Abstract
In the criminal law of many jurisdictions complicity, though not itself a substantive crime but a way of committing a crime, is a doctrine that determines when one person is legally liable for a criminal offense that was committed by another person, typically by being an accomplice. That doctrine has a number of troubling moral implications with respect to responsibility, particularly when complicity is employed as a devise to capture one agent as morally accountable for the actions of another agent and/or the consequences of those actions. I focus on the issue of responsibility for consequences and actus reus and mens rea difficulties with complicity as a moral concept in the light of two cases in which complicity is the basis for ascriptions of moral and criminal responsibility to someone who was not the primary wrongdoer. The book on the topic by Chiara Lepora and Robert E. Goodin provokes my discussion.
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Notes
See Sanford Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine,” California Law Review, 73, (1985).
Publius Syrus, Sententiae, Maxim 139, The Moral Sayings of Publius Syrus, a Roman Slave: From the Latin, English translation by Darius Lyman (London: Barnard & Co.) (1856).
It is unnecessary for my purposes here to go into minute details of the differences in the Model Penal Code and Common Law on complicity or on such things as the Natural and Probable Consequences Rule or the Pinkerton Rule and other complications involving such related concepts as conspiracy in criminal law.
The concept of moral taint that has been championed in the recent philosophical literature is possibly a cousin of complicity. I believe that taint is a very distant relative of moral responsibility. Though I may agree that I am morally tainted by the fact that I am of a certain race and gender, I may have done nothing specific to warrant such, what Marina Oshana calls, “a disfigurement of my moral psyche.” (Marina Oshana, “Moral Taint,” Metaphilosophy 37, (2006).) For example, I have not and am not now engaged in racist or misogynistic behavior, though racism and misogyny by members of my race and gender played a very significant role in the history of my community and country and certainly disadvantaged non-white and women populations (past and present) with respect to their gaining social, political and economic advantages enjoyed by white males. Moral taint has something of the odor of original sin about it for those who are tarred with its brush when they are counted within a certain collective because of accidents of nature. That is one of the reasons I do not take the notion very seriously as the bases for ascriptions of individual moral responsibility.
Chiara Lepora and Robert E. Goodin, On Complicity and Compromise (Oxford: Oxford University Press) (2014).
See John M. Fischer and Mark Ravizza, Responsibility and Control (Cambridge: Cambridge University Press) (1998).
See Peter A. French, Responsibility Matters (Lawrence: University Press of Kansas) (1992).
Andrew Khoury, Moral Responsibility and Quality of Will, Chapter 4, “What We Are Responsible For,” 45–57 at: http://repository.asu.edu/attachments/93155/content/tmp/package-Fs68mq/Khoury_asu_0010E_11091.pdf. In a recent paper, Khoury has shared with me that in a substantial revision of Chapter 4, “The Objects of Moral Responsibility,” Khoury uses the term “elements internal to one’s mental life” rather than “internalities”.
Daniel B. Yeager, “Dangerous Games and the Criminal Law,” Criminal Justice Ethics, Winter/Spring (1997).
Ibid., 9.
Lepora and Goodin, 75–76.
There are occasions in which it may occur more or less simultaneously or, as in driving the getaway car from a bank robbery, it may follow the principal wrongdoing.
Peter A. French, “The Principle of Responsive Adjustment”, Philosophy, October (1984). I was not arguing that our gaining certain kinds of information about the action or, especially, the actor’s condition or moral status at the time of its occurrence would require altering whether we held the agent responsible. In that paper, I focused on cases in which there was insufficient evidence to hold an agent responsible for something untoward at t1 or even evidence that the agent lacked the appropriate intention at t1 to support blaming the agent for the event. In such cases, we might be inclined to generosity and let the agent off the hook. But then at a subsequent time the agent repeats the actions of t1 and our inclination is to blame the agent for the early untoward event, not because we are convinced that the agent at t1 had the appropriate intention then that motivated the agent’s actions, but because at t2 the agent has acted with intention in a repetitive action.
Andrew Khoury, “Synchronic and Diachronic Responsibility,” Philosophical Studies, 165 (2013), 735–752.
