been refined debates about whether the inter­personal connection can necessarily be deemed causal, as doctrine (especially in the United Kingdom) sometimes suggests. The problem is not so much one of peripheral parallel actors in relation to an overdetermined harm. Rather, the question is whether the Secondary agent can be said to (partly) cause the Principal agent to act by aiding or encouraging, so as to cement her own independent connection to the resulting harm. John Gardner and I divide on the question, for example.¹¹ Gardner insists that any contribution by an accomplice intended to encourage or aid the crime—whether or not it makes a difference, satisfies the doctrine’s causal requirement. I, by contrast, argue that the best way to understand the crim­inal significance of an accomplice’s contributions is by seeing them as attempts to influence the crime, whether or not they are causally relevant. This is to treat the causal requirement in complicity law as a kind of legal semi-fiction: the accomplice’s acts have to have been of the right type, and to have occurred in the neighborhood of the principal’s crime, with the requisite intent, but any further causal investigation is irrelevant.¹² Michael Moore has also recently argued, in turn, that complicity doctrine as a whole can be dissolved, and replaced piecemeal with the ordinary elements of individual criminal liability: secondary parties who contribute to harms by (partly) causing them—for instance, Mafia bosses whose orders initiate killings—are just killers causing death using people (with guns) as weapons; and non-causal accomplices can instead be thought of as principal actors who through their acts raise chances of harm, though they do not themselves cause it.¹³ Moore’s argument is clever, but perhaps not ultimately persuasive, in large part because both our general conception of moral responsibility—and associated doctrines of criminal law—rebel against treating forms of encouragement or persuasion short of duress as sufficiently direct to merit being put on the same footing as pulling triggers, pouring gasoline, hauling off stolen goods, and the other acts constitutive of the criminal law. Moore’s proposal threatens to obscure the way accomplice liability involves a distinctive, but still responsibility-generating, form of asso­ciation with criminal harms, while placing a great deal of evidentiary pressure on proof of causation or risk.¹⁴

For these purposes, however, the relevant point is that whether through a legal fiction of a token-level causal relation, or whether through a broader notion of causation, Aiders and Abettors are deemed to be closely enough connected to resulting harms that liability can be justified in retributive terms.

Now, to say this is not yet to justify the equivalence of accomplice and direct liability—i.e., the co-equal liability of Stewart (who stands and does nothing) and Frank, who breaks in. Indeed, in most legal systems, if Stewart had reason to think Frank might be armed, and Frank while burgling shoots the homeowner, both are liable for murder. The notable jurisdictional exception is Germany, where aiding accomplices are given a significant discount from their principals’ sentencing, although inducing accomplices are given no such discount.¹⁵ This seems anomalous, given that Frank’s act of shooting can only be described as a killing, while Stewart’s act of standing alert cannot be described as a killing at all. Simply on linguistic grounds, it seems wrong to label Stewart equally a killer.

Of course, the moral valences can be reversed, as in the example of Iago. Othello is guilty at the least of voluntary manslaughter, and perhaps even second-degree murder, depending on a jury’s sympathies for the torments of misplaced sexual jealousy or the reasonableness of his suspicions. But Iago’s case is more complicated. Othello is too strong to be considered a victim, and Shakespeare is clear that honor alone does not compel him to kill—the murder arises more from his own insecurities, and proceeds with fair deliberation. But Othello is still essentially moved by a world of false clues Iago constructed around him. Iago, meanwhile, is not subject to the specific irrationality of sexual jealousy; Desdemona’s killing is the object of his plot, not an outbreak of passion. He is a deliberate murderer, without question. While Othello is more than a mere instrument of Iago’s will, Iago’s greater culpability is supported by the distinctive nature of his plan—the way it incorporates Othello’s agency within.

The interchangeability of accomplice and principal liability is peculiar because, in the case of attempt liability—arguably the closest analogue to accomplice liability—the dominant pattern in legal systems is a systematic reduction in punishment for incomplete harms. More gener­ally, empirical moral psychology tends to assign weight to an agent’s proximity to harm; and legal systems tend to reflect such conventional morality, except in the case of Mafia kingpins. Nothing decisive follows from this fact of our moral psychology, but it does suggest that the justificatory burden should be significant for the principle of equal punishment. Or, to put it another way, it seems anomalous for accomplice liability to be so Kantian when much of the rest of criminal law reflects more luck-sensitive intuitions. It may be that the best explanation for not discounting accomplice liability is simply that there are too many cases of the Iago sort, where intuitions and even reflective moral judgments conflict, and it would be a waste of public resources to make fine distinctions between criminal actors, each of whom has manifested an anti-social animus. But such pragmatism does not satisfy the general liberal presumption against punishment beyond what is socially useful and fair. This is an area where more philosophical work can be done.

