Reforming Complicity Law: Trivial Assistance as a Lesser Offense?
20 Pages Posted: 6 Apr 2007
American accomplice law is a disgrace. It treats the accomplice in terms of guilt and, potentially, punishment, as if she were the perpetrator, even when her culpability is often less than that of the perpetrator and/or her involvement in the crime is tangential.
The subject of accomplice liability has received little scholarly attention in the United States except, coincidentally, for a flurry of intellectual activity in the mid-1980s. One of these articles, my own, proposed reform of complicity law in the form of what may be characterized as the "causation approach." The thesis of that article was that the criminal law fails to adequately distinguish between accomplices who are critical parties in a crime and those whose involvement is trivial. To alleviate this problem, the article recommended a statutory distinction between "causal" and "non-causal" accomplices: causal accomplices (persons but for whose assistance the offense would not have occurred) could continue to be convicted of the offense committed by the principal; non-causal accomplices would be convicted of a lesser offense and punished accordingly.
In this article I consider Professor Kadish's approach to complicity, which sees no place for causation in the analysis, and other criticisms directed at the causation approach. I argue here that, notwithstanding the criticisms, the causation approach to accomplice liability is conceptually justifiable and would still make for good legislative reform. However, the causation approach, although preferable to current law, does not go far enough to distinguish between parties and does not express community sentiment as well as it could. Therefore, I now suggest variations on the causation approach, which would also result in a more just system than the present one.
Keywords: model penal code, culpability, sentencing
JEL Classification: K14, K42
Suggested Citation: Suggested Citation