Download - Reassessing Professor Dressler's Plea for Complicity ...offerofproof.net/wp-content/uploads/Volumes/Volume 40/40.1/40.1.1... · Reassessing Professor Dressler's Plea for Complicity

Reassessing Professor Dressler's Plea forComplicity Reform: Lessons from Civil

Law Jurisdictions

Luis E. Chiesa*

I. INTRODUCTION

In an essay that has not garnered the attention it deserves, ProfessorJoshua Dressler cogently argued in favor of a significant overhaul in Amer-ican complicity law.' The most interesting claim advanced by Dressler wasthat "trivial assistance" should be punished as a lesser offense. 2 That is, heargued that accomplices that help the perpetrator consummate the crime byproviding "minor" or "trivial" assistance are generally less blameworthythan participants who provide significant or essential aid to the perpetra-tor.3 This, in turn, warrants punishing minor accomplices less than the ac-tual perpetrator. It should also lead to punishing minor accomplices lessthan "major" or "substantial accomplices."

The intuitive appeal of Dressler's thesis is readily apparent from one ofthe examples he discusses in the essay. In United States v. Ortega,4 the de-fendant sat in the back of a van when a drug transaction took place.5 Afriend of the defendant entered the vehicle and "poked around looking forsomething." 6 He then asked the defendant "where is it?" - and the defend-ant replied "over there" while pointing to an area on the floor of the van.The friend looked in the place indicated by the defendant and found a bag

* Professor of Law and Director of the Buffalo Criminal Law Center, SUNY Buffa-lo Law School, The State University of New York. I am indebted to Professor Joshua Dress-ler for taking the time to read the piece and provide me with valuable feedback.

I. Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Of-fense?, 5 OHIO ST. J. CRIM. L. 427 (2008).

2. Id. at 443.3. Id.4. United States v. Ortega, 44 F.3d 505 (7th Cir. 1995).5. Id. at 507.6. Id.7. Id.

1

CRIMINAL AND CIVIL CONFINEMENT

of heroin. Defendant was charged with "aiding and abetting the possessionof heroin with intent to distribute it" and with "conspiracy to distribute her-oin."9 The conspiracy charge was dismissed when the jury hung on it, pre-sumably because the prosecution was not able to prove beyond a reasona-ble doubt that the defendant had agreed to help the perpetrator possess thedrugs with intent to distribute them.'0 Nevertheless, the defendant wasconvicted as an accomplice to the perpetrator's possession with intent todistribute." Writing for the Court of Appeals, Judge Posner affirmed theconviction, contending that pointing to the bag and saying that it was "overthere" was enough assistance to satisfy the conduct element of complici-ty.12

While Dressler does not fully flesh out what he finds disturbing aboutOrtega, it is not difficult to figure out why he is concerned by the outcomeof the case. Given that American complicity law punishes accessories asseverely as perpetrators, the defendant in Ortega will receive the same pun-ishment as the person who actually retrieved the heroin and held it with theintent to sell. 13 This result is counterintuitive. Surely the person who buysthe drugs and secures the sale is more blameworthy than the person whohappens to be inside the automobile where the drugs are stashed and pointsout that they are "over there." Similarly, the person who hands over a knifeto someone else, knowing that the knife will be used to stab a person, issimply not as blameworthy as the person who actually stabs the victim. Bythe same token, giving someone a pen so that they can forge a document isjust not as worthy of condemnation as actually forging the document.

That the law of complicity fails to account for the different levels of cul-pability for these acts is troubling. As a result, Dressler suggests that "trivi-al assistance" should be punished less than actually perpetrating the offenseor than providing "substantial" assistance to the perpetrator.14 More specif-ically, he argues that:

The best reform of complicity law may be to distinguish exclusively onthe basis of the substantiality of the actor's participation in an offense,without direct consideration of causation principles. A person whom thefact-finder determines was a substantial participant (with the requisitemens rea, of course), and only such a person, would be convicted of thesame offense (and subject to the same punishment) as the principal,

8. Id.9. Id. at 506.

10. Id.11. Id.12. Id. at 507-08.13. Id.14. Dressler, supra note 1, at 447.

2 [Vol. 40: 1

LESSONS FROM CIVIL LAW JURISDICTIONS

based on traditional derivative liability principles. ... In regard to in-substantial participants in a crime, it would constitute poor policy,whether one applies utilitarian or just-deserts philosophy, to allow sucha person to escape criminal liability. Minor assistance should constitutea separate and lesser degree of offense than the crime committed by theprincipal party. 15

Although Dressler's proposal is quite sensible, it raises an important is-sue that is left unresolved. How should a judge or jury go about determin-ing whether an accomplice's contribution is "substantial" or "insubstan-tial"? This is a matter of considerable difficulty. Nevertheless, Dresslersummarily dismisses it by stating that:

"Substantial participant" concededly is an imprecise term, but certainlyno more so that the doctrine of proximate causation, which invites thefact-finder to draw justice-based lines of responsibility. Ultimately, theissue here is whether the accomplice's role in the planning or commis-sion of the offense is sufficiently great that it is just to hold her account-able for-to derive liability for-the offense committed by the princi-pal.16