More specifically, if X is responsible for an action A at t1, we should believe that X at t1 acts from a self-referential mechanism that is moderately reasons responsive (borrowing the term and the account from John M. Fischer and Mark Ravizza, op. cit.) and that X is capable of caring about the moral quality of her actions. That is, we assume that X at t1 had certain neuropsychological functional capacities, including the ability to act intentionally, the ability to make rational decisions, the ability to respond to events and criticisms by altering intentions and resultant behaviors (that is, the ability to appreciate reasons as relevant to her act choices and the ability to react to those reasons appropriately), acknowledges ownership of her actions, and evidences the capacity to participate in moral dialogue and address. If we are wrong about the agent possessing those functional capacities, we generally retract the responsibility ascription.
The accident is variously described as having been due to a blown tire or drunken driving. Perhaps it was both.
Some of the police who worked the case were convinced that Miller was much more involved in the murders than he confessed to in his version of what transpired, but Miller died in prison without ever changing his story and claimed he only helped Worrell dispose of the bodies because he loved him and wanted to cover-up what he had done.
Quotes are from various Colorado newspaper stories, such as The Denver Post, (November 19, 1999), “Judge Gives Manes 6 Years,” story by Howard Pankratz and Kevin Simpson.
Robert Weisberg, “Reappraising Complicity,” Buffalo Criminal Law Review, April 2000, 217–281, 227 [quoting from State v. Tally, 15 So. 722, 737 (Ala. 1894)].
In certain versions of the story of the two, Worrell comes off as something of an animal driven by uncontrollable impulses and Miller as providing him with the occasions that arouse those impulses and the time and location for them to result in murders. Miller then appears the morally worse of the two.
Manes had an additional moral and legal problem, however, in that his complicitous act of selling the weapon, unlike chauffeuring someone around who was trying to pick-up girls, was, in itself, knowingly committing a crime by selling minors a TEK-DC9. Consequently, he already was involved with the murderous teenagers as a co-principal in a criminal activity.
Lepora and Goodin, op, cit., 77.
Andrew Khoury, “Responsibility, Tracing, and Consequences,” The Canadian Journal of Philosophy 42 (2012) 187–208, 202.
Larry Alexander, “Insufficient Concern; A Unified Conception of Criminal Culpability,” California Law Review, 88, (2000), 931.
Alan C. Michaels, “Acceptance: The Missing Mental State,” Southern California Law Review, 71 (1998).
Aristotle, Nicomachean Ethics, Book III.
David Luban, “Contrived Ignorance,” The Georgetown Law Journal, Volume 87, (1999), 957–980.
Lepora and Goodin, op.cit., 140.
Lepora and Goodin, op.cit., 157.
The term is owed to Michael Zimmerman. See his “Luck and Moral Responsibility” Ethics, Vol. 97, 2, (1987) 374–386.
Andrew Khoury, Moral Responsibility and Quality of Will, op.cit., 45.
See for example Daniel Statman (ed.) Moral Luck (Albany: State University of New York Press) (1993).
Excluding those science fiction scenarios of brain manipulation popular in the philosophical literature.
A case might be made that agents are never responsible for the consequences of their actions, but that would take us too far afield for present purposes.
Lepora and Goodin, op.cit., 149.
I owe this important point to Andrew Khoury and his work on responsibility for consequences. See Khoury, “Responsibility, Tracing, and Consequences,” op. cit.
I am especially grateful to the work of Andrew Khoury on topics that relate to this paper. Extensive discussions I had with Andy over a number of years regarding his work on responsibility topics refocused my thinking about how issues such as complicity should be addressed in moral responsibility theory. I also want to thank Michael McKenna and Zachary Goldberg for discussions that sharpened my thinking about related matters.
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This title is derived from a comment by Christa Wolf in her Patterns of Childhood. (New York: Farrar, Straus and Giroux, Inc., 2nd printing) (1984), 36. “To demonstrate is derived from the Latin ‘monstrum,’ which originally meant ‘showpiece,’ or ‘model,’ which suits you perfectly. But ‘monstrum’ can also become ‘monster.’” About the Wolf book, M. Cathleen Kaveny writes: “Complicity is frequently perceived to be a moral ‘monster’ whose tentacles have become intertwined with the ordinary stuff of our daily lives, our ‘model’ lives.” In “Complicity and Moral Memory,” e-published on the University of Chicago Web Forum, (March 2004), http://divinity.uchicago.edu/sites/default/files/imce/pdfs/webforum/032004/kaveny.pdf.
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French, P.A. Complicity: That Moral Monster, Troubling Matters. Criminal Law, Philosophy 10, 575–589 (2016). https://doi.org/10.1007/s11572-014-9341-2
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DOI: https://doi.org/10.1007/s11572-014-9341-2