Abstract
I argue, contrary to standard claims, that accomplice liability need not be a causal relation. One can be an accomplice to another’s crime without causally contributing to the criminal act of the principal. This is because the acts of aid and encouragement that constitute the basis for accomplice liability typically occur in contexts of under- and over-determination, where causal analysis is confounded. While causation is relevant to justifying accomplice liability in general, only potential causation is necessary in particular cases. I develop this argument through the example of the role of U.S. legal officials in abetting the acts of unlawful interrogation that have taken place since 2001. I also suggest that there may be a limited justification for ex post ratificatory accomplice liability.
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Notes
My argument throughout is deeply indebted to Sanford Kadish’s great (1985) article. I am also grateful for comments and criticism made by John Gardner, Andrew Simester, Claudia Card, Margaret Walker, Iris Marion Young, and audiences at the Oxford Conference on Complicity (2005) and a special session at the Eastern Division American Philosophical Association meeting (2006).
18 U.S.C. § 2340–2340A make torture a serious criminal offense; 18 U.S.C. §2441 criminalizes commission of a “war crime.”
Jay Bybee, now a federal appellate judge, was the signatory author of the most notorious of these memos, the August 1, 2002 Memorandum concerning “Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Forces in Afghanistan.” John Yoo, law professor at the University of California-Berkeley, was the substantive author of the memorandum. This memorandum, and other legal apologies for abuse have been published in Greenberg and Dratel (2005). Still unreleased (and unleaked) is a memorandum, also authored by Yoo, from March 2002, which detailed permissible interrogation techniques.
The U.K. position is stated in Johnson v. Youdan [1950] 1 KB 544 (KB), while the classic U.S. position comes from United States v. Peoni 100 F.2d 401 (2d Cir. 1938), where Judge Learned Hand stated that an accomplice must “associate himself with the venture ... participate in it as something he wishes to bring about.” The Model Penal Code, despite flirtation with a knowledge standard, requires a “purpose of promoting or facilitating” the commission of the crime. For discussion of these points, see Kadish (1985), Simester (2004) and my (2000).
This limiting role is an important reason, as Andrew Simester argues, to resist broadening of mens rea requirement to include recklessness (Simester 2004).
For masterful discussions, see Smith (1991), esp. ch. 3, “Causation’s Role in Complicity.”
Gardner (2007).
See, e.g., State v. Gelb, 515 A.2d 1246 (1986) (failed attempt to aid sufficient for accomplice liability).
M.P.C. §2.06(3), (3); §5.02(1).
([1987]) 2 NZLR 282; 1987 NCLR Lexis 625). I am grateful to Andrew Simester for the reference.
1897 NZLR Lexis 625, *13.
David Hume (1748), Section VII, Part II.
Actually, the troubles of a counterfactual account run deeper, since even the confederate’s alert doesn’t seem to be a cause of the burglars’ flight: they would have flown anyway, given Larkin’s presence. The account might be saved by locating a chain of mediating events, such as the vibration of air molecules close to the confederate’s mouth, which then affect other molecules, finally reaching the ears of the burglars that will single out the confederate’s act. But, arguably, the strategy of rescuing the causal claim by finding meditative events is motivated by an unanalyzed assumption of causation, not by the theory of counterfactual dependence. The solution, in other words, comes at the price of hidden circularity.
Gardner (2007).
As this amazingly colorful case was actually an impeachment proceeding against Judge (!) Tally, the full citation is State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722 (1894). The victim was one Ross, who had seduced Tally’s sister-in-law; his killers were the brothers of Tally’s sister-in-law.
15 So. 722, 738–39.
To be sure, there are conceptions of causation in which causal connections are explicated in terms of probabilistic effects, i.e., c is a cause of e if Prob(e given c) is greater across all “test situations” (relevant possible worlds) than simply Prob (e). See, for example Cartwright (1979). But cases like these, where background conditions (test situations) are not held equal, are ones in which probabilistic dependence fails to hold true, hence in which there is no causation.
The Model Penal Code permits attempted solicitation to count as solicitation, and solicitation to count as a basis of complicity, through the intersection of § 5.02(2) (solicitation) and §2.06 (3) (liability for the conduct of another).
I put aside the now somewhat antique question whether rational considerations can, in fact, be causes. I agree with Donald Davidson that reasons can be causes, though they cannot be brought under lawlike generalization (see Davidson 1980).
Kadish (1985). For Kadish, a presumption of free will on the part of the principal is what forces complicity into this role. I think one need only accept underdetermination, rather than free will, as the basis for the failure of regularity or dependence relations between secondary acts and principal crimes.
Kadish (1985), p. 359. Smith suggests that an evidentiary presumption is at work in complicity doctrine: possible causation supports an inference of actual causation in the case at hand. But accomplice liability will stand even if it is hardly likelier than not (let alone likely beyond a reasonable doubt) that P’s act causally depended on S’ assistance or encouragement. See Smith (1991), ch. 3.
Under current free speech law in the U.S., even speech advocating lawless conduct is protected, unless it is directed at and immediately likely to incite law violation. Brandenurg v. Ohio, 395 U.S. 444 (1969). The requirement that incitement be immediately likely to prompt criminal action was found first in the opinion of Judge Learned Hand in Masses Publishing v. Patten, 244 F. 535 (S.D.N.Y. 1917).
This is emphatically not meant to sound smug about the U.S. position: U.S. protection of free speech seems to go hand-in-hand with a much more tightly bounded spectrum of electable political positions.
These hypotheticals come from Kadish and Schulhofer (2001).
The jurisdictions that follow the M.P.C. on attempted aid liability are: Arizona (A.R.S. §13–301); Arkansas (A.C.A. §5–2–402), Delaware (11 Del. C. § 271), Hawaii (H.R.S. §702–222), Illinois (720 I.L.C.S. § 5/5–2), Kentucky (.R.S. §502.020), Maine (17 A.M.R.S. §57), Montana (Mont. Code. Anno. §45–2–302), New Hampshire (R.S.A. § 626: 8), New Jersey (N.J. Stat. § 2C:2–6), Oregon (O.R.S. §161.155), Pennsylvania (18 Pa. C.S. § 306), Tennessee (Tenn. Code. Ann. § 39–11–402), Texas (Tex. Penal Code § 6.03).
John Yoo, in particular, has insisted that his work, and the work of the O.L.C. generally, kept legal and policy considerations separate. See http://www.pbs.org/wgbh/pages/frontline/torture/interviews/yoo.html.
The shift in the U.K. towards a recklessness standard is well-discussed by Simester (2004).
Alternatively, we might think of this in the executive case, and derivatively in the lawyers’ case, as a situation for omissive, command responsibility, where what is punished is the failure to prevent the abuse, not their reckless occasioning. Command responsibility has an unhappy history in the U.S., in the much criticized Yamashita case, Yamashita v. Styer, 327 U.S. 1 (1946), but it remains a principle of international and domestic military law. Under the I.C.C. statute, Art. 28, military commanders must have “had reason to know” that crimes would be committed by their subordinates, while it must be shown that civilian superiors “knew or consciously disregarded information which clearly indicated” that crimes would be committed.” Arguably that standard was met, given the likely consequences of “Gitmoizing” inteliigence gathering in Iraq.
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Kutz, C. Causeless complicity. Criminal Law, Philosophy 1, 289–305 (2007). https://doi.org/10.1007/s11572-006-9026-6
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DOI: https://doi.org/10.1007/s11572-006-9026-6