Dressler's solution to the thorny problem of how to non-arbitrarily dis-tin uish between substantial and insubstantial participation is unsatisfacto-ry. Pointing out that the doctrine of proximate causation is full of vagariesand imprecisions does not justify crafting a new doctrine that generates ad-ditional vagaries and imprecisions.18

To the extent possible, we should avoid infusing the criminal law withmore vagueness than what is currently tolerated. Furthermore, it would

15. Id. at 448.16. Id.17. See id.18. It is important to note, however, that Dressler originally proposed that the law dis-

tinguish between "causal" and "non-causal" accomplices. According to this approach, ac-complices who give aid that is considered a "but-for" cause of the consummation of the of-fense should be punished more severely than those who assist by providing contributionsthat are not "but-for" causes of the consummation of the offense. This approach is objec-tionable. Nevertheless, as Dressler concedes, reforming the criminal law to adopt such aview of complicity is likely to fail because "[t]he causation-plus approach would necessitatecomplex statutory offense and/or sentencing distinctions that might deter even reform-minded lawmakers from proceeding. In these circumstances, the observation that 'the best isthe enemy of the good' comes to mind." Id.

Given that Dressler ultimately recommends that law reformers distinguish be-tween "substantial" and "insubstantial" accomplices rather than between "causal" and "non-causal" accomplices, the remainder of this essay focuses on the "substantial" vs. "insubstan-tial" accomplice distinction. Like Dressler, I am skeptical that law reform based on distin-guishing between "causal" and "non-causal" accomplices will prove to be workable.

2014] 3


simply be intolerable to do away with proximate causation principles, for acriminal law based solely on but-for causation would absurdly expand thescope of criminal liability. Without proximate cause principles, for exam-ple, the parents of the perpetrator of a homicide would be liable for thehomicide committed by their child, for the death of the victim would nothave taken place but-for the parents' decision to have the child that eventu-ally ended up committing the homicide. Holding parents liable for thecrimes committed by their children is not only unjust, but also absurd.Therefore, it is essential that the law create an additional level of causal in-quiry that discriminates between causal contributions that are relevant tothe criminal law and causal contributions that are irrelevant. This is pre-cisely the objective of the doctrine of proximate causation. 19

Given that a criminal law without proximate causation will generate un-fair, intolerable, and absurd results, we must accept whatever imprecisionresults as a consequence of this doctrine as a necessary evil.

In contrast, a criminal law that fails to distinguish between substantialand insubstantial participation is tolerable. Perhaps such a criminal law issomewhat unfair because it paints the doctrine of participation with toobroad a brush, but it surely is not absurd or arbitrary. As a matter of fact,many of the world's jurisdictions fail to distinguish between different de-grees of complicity.20 This, of course, does not justify the failure to distin-guish between substantial and insubstantial complicity. But it does debunkthe idea that we should tolerate the imprecision inherent in distinguishingsubstantial from insubstantial complicity because we tolerate the vagariesinherent in the doctrine of proximate causation. Some principles of proxi-mate causation are essential to any non-arbitrary system of criminal justice.In contrast, distinguishing between substantial and insubstantial participa-tion is not essential to a non-arbitrary criminal law.

In sum, contrary to what Dressler suggests, the vagaries inherent indrawing lines between substantial and insubstantial participants should notbe tolerated solely because we tolerate ambiguities in other doctrines ofcriminal law.21 As a result, the additional imprecisions that are created bydistinguishing substantial from insubstantial contributions to crime shouldbe tolerated only if they can be minimized to acceptable levels.

Fortunately, such imprecisions can in fact be reduced to tolerable levels.I am confident that this can be done because civil law jurisdictions have for

19. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928).20. See Marina Aksenova, Complicity in International Criminal Law: A Case for

Clarification (Apr. 20, 2012) (unpublished PhD dissertation, European University Institute),available at http://law.MC.edu/files/3313/3397/7796/Aksenova.pdf.

21. Joshua Dressler, Reassessing the Theoretical Underpinnings of Accomplice Lia-bility: New Solutions to an Old Problem, 37 HASTINGS L.J. 91, 124 (1985).

4 [ Vol. 40: 1


decades distinguished between substantial and insubstantial contributions. 22

Consequently, they have developed standards that aid the fact finder inmaking such distinctions.23 In the remainder of this brief essay, I explorethe ways in which European Continental jurisdictions have distinguishedsubstantial from insubstantial complicity in an effort to develop standardsthat may help infuse much-needed precision into the vague offense of "triv-ial assistance" that Dressler encouraged American legislatures to adopt.

This project is important for a couple of reasons. First, having a moredeveloped sense of what should be punished as trivial vis-a-vis substantialassistance may make Dressler's proposal more attractive to law reformers.This would be a salutary development, as Dressler is surely right that it isunfair for American law to fail to systematically distinguish between sub-stantial and insubstantial contributions to crime. 24 Second, the UnitedStates Sentencing Guidelines provide a "downwards adjustment" in offenselevel if the defendant is a "minimal" 25 or "*no26 participant in the of-fense.27 Alas, the standard proposed by the Guidelines to discriminate be-tween minimal or minor participants and substantial participants is exces-sively vague. As a result, judges applying the Guidelines have littleguidance when determining whether a downward adjustment for minimalparticipation is warranted. By providing concrete standards for discriminat-ing between minimal and substantial participants, this essay seeks to helpfederal judges make downward adjustments for minor participation in amore principled manner.

