Abstract
In “Abetting a Crime,” Husak puzzles over what, exactly, abettors are held liable for. Having (correctly) dismissed the proposal that derivative liability can ground the imposition of punishment, he then turns to fair labeling concerns to further highlight problems surrounding current Anglo-American complicity laws. The best moral solution, according to Husak, is a drastic but ultimately unworkable revising of our laws. Loosely, he presents a two-horned dilemma: the laws are either insufficiently detailed to respect fair labeling practices or too detailed to be workable. Though I agree with his assessment derivative liability, I advocate for a more optimistic outlook. Specifically, I advocate for having multiple new crimes of “abetting _____,” where the blank is filled in by reference to a particular existing crime for which we think it should be wrongful to help another. This framework offers significant advantages over current complicity laws while escaping the two pitfalls Husak highlights.
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Notes
Doug Husak, “Abetting a Crime,” Law and Philosophy 33 (2014): pp. 41–73.
Id. at 44.
Id. at 64.
Id. at 41. Sometimes the standard Husak holds for a solution to the complicity problem is unclear. At times he uses “adequate” or “wholly satisfactory” to describe what a solution can never be; other times he states any solution is suboptimal. In framing my response to his paper, I struggled with how to situate my own proposal, in part because I was unsure how these terms were interrelated. Without diverging into a paper about these standards, here is what I take the relation to be: a theory can be adequate and satisfactory without being wholly satisfactory, and a theory can be more than suboptimal without being perfect. I take what follows to be at least adequate, satisfactory, and better than suboptimal. Whether any theory produced by a philosopher can be “wholly satisfactory” is a topic I would rather remain silent on.
Thomas Nagel, “War and Massacre,” Philosophy & Public Affairs 1(2) (1972): pp. 123-144.
E.g., having money is a permissible, legal human need whereas access to a drug dealer is not.
The laws I present are from the U.S. However, the proposal engages with derivative liability’s general framework and doesn’t rely on nuance specific to U.S. law.
Joshua Dressler, Understanding Criminal Law, 6th ed (LexisNexis, 2012), Ch. 13.
United States v. Southard 700 F.2d 1 (1st Cir. 1983).
See Abuelhawa v. United States 556 U.S. 816 (2009).
See Michael Moore, Causation and Responsibility (Oxford: Oxford University Press, 2009), Ch. 13.
Rosemond v. United States 572 U.S. 65 (2014).
100 F.2d 401 at 402 (2nd Cir.1983).
44 F.3d 505 (7th Cir. 1995).
Backun v. United States 112 F.2d 635 (4th Cir. 1940); People v. Lauria 251 Cal. App. 2d 471 (1967).
301 F.3d 556 (7th Cir. 1998).
State v. Williams 718 A.2d 721, 723 (N.J. 1998).
572 U.S. at 77.
Id. at. 77, footnote 8.
Husak, supra note 1, at 45.
Robert Weisberg, “Reappraising Complicity,” Buffalo Criminal Law Review 4(1) (2000): p. 222.
Sanford H. Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine,” California Law Review 73(2) (1985): p. 337.
Dressler, supra note 8, at 459.
“Complicity and Causality,” Criminal Law and Philosophy 1 (2007): p. 127.
Note that causally contributing to X is not necessarily the same as causing X. For an opposing view regarding the causal link between accomplice and principal, See Michael Moore’s “Causing, Aiding, and the Superfluity of Accomplice Liability,” University of Pennsylvania Law Review 2(156) (2007), esp. section II.
As Anthony Duff raised in his comments, to some extent I am going too quickly here. Sometimes accomplices have the power to prevent the principal from carrying out a crime—or at least carrying it out in a specific way. Thus, the accomplice does exercise a type of control over the actions of another if we focus on finer-grained act descriptions. However, this type of control is often thought to be the wrong type of control to ground normative responsibility. As Bernard Williams noted in his “A Critique of Utilitarianism,” there is a difference between whether a state of affairs consists in what I do or whether the state of affairs is produced by what I do. The latter includes actions of other agents that I permit, fail to prevent, etc. Though the accomplice controls whether, for example, she gives the principal the code to the safe and thus controls whether the principal commits the action of “breaking into the safe using the code she provided,” she does not, in the typical sense, control what the principal does with the code. She may fail to prevent what the principal does with the code, but unless we are on board with negative responsibility, the failure to prevent is not in and of itself sufficient to ground liability.
Joshua Dressler, “Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem,” Hastings Law Journal 37(91) (1985): p. 111.
For an example, see Kadish, supra note 22, at 353–355.
For an example of an attempt at such an answer, see Chris Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge: Cambridge University Press, 2000).
An anonymous reviewer raised the question of whether, in practice, principals and abettors typically receive the same or comparable sentences. Though I am sure that there have been empirical studies done on this matter, the concern raised here is still present even if principals receive longer sentences than their abettors. First, both aiders and abettors receive the same censure. Second, judges’ behavior could change without any corresponding change in the law. The fact that judges tend to be more lenient towards abettors or harsher towards to principals (if, in fact, they do) doesn’t preclude the real possibility that their preferences could change tomorrow and they could—while still remaining within the confines of the law—give both aiders and abettors the same sentence.
Under the United States Sentencing Commission’s 2018 Guidelines Manual, one such factor considered in adjustment is whether the defendant played a mitigating role (see §3B1.2). However, such adjustments do not always coincide with defendants whose liability is derivative.
Husak, supra note 1, at 47.
Joshua Dressler, Understanding Criminal Law, 5th ed (LexisNexis, 2009): p. 429.
