Joint Intention and Accomplice Liability
50 Pages Posted: 23 Mar 2017
Date Written: February 14, 2017
When can one be held criminally liable for the criminal acts of another? This central question of accomplice liability law has spawned conflicting precedents and a confused, inconsistent doctrine. One prominent approach, at the core of the Joint Criminal Enterprise doctrine used by international courts as well as of the law used in a number of high-profile domestic cases, is to base joint criminal liability on foreseeability. However, the foreseeability standard entails abandoning mens rea and individual intentions as necessary elements of a crime, and so departs from some of the law’s core commitments. The other main approach, based on an influential opinion by Learned Hand, ties joint criminal liability to intention. In so doing, it avoids the problems of the foreseeability doctrine, but it is too ambiguous to be applied consistently.
We propose a framework that grounds this area of law in a considered account of joint intention while preserving the importance of both mens rea and individual intention in the assignment of criminal liability. This approach provides a resolution of long-standing confusions about the meaning and consequentialness of accomplice actions and offers a unified, coherent doctrine to replace a series of disparate and ad hoc conclusions in case law. A key concept in our approach is one of standing in reserve, which extends the coverage of a joint intention beyond the immediate participants in the actus reus and offers a systematic way of addressing a series of challenging cases including felony murder rules, organized crime, state-sponsored violence, and terrorist sleeper cells.
Keywords: mens rea, intention, criminal law, conspiracy, accomplice liability, complicity
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