The essay is comprised of five parts. Part II presents a brief overview ofhow civil law jurisdictions distinguish between substantial participationthat is punished as severely as perpetration and insubstantial complicity,which is punished considerably less than perpetration. Part III discusses aninfluential theory advanced by one of Spain's leading criminal theoriststhat posits that the scarcity of the good or service provided by the accom-plice is relevant to determining whether his assistance is substantial or in-substantial. Part IV proposes a framework for differentiating between sub-stantial and insubstantial complicity in cases in which the assistanceprovided by the accessory is neither a good nor a service. It also brieflydiscusses the thorny problem of complicity by omission and how to distin-guish between omissions that substantially facilitate the perpetration of the

22. Id.23. Id.24. Id.25. U.S. SENTENCING GUIDELINES MANUAL § 3B 1.2(a) (2007) (reducing offense level

in the case of a minimal participant by four offense levels).26. Id. § 3B1.2(b) (reducing offense level in the case of a minor participant by two

offense levels).27. Id. § 311.2.

2014] 5


offense and omissions that do not. A brief conclusion follows.

II. DISTINGUISHING SUBSTANTIAL FROM TRIVIAL COMPLICITY: THE CIVILLAW EXPERIENCE

Complicity law in most European continental jurisdictions distinguishesbetween "essential" and "non-essential" (i.e. trivial) complicity. Essentialaccomplices provide assistance to the perpetrator that is necessary to thecommission of the offense.28 That is, the nature of the essential accom-plice's contribution is such that the perpetrator would not be able to com-mit the offense without the essential accomplice's help.29 In contrast, non-essential or trivial accomplices are those that contribute to the commissionof the offense by assisting the perpetrator with acts that are not necessary oressential to committing the offense. Since the assistance provided by thetrivial accomplice is considered insubstantial, in many civil law jurisdic-tions trivial accomplices are punished less severely than perpetrators. Thismakes sense because a person who contributes with an act that is not neces-sary for the commission of the crime is not as dangerous or does not de-serve the same punishment as the perpetrator. A person who provides thematch used to light a building on fire (trivial accomplice) is not as deserv-ing of punishment and is not as dangerous as the one that actually lights thebuilding on fire (perpetrator).

In contrast, essential accomplices are punished as severely as perpetra-tors.30 In such cases, it is believed that there are no compelling retributiveor deterrence based reasons that justify punishing the essential accompliceless severely than the actual perpetrator. 31 A person who contributes to acriminal offense by way of an act without which the crime could not becommitted (essential accomplice) is as dangerous or deserving of punish-ment as a person who actually commits the crime.32 Accordingly, the puni-tive framework that applies in cases of essential complicity is the same asthe one that applies to cases of true perpetration. 33

A. The Problem of Distinguishing Essential Complicity from TrivialComplicity

Generally speaking, a person is an essential accomplice if he contributesto the commission of the crime by engaging in an act that is necessary for

28. Dressler, supra note 1, at 431.29. Id.

30. Id. at 436.31. Id.32. See id. at 436-37.33. See id.

6 [ Vol. 40: 1


the consummation of the offense. 34 If, on the contrary, the actor contributesto the crime through an act that is not necessary for the consummation ofthe offense, then the conduct is punishable as trivial complicity.3 5 Trivialaccomplices are often defined in negative terms. A trivial accomplice isthus frequently defined as someone "whose contribution cannot be classi-fied as perpetration, instigation or essential complicity." 36

The chief problem in this context is determining when the person's act isnecessary for the consummation of the crime and when it is not. The issueis of significant importance, for-as was pointed out in the previous sub-section-in civil law jurisdictions, trivial accomplices are often punishedconsiderably less than essential accomplices. 37 According to the 2004 Puer-to Rico Penal Code, for example, trivial complicity is punished by half theterm of imvrisonment that would apply to perpetrators, up to a maximum often years.3 As a result, the difference in the punishment that could be im-posed on essential and trivial accomplices can sometimes be significant. Inmurder cases tried under the 2004 Puerto Rico Penal Code, for example, anessential accomplice may be punished to a maximum of ninety-nine yearsin prison, while a trivial accomplice may be punished to a maximum of tenyears in prison.3 9 Due to the dramatically different way in which essentialand trivial accomplices are punished, courts and commentators in civil lawjurisdictions have devoted considerable attention to developing criteria thatmay be invoked to distinguish between these two types of complicity. 40

The most obvious way of distinguishing between substantial and insub-stantial complicity is by focusing on whether the contribution of the ac-complice is necessary for the consummation of the offense. More specifi-cally, an essential accomplice may be defined as an actor who contributesto a crime through an act without which the offense could not have beencommitted.41 The problem with this definition is that it only shifts our at-tention to a different (and equally problematic) inquiry. Even if acts that arenecessary or essential for the consummation of the crime are defined asthose without which the crime could not have been committed, the trulyimportant question still remains unanswered: how should we determine ifan act is essential, necessary, or of such a nature that without it the crime

34. Id. at 429.35. Id. at 431.36. FRANCISCO MUNOZ CONDE & MERCEDES GARCIA ARAN, DERECHO PENAL PARTE

GENERAL 444 (8th ed. 2010).37. Dressler, supra note 1, at 433.38. P.R. LAWS ANN. tit. 33, § 4664 (2004).39. Id.40. Francis Bowes Sayre, Criminal Responsibility for the Acts of Another, 43 HARV.