My thanks to Gideon Yaffe for this example.
Though this suggestion does bear some resemblance to Model Penal Code 2.06(3)(ii), it goes beyond what is suggested there in two ways. First, it proposes the creation of specific crimes, instead of one blanket crime of abetting. Second, it divorces the punishment of the abettor from the principal, whereas in 2.06, the two are punished the same.
Though the term “ancillary offenses” was coined by Norman Abrams, I have Husak’s particular articulation of the category in mind, which draws very heavily upon Abrams. Ancillary offenses are offenses that function as surrogates for other primary or core crimes. The State typically anticipates having trouble proving the defendant committed the core crime (but nevertheless believes they did commit it) and so prosecutes them for the more easily proven ancillary crime. (Doug Husak, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2008), pp. 40-41.) To use the examples below, owning a bong could be construed as a surrogate for using drugs: why else would you have a bong? (or so the justification of these laws assert.) However, helping someone secure a bong is very different from helping them secure drugs. A drug deal has very different risks, costs, and procedures than facilitating the purchase a bong.
As an anonymous reviewer noted, the benefit of the framework’s ex ante guidance might be diminished if there is large proliferation of new laws. I will address this point in Section III where I discuss the tightrope any proposal must walk between the two horns of Husak’s dilemma.
Gideon Yaffe, “Intending to Aid,” Law and Philosophy 33 (2014): p. 10; Husak, supra note 1, at 53.
Husak, supra note 1, at 55.
I admittedly dismiss mens rea as the savior of accomplice liability rather quickly. This is because my main goal is to demonstrate that Husak’s pessimism is unnecessary even when granting that the bulk of his criticism is correct. However, to further motivate Husak’s criticism, I will respond to a concern a reviewer raised. If one rejects the claim that the examples have the same mental states, consider modifying Panhandler 1 such that the charitable giver intends for the panhandler to use the money for drugs. Even in the modified case my intuition remains that there is a significance difference between the two cases.
If you find Kermit’s motivation for seeking treatment to be important, add the following stipulation:
While the cough is annoying and affecting other areas of his life, Kermit generally waits at least a week to visit physicians for non-serious matters like this. If not for the upcoming deadline, he probably would have delayed his visit to see if the cough went away on its own.
I initially excluded this clarification from the example because the focus tends to be on the mental state of the abettor and not on the motivation of the principal for seeking help. However, comments from an anonymous reviewer convinced me that this might be relevant for some intuitions—even if I do not share them.
Nagel, supra note 5, at 141–142.
My thanks to Yaffe for initially raising the concern that the proposed framework bars criminalizing abetting a felonious escape, and my thanks to an anonymous reviewer for suggesting I elevate my discussion of this case to the body of the paper.
While admittedly things do get tricky if the conditions of imprisonment are inhumane, I am ok with the implication that it may be legal to help someone escape inhumane conditions, even if such conditions occur within our own prisons.
Gideon Yaffe, Attempts, (Oxford: Oxford University Press, 2010), p. 24.
Or implies—insert whatever verb is needed to reach the required mental state for the law that prohibits aiding a murder.
Which is, to some degree, what we see happening now with regards to civil liability for gun manufactures and mass shootings.
Husak, supra note 1, at 44.
While this is my main goal, the secondary, less ambitious goal is to illustrate that even a partial solution can be a salve for Husak’s despair. To paraphrase an aphorism, “the perfect shouldn’t be the enemy of the good.” We have a system that gets complicity law wrong because it relies on derivative liability. This means that individuals are being punished disproportionately and sometimes are serving significantly longer sentences than they deserve. Even if my account of aiding fails to balance fair labeling with workability, it is normatively better than the current system, no more confusing than “associating oneself with a venture,” and no worse in terms of the balancing act than the current system. This should be cause for at least a little celebration.
Andrew Ashworth, Principles of Criminal Law 5th ed. (Oxford: OUP, 2006): p. 90.
My thanks to an anonymous reviewer for raising this objection. On the other side of the workability concern, Duff noted that the proposal may generate a large amount of work for legislators. While the proposal will probably require legislators and their aides to comb through the statutes and determine which acts of abetting really ought to be criminalized and what the details for those new offenses should look like, I’m suspicious if legislators crafting laws (in other words, doing their jobs) should count against a theory. [If desired, please insert your favorite joke about politicians working.]
Ashworth, supra note 50, at 88.
To borrow two examples from Husak’s own footnote, consider the outcry when a person is charged with manslaughter instead of murder or the debate surrounding whether it is justified or excused when a battered spouse kills her abuser. (Husak, supra note 1, at 60). To this list he also could have added disagreement about whether a specific action should be classified as rape or sexual assault. In specific cases, we see this difference play out when jurors agonize over whether to convict a defendant of first- or second-degree murder, or when a judge reduces manslaughter to negligent homicide (as happened in the case of Officer Jason Van Dyke in the shooting of Laquan McDonald and the case of Office Peter Liang in the shooting of Akai Gurley, respectively).
Examples from Husak, supra note 1, at 61.
Acknowledgements
I am grateful to Larry Alexander, Mark Dsouza, Anthony Duff, Gideon Yaffe, and an anonymous reviewer for comments on a draft. I am also grateful to the attendees of the New Directions in Philosophy Law 2019 Conference at the University of Surrey and the Northern Plains Philosophy Conference 2020 for feedback on this paper.
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Valentine, M.B. Abetting a Crime: A New Approach. Law and Philos 41, 351–374 (2022). https://doi.org/10.1007/s10982-021-09434-6
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DOI: https://doi.org/10.1007/s10982-021-09434-6