The last point that complicity law helps us to make involves the fundamental concept of alienated participation, exemplified in the example of Maxwell. An alienated participant is someone indifferent to the success of the venture as a whole (perhaps because he does not profit from it), but who nonetheless deliberately contributes to the venture. Individuals par­ticipate in collective ventures for a variety of reasons, including desire to profit, or fear of repercussions if they refuse. In any of these cases, an accomplice put to trial might say, “I didn’t intend to help the principal succeed—I was just doing my job.” In general, the defense fails, unless the pressure brought to bear on the accomplice is so great that it constitutes the legal excuse of duress.

Maxwell was tapped by the Ulster Volunteer Force to lead a car of men he knew were up to no good to the location they requested, where they subsequently planted a bomb. In his defense, he said he neither shared their mission nor knew the plan they meant to carry about; hence he lacked the specific participatory intent to further their pipe-bombing of the inn. Under a certain understanding of participation, that would be correct. Indeed, the language of American complicity law suggests that one needs “a stake in the venture,” something more than a mere association, to be an accomplice.¹⁶ But the language is misleading if it suggests that the accomplice must be subjectively attached to the mission of the principal. The actual standard in law is functional, not subjective: one is deemed to satisfy the standard if one’s acts are guided counterfactually by the principal’s aim—however one feels about that aim. Now, it may simply be that the court did not believe Maxwell’s claim to be alienated from the goal. But under general principles of complicity law, whatever Maxwell’s feelings about the bombing, he could be found liable as an accomplice. This is because his acts are fully described, functionally and dynamically, as helping the Irish Republican Army find their target: his agency, over the course of his driving, is fully oriented around that goal. Criminal sanctions aimed at deterring or punishing assistance of unlawful acts will look to this functional characterization.

There are, to be sure, marginal cases. Contrast Maxwell’s situation with that of a gas station attendant filling the IRA car.¹⁷ The attendant may knowingly provide aid, but assuming his motivation was not one of helping in the bombing, his intentional act is plausibly described in terms of the one-off goal of filling the tank with gas, which had a known effect. Filling a gas tank involves cooperation around the micro-tasks of engaging in conversation and com­pleting the payment transaction. It may, if the getaway car is running low on gas, be the diffe­rence between criminal success and failure. But the gas attendant is not generally regarded as one of the members of the criminal gang. Criminal legal systems divide on how to treat such cases. Generally speaking, English and civil (including international criminal) law make knowing or foreseen provision of aid or encouragement a basis for criminal liability, while most U.S. jurisdictions do not. Notably, in France, Vichy collaborator Maurice Papon was held liable for crimes against humanity when he transported French Jews to the Nazis, knowing of their eventual fate though without any interest in bringing it about. A major task for philosoph­ical analysis is determining whether joint action mediated through mere knowledge of effects should be treated as equivalent to jointly goal-oriented activity, or less culpable than the latter, or not at all culpable.¹⁸

Lessons from more basic philosophy of action serve well here: the distinction between inten­tional (purposive) action and action done with the awareness of side effects is real, and thus crucial to understanding how we integrate specific aims into our more general plans. As both Bratman and Duff have argued, while our decisions to act incorporate our awareness of the consequences of those acts, there remains a difference between, say, acting with the intent to cross a lawn, knowing it will track the snow, and acting with the intent to track the snow.¹⁹ In the second case, but not the first, failure to produce the tracks will result in a shift in plans, perhaps a redoubling of the path. The difference, in other words, goes to the core of intentional agency.

Having the analytical distinction in hand does not resolve the moral or legal treatment of someone who acts knowing that effects will be produced. While the distinction may not be relevant to the permissibility of the action, it will bear on the character of the agent, con­tributing to both a retributive assessment and a calculation of the risk posed by him. As T.M. Scanlon notes, it would be peculiar to think, for example, that the permissibility of an act might vary, simply in virtue of the attitude taken by the actor—for example, a bombing raid might be deemed permissible if done by a pilot who seeks a military target, knowing of civilian collateral casualties, but be impermissible if done by a pilot seeking civilian casualties, aware that a mili­tary target will be taken out.²⁰ Nonetheless, we might decide that a distinction between the two cases is relevant to our treatment of the pilots, for one might pose a greater risk of escalating violations of the law of war. The interplay of strongly pragmatic motives and moral consider­ations makes the law of war an especially promising context for investigating these questions, as in the work of Saba Bazargan-Forward and Seth Lazar.²¹

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