L. REV. 689, 695 (1930).41. Dressler, supra note 1, at 429.

2014] 7


could not have been committed? 42 No matter how the question is asked, theessence of the inquiry is the same: when should an act be classified as es-sential to the commission of a crime? Unfortunately, defining an essentialact as one that is necessary for the commission of the offense amounts tobegging the question and therefore does not solve the problem.

B. Distinguishing Essential from Trivial Complicity

1. Necessary Cooperation as Conduct that Significantly Increasesthe Probability that the Crime Will be SuccessfullyConsummated

One way to determine if an act is necessary for the consummation of acrime is to ask whether the perpetrator would have obtained the accom-plice's contribution from another source.43 If the question is answered af-firmatively, it can be concluded that the complicity was not essential sincethe accomplice's contribution should not be classified as necessary when itcould have been obtained by other means.4 Nevertheless, if the question isanswered negatively, it can be argued that the cooperation was necessarysince it seems wise to conclude that the accomplice's contribution is neces-sary if it could not have been obtained by other means. The following ex-ample illustrates this approach:

John asks Samantha for $100,000 to buy a machine that makes counter-feit bills. John is unemployed so he does not have the capacity to gener-ate sufficient income to buy the machine. Samantha lends John themoney. John buys the machine with the money Samantha loans himand begins to make counterfeit bills. Was Samantha's conduct neces-sary for the consummation of the crime?

One way of determining whether Samantha's contribution (loaning John$100,000) was essential for the consummation of the offense of counterfeit-ing dollar bills is asking if John would have been able to obtain what he gotfrom Samantha ($100,000) in another way. If the answer is no, the conclu-sion should be that Samantha's cooperation was necessary for the con-summation of the crime. On the other hand, if the answer is yes, it can beconcluded that Samantha's cooperation was not necessary for the consum-mation of the offense. At first glance, in this example, it seems that Johnwould not have been able to get what he obtained from Samantha in anoth-er way since he was unemployed and did not have the capacity to generateincome. Therefore, it is sensible to conclude that the help given by Saman-

42. Hereinafter, the terms essential and necessary will be used indistinctly.43. Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of

Doctrine, 73 CALIF. L. REv. 323, 335 (1985).44. Id. at 337.

8 [Vol. 40: 1


tha was essential for the consummation of the crime.The example gets complicated if the following fact is added to the hypo-

thetical situation: John bets on horses various times per week, hoping towin a one million dollar prize. In light of this new fact, can it still be arguedthat Samantha's help was essential for the consummation of the criminaloffense? Now the answer to the question is unclear, for it can be arguedthat John could have obtained the money another way-by winning theprize money. Does this mean that, in light of John's gambling habits, Sa-mantha's help should not be considered essential for the consummation ofthe crime? I do not believe so. Even though it is possible for John to obtainthe money otherwise-in this case by winning the prize money-it seemshighly improbable that this would occur. The hypothetical question posedat the beginning of this section must thus be modified to account for thesehighly improbable scenarios. The question should not be whether the sub-ject could have obtained what he got from the accomplice otherwise, butrather whether the accomplice's contribution significantly increased theprobability that the crime would be consummated successfully. If the an-swer is that the accomplice's contribution significantly increased the prob-ability that the crime would be consummated successfully, it should beconcluded that the accomplice's help was essential. On the other hand, ifthe conclusion is that the accomplice's contribution did not significantlyincrease the probability that the crime would be consummated, it should beconcluded that the help provided was not essential.

Once the hypothetical question is asked this way, it is easier to see whySamantha's loan was essential for John to commit the crime. While it maybe true that John could have obtained the sum by winning the prize money,it is also true that obtaining this amount in that manner (or in any othermanner) is highly improbable. Consequently, if John did not receive theloan, the commission of the crime would have been improbable. Therefore,it should be concluded that loaning John the money is an act of essential,rather than trivial, complicity. It is an act that significantly facilitates thecommission of the crime and thus amounts to providing a contribution thatis necessary for the commission of the criminal offense.

According to this approach, the arguments in favor of concluding that acontribution constitutes essential complicity become more powerful themore that the act increases the perpetrator's probabilities of successfullyconsummating the crime. For example, in John's case the $100,000 signifi-cantly increases his probabilities of successfully carrying out the crime, forit eliminates an obstacle that makes the consummation of the crime im-probable, namely the lack of financial resources to purchase the counter-feiting machine. Nevertheless, the arguments in favor of concluding thatthe accomplice's contribution constitutes essential cooperation are weak ifthe accomplice's assistance fails to significantly increase the perpetrator's

2014] 9


probability of successfully consummating the crime. Thus, for example, aperson who lends a telephone to an extortionist who then uses it to call hisvictim is not an essential accomplice. Neither is a taxi driver in Manhattanwho takes a person to a restaurant where he intends to kill his wife. Thehelp provided in both of these cases-lending a telephone and transportinga person in a taxi-simply eliminates obstacles that could have been easilyovercome by the actors. In the first case, the obstacle could have beenovercome by using a payphone, while in the second case the obstacle couldhave been overcome by taking one of the many other taxis available inManhattan. Therefore, it does not make sense to argue that in either of the-se cases the contributions provided by the accomplice significantly in-creased the probabilities of the perpetrator successfully consummating thecrime.

III. THE RELEVANCE OF THE SCARCITY OF THE GOOD OR SERVICEPROVIDED

One way to determine whether the accomplice's help significantly in-creased the probability of the successful consummation of the crime is toexamine the scarcity of the good or service provided by the accomplice. 45

As a general rule, obtaining a scarce good or service that is needed to carryout the crime significantly increases the probability of consummating theoffense because it removes a serious obstacle.46 For example, obtaining$100,000 (a scarce good) is a greater obstacle to the commission of a crimethan obtaining a mobile phone (an abundant good). This is why the Spanishcriminal law theorist, Enrique Gimbernat Ordeig, famously proposed whathe called the "theory of the scarcity of goods" as a way to distinguish be-tween essential and trivial complicity.47 According to Gimbernat, contribu-tions that consist of providing a scarce good or service to the perpetratorshould be considered essential complicity. 4 8 Conversely, help that consistsof offering an abundant good or service should be considered trivial com-plicity.49

Gimbernat also points out that determinations of scarcity should be madeaccording to the concrete circumstances of the author and by taking intoconsideration the time and place in which the accomplice's contributiontakes place.50 This is an important insight, since what is abundant in a cer-

45. ENRIQUE GIMBERNAT ORDEIG, AUTOR Y C)MPLICE EN DERECHO PENAL 127-28(2006).

46. Id.

47. Id.

48. Id. at 130.49. Id.

50. Id. at 133.

10 [ Vol. 40: 1


tain place and time can be scarce at another time and place. Certainly, amobile telephone is abundant in New York, while it is likely scarce in asmall town in rural Cuba. Therefore, offering a mobile telephone in the firstcase amounts to providing an abundant good and should thus be classifiedas essential complicity. On the other hand, offering a mobile phone in thesecond case amounts to providing a scarce good and should thus be consid-ered essential cooperation. The reason for the distinction is obvious. Offer-ing a cell phone in New York does not remove an obstacle that would makethe commission of the crime less likely (e.g. using the cell phone to callsomeone who is waiting to receive orders to carry out a crime), while offer-ing the same good in rural Cuba does eliminate an obstacle that wouldmake the commission of the crime improbable.

Even though the "theory of the scarcity of goods" offers a test that helpsdetermine when an accomplice's assistance should be considered essentialbecause it increases the probability of successfully completing the crime,this theory is not helpful in some cases. The following example illustratesthe problem:

Knowing Carina's intentions to poison Pamela by putting cyanide in hercoffee, Christian, one of Pamela's enemies, gives Carina a gun "in caseyou prefer to kill her by shooting her." Carina thanks him by saying thatshe "originally thought about shooting her, but I did not have access tofire arms.... Cyanide, on the other hand, was easy to find over the In-ternet." 51 Carina killed Pamela with the gun.

This is a hard case since the facts demonstrate that it is likely that Carinawould have killed Pamela with or without Christian's help. Therefore, itcan be argued that Christian's help did not constitute essential complicity,since it is hard to classify his act (providing a gun) as one without whichthe criminal offense could not have been committed. Nonetheless, focusingon the scarcity of the good provided suggests that the act should be consid-ered necessary for the commission of the crime since the gun constituted ascarce good for Carina.

Nevertheless, I believe that Christian's contribution should be classifiedas trivial cooperation. In light of the particular facts of this case, Pamela'sdeath at the hands of Carina was likely ex ante, regardless of Christian'shelp. Though it can be argued that a gun is substantially more effective toproduce a victim's death than other types of artifacts (knives, bats, cookingpans, etc.), it is difficult to argue that a gun is more effective than cyanideto cause death.52 Consequently, it would not seem to be the case that Chris-

51. See Dr. Sanjay Gupta, Cyanide Poison Hard to Detect, CNN (Jan. 10, 2003),http://www.cnn.com/2003/US/South/01/10/otsc.gupta.cyanide/ (surprisingly, cyanide isvery easy to obtain through the Internet).

52. Cyanide is one of the most effective poisons that can produce death. With a proper

2014] 11


tian's help significantly increased the probability that Carina would killPamela.

This example demonstrates that, while focusing on the scarcity of thegood or service provided is a good starting point for determining whethercomplicity should be considered essential or trivial, there are instances inwhich it is preferable to appeal to other facts to determine whether the ac-complice's act was essential or not. The above mentioned example showsthat there are cases in which offering a scarce good does not significantlyincrease the probability that the crime will be consummated. When this oc-curs, it is wise to conclude that the accomplice's help was not essential,even if the good or service that was offered was scarce.

IV. BEYOND THE SCARCITY OF GOODS AND SERVICES: A CONCRETEPROPOSAL TO DETERMINE WHETHER COMPLICITY IS SUBSTANTIAL OR

TRIVIAL

For the reasons explained in the previous section, I believe that the scar-city of the good or the service provided by the accomplice is an important,albeit not decisive, factor in determining whether the accomplice's assis-tance should be classified as essential or trivial. 53 There is no magic formu-la that can be invoked to distinguish between essential and trivial acts ofcomplicity in a non-arbitrary manner. Nonetheless, there are five types ofcases that are worth discussing in more detail:

(1) Cases in which the accomplice's contribution consists of fa-cilitating a means to commit the crime that is different from theone that the perpetrator planned to use before he received the ac-complice's help;

(2) Cases in which the accomplice's contribution consists of anact that is designed to decrease the likelihood that the crime willbe thwarted or detected by the police or third parties;

(3) Cases in which the perpetrator's help consists of providingthe perpetrator with moral support;

dose, death can be caused in three minutes. The effectiveness of a firearm is well known.Nevertheless, it is important to point out that the use of a firearm to cause another's death ismore conspicuous than the use of poison, which is odorless and colorless. Therefore, it ismore probable that a firearm will generate a defensive reaction from the victim than the useof cyanide dissolved in coffee. Considering that the defensive reaction from the victim re-duces the probability that the homicide would be consummated, it could be argued that theuse of cyanide is more effective than the use of a gun to kill another. In any case, it seemsreasonable to sustain that a firearm and a sufficient dose of cyanide are comparable in lethaleffectiveness. Id.

53. See id.

12 [Vol. 40: 1


(4) Cases in which the accomplice provides a good or a serviceunder circumstances that do not fit the situations in subsections(1), (2), or (3); and

(5) Cases in which the accomplice's help consists of failing to dosomething that, if done, would have made it more difficult for theperpetrator to consummate the offense.54

In all of these cases, the accomplice's contribution amounts to an act.The fifth case will be discussed in the next subsection because it presentsunique challenges, given that the accomplice's contribution in such casesconsists of an omission.5 5

In the first case the accomplice's act consists of facilitating a means tocommit the crime.56 In such instances, the accomplice's act should be con-sidered essential only when the means that he provided significantly in-crease the probability that the crime will be successfully completed whencompared to the means that the perpetrator planned to use before receivingthe accomplice's help.57 In other words, the effectiveness of the means thatthe perpetrator originally planned to employ to commit the crime should becompared to the means provided by the accomplice for the commission ofthe crime. If the means provided by the accomplice were substantially moreeffective than the means that the perpetrator planned to use before receiv-ing the accomplice's help, the reasonable conclusion would be to classifythe assistance as essential complicity, regardless of the scarcity of the goodprovided. For example, if the perpetrator's plan was to poison the victim bydissolving great quantities of Benadryl in his coffee, providing cyanideshould be considered an essential contribution if the perpetrator poisons thevictim with it. Since cyanide is much more lethal than Benadryl, giving theperpetrator cyanide significantly increases the probability of consummatingthe murder. 5Therefore, the accomplice's help should be classified as es-sential even though, as in this case, cyanide is easy to obtain and cannot beconsidered a scarce good.

54. See generally supra Part III.55. PHiLosoPIcAL FOUNDATIONS OF CRIMINAL LAw 493 (R.A. Duff & Stuart P.

Green eds., 2011).56. Id. at 427-28.57. See R.A. Duff, Is Accomplice Liability Superfluous?, 156 U. PA. L. REv.

PENNUMBRA 444, 444-45 (2008). Therefore, if the means that the author intended to use be-fore communicating with the cooperator is a gun and the good provided by the cooperator isalso a gun, the case cannot be considered an example of the first type of cases since themeans provided is not different from the one the author thought of using beforehand. Thecase should instead be analyzed under the fourth group.

58. See Michael S. Moore, Causing, Aiding, and the Superfluity of Accomplice Liabil-ity, 156 U. PA. L. REv. 395, 432-33 (2007).

2014] 13


Regarding the second group of cases, I believe that when the contribu-tion consists of an act that is designed to decrease the likelihood that thecrime will be thwarted or detected, the contribution should be consideredessential if it significantly decreased the probability that the crime would bedetected or frustrated by the victim or a third party. This can be determinedby comparing how the perpetrator originally planned to commit the offensewith how the perpetrator will be able to commit the offense once he re-ceives the accomplice's help.59 I believe that the scarcity of the good orservice provided is not dispositive in these cases. Suppose, for example,that Lara intends to kill Lorenzo in an office building late at night to mini-mize the probability of being detected by third parties. Also imagine thatMichael contributes to the commission of the crime by providing Lara witha firearm silencer since, even though it is improbable that someone wouldbe lurking around the building in those hours, one can never be sure. DoesMichael's help constitute essential or trivial complicity? According to thetest proposed in this section, I believe Michael's help should be consideredtrivial complicity. It is difficult to argue that providing the gun silencer sig-nificantly decreased the probabilities that the crime would be detected inthis case, given that the perpetrator's original plan was to commit the crimein an abandoned area at a time when it would be improbable that peoplewould be around to hear the gunshots. Whether the silencer is a scarce orabundant good should thus be considered irrelevant in this case.

The third group of cases refers to situations in which the help providedby the accomplice consists of morally supporting the perpetrator's commis-sion of the offense. 60 In these cases, the actor communicates in some wayhis approval of the criminal act to the perpetrator. The famous case of Wil-cox v. Jeffery illustrates this problem. 1 In Wilcox, the defendant bought aticket to a jazz concert knowing that the show was illegal because the mu-sician had not obtained the required licenses from the British government. 62

It was demonstrated that the defendant, along with others, applauded themusician on various occasions during the concert.63 The defendant wascharged with complicity in the illegal concert given by the musician.64 Inthis case, the help provided by the accused to the perpetrator consisted sole-ly of morally supporting his course of action by purchasing a ticket for theconcert, attending the concert, and applauding during the show.65

59. See Jacob Kreutzer, Note, Causation and Repentance: Reexamining Complicity inLight ofAttempts Doctrine, 3 N.Y.U. J.L. & L. 155, 185-92 (2008).

60. See Wilcox v. Jeffery, (1951) 1 All E.R. 464 (Eng.).

61. Id.62. Id. at 465.63. Id. at 466.64. Id. at 465.65. Id. at 466.

[ Vol. 40: 114


The first thing that should be noted is that focusing on the scarcity of thegood or service provided does not help to determine whether the accom-plice's assistance is essential or trivial, for the accomplice's conduct doesnot consist of providing the perpetrator with a good or service. Rather, theaccomlice's contribution consists of providing moral support to the perpe-trator. If the perpetrator was set on committing the crime before he re-ceives the accomplice's moral support, it is difficult to argue that the crimewould not have been committed but for the accomplice's help. Therefore,such cases should be punished as insubstantial complicity. This is the bestway of thinking about the accomplice's contribution in Wilcox. The perpe-trator was determined to hold the concert regardless of whether the defend-ant attended the show or not.67 As a result, the accomplice's moral supportshould be considered non-essential to the commission of the offense. Onthe other hand, if the perpetrator was not set on committing the crime be-fore receiving the accomplice's moral support, but later decided to committhe crime precisely because of the moral support he receives, then provid-ing such moral support should be punished as severely as perpetration. Insum, a person who helps by providing moral support should be punished asmuch as the perpetrator if the moral support causes the perpetrator to de-cide to commit the crime. However, the actor should be considered a trivialaccomplice if his help did not cause the perpetrator to decide to commit thecrime.

The last group of acts that generate accomplice liability comprise a re-sidual category that extends to any case of contribution to a crime that isaccomplished by providing a good or a service that cannot be resolved byappealing to any of the previously elaborated rules.68 It is in these casesthat the decision regarding whether to classify such contributions as sub-stantial or insubstantial complicity should depend on the scarcity or abun-dance of the good or service provided. If the good or service provided bythe accomplice in these cases is abundant, it is sensible to conclude that thecomplicity was trivial. If, however, the good or service provided by the ac-complice is scarce, the assistance should be considered essential complici-

ty.

A. Essential Complicity by Omission?

Sometimes an accomplice contributes to the commission of a criminalact by failing to do something that may have prevented the consummationof the offense. In these cases, the accomplice's assistance consists of notdoing something that, if done, would have presented the perpetrator with an

66. Dressler, supra note 1, at 431-38.67. Id.68. Id. at 442-47.

2014] 15

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:1

obstacle for the consummation of the offense. The following examples il-lustrate cases of complicity by omission:

(1) A mother passively observes as her daughter is assaulted by a friend.The mother does not try to prevent the aggression upon her daughtereven though she could have done something to avoid it.

(2) A policeman observes an individual about to shoot another and doesnothing to prevent it, even though he could have.

(3) A private security guard is in charge of making sure a dangerous pa-tient from a mental ward does not escape and hurt others. While theguard is escorting the patient to a different hospital building, the patientescapes because the guard did not take proper measures to control him.The patient injures a visitor while the guard looks on without trying toprevent the aggression.

In these three cases, the person that fails to Frevent the crime had a legalobligation to keep the victim free from harm. The legal duty in the firstexample stems from the close family relationship that exists between thedefendant (mother) and the victim (daughter). 70 The legal obligation in thesecond case arises from the duty that police officers have to protect citizensfrom the criminal acts of others.71 The legal obligation in the third casestems from the employment contract that requires the private guard to as-sume the duty to prevent patients from harming others. 2 If we assume thatin each case the defendant had knowledge of his or her obligation and knewthat his or her omission would in some way facilitate the consummation ofa crime, there are no legal obstacles to treating all three defendants as ac-complices to the perpetrator's crime.7 3

