55 Pages Posted: 25 Feb 2021
Date Written: 2021
The legal consequences of the riot at the Capitol on January 6, 2021 are hotly debated. Thousands of people were involved in different ways, from pitched battles with police to allegedly inciting the event itself, naturally leading us to complicity—when the law holds someone responsible for the acts of another. The legal issues surrounding determination of liability for the Capitol Riot vividly illustrate the long-standing shortcomings in this area of law. It is characterized by vague, contradictory standards that provide little guidance and force courts to create ad hoc exceptions in order to avoid absurd results. The result is uncomfortably close to an “I know it when I see it” doctrine of complicity, and especially with complex important cases like the Capitol Riot we should hope for more.
Complicity law can be much improved by grounding it in the philosophical theory of joint intention, which focuses on specifying and analyzing conditions under which individual intentions of participants combine to enable working together towards a shared end. We develop an account of such grounding and show how a distinct mens rea of accomplice liability to which it gives rise can guide law and parse complex situations like the Capitol Riot. This account sheds new light on the doctrine of incitement and provides conditions under which even those with relatively little direct involvement in the events of the day can be deemed complicit in some of the crimes that were carried out. Complicity grounded in the proposed account of joint intention holds the promise of a more coherent law that can be more consistently applied and that helps rationalize a number of controversial doctrines while putting others in their proper place.
Keywords: Crimes, Capitol Riot, Complicity Law, Incitement, Criminal Complicity, Accomplice Liability, Washington D.C. , District of Columbia
JEL Classification: K, K00, K14
Suggested Citation: Suggested Citation