A more difficult problem arises when determining whether the actor whois considered an accomplice by omission should be considered a non-essential or essential accomplice. Unfortunately, the four categories dis-cussed in the previous section do not solve the problem since these catego-ries assume that the accomplice's help consists in an affirmative action.Focusing on the scarcity of the good or service provided does not resolvethe problem either since the omission in this type of case does not amountto providing a good or a service. Therefore, a different approach is neededin order to adequately distinguish between essential and insubstantial com-plicity when the help provided by the accomplice amounts to an omission.It is important in these types of cases to distinguish between omissions that

69. See GIMBERNAT, supra note 45, at 127-33.70. See id.71. See id.72. See id.73. See id.


constitute a breach of an obligation to protect the interests of a particularindividual and omissions that suppose the breach of an obligation to controlthe conduct of a particular individual. The distinction between the obliga-tion to protect and the obligation to control is important in the context ofAmerican tort law.74 When the obligation of the actor consists of prevent-ing harm to a particular person, there is a duty to protect. 75 The paradigmat-ic case is that of a mother and her son, since it is within the mother's obli-gations to take reasonable measures to prevent harm to her son.76 Anotherexample of a duty to protect is a bodyguard's obligation to prevent harm tothe person who hired him. In contrast, a duty to control is the obligation toprevent a person with dangerous propensities from harming others. 77 Ac-cording to the Restatement (Second) of Torts, "one who takes charge of athird person whom he knows or should know to be likely to cause bodilyharm to others if not controlled is under a duty to exercise reasonable careto control the third person to prevent him from doing such harm." 78 Thetypical case is that of a person in charge of a patient in a mental ward or aperson in charge of prisoners in a jail. The obligation in these cases is notto protect a particular person from harm, but rather to prevent a particularperson from hurting another. That is why it is said that the obligation is notto protect, but to control.

The distinction is important because the level of control over the crimi-nal conduct that the erson who fails to act has in these two types of casesvaries considerably. More specifically, the actor's level of control whenhe has a duty to protect the victim is minimal.80 -These are situations inwhich the actor is not in control of the perpetrator and it is thus difficult toargue that the actor contributes to originating the situation that puts the vic-tim at risk of suffering harm. Therefore, the help provided by the actor inthese cases does not assist in creating the danger to the victim, but rather infailing to become an obstacle to the criminal conduct of another.

In contrast, the actor's level of duty in cases in which the perpetratorshould have been controlled by the actor is significantly more than whenthe actor's duty is merely to protect the victim from harm.81 As was men-tioned before, an actor has an obligation to control a perpetrator when he

74. See John Fabian Witt, The Long History of State Constitutions and American TortLaw, 36 RUTGERS L.J. 1159, 1163-65 (2005).

75. See, e.g., RESTATEMENT (SECOND) OF TORTS §§ 323, 324 (1965).76. See id.77. Id. § 315.78. Id. § 319.79. McNamara v. Honeyman, 546 N.E.2d 139, 146-47 (Mass. 1989).80. See id.81. Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343, 353 (Cal. 1976) (conclud-

ing therapist's failure to warn victim was not subject to immunity).

2014]1 17


has accepted the responsibility to prevent the perpetrator from harmingothers. 82 Therefore, the danger to which the victim is exposed in this typeof case originates not only in the perpetrator's unlawful behavior, but alsoin the breach of the accomplice's obligation to control the perpetrator'sconduct. Consequently, the actor's complicity in these cases consists notonly of failing to become an obstacle to the commission of the offense bythe perpetrator, but also of contributing to originating the danger by failingto properly supervise the dangerous individual that ended up harming thevictim. Ultimately, the actor who has an obligation to control has more in-fluence over the harmful course of conduct than the one who has an obliga-tion to protect since the actor with an obligation to control is responsiblefor both the failure to prevent harm to the victim and to adequately super-vise the person who committed the crime. 83

Given that the actor who has a duty to protect the victim has a minimaldegree of control over the peretrator's conduct, he should be classified asan insubstantial accomplice. In these cases, it is likely that the crimewould have been committed regardless of the accomplice's failure to actsince the danger to the victim is solely created by the perpetrator's conduct,and it is not clear whether the actor could have prevented the consumma-tion of the crime after the perpetrator becomes intent on committing the of-fense. Therefore, it seems that both the mother in the first case previouslydiscussed and the policeman in the second are non-essential accomplices ofthe crimes committed by the perpetrators, given that they had an obligationto protect the victims, but did not have an obligation to control the conductof the perpetrators.

In contrast, given that the actor who controls the conduct of the perpetra-tor has more control over perpetrator's course of conduct, he can be con-sidered an essential accomplice. 85 In these cases, the actor contributes tothe creation of the danger, and it is therefore sensible to conclude that theperpetrator would not have committed the crime if the accomplice had notbreached his obligation to control and supervise the conduct of the perpe-trator. 86 In other words, it is likely that if the accomplice did not let theperpetrator escape, the perpetrator would not have harmed the victim. Con-sequently, it can be argued that the accomplice's contribution in this type ofcase is essential and necessary for the consummation of the crime.

82. RESTATEMENT (SECOND) OF TORTS § 319 (1965).

83. See Tarasoff, 551 P.2d at 345-46.84. United States v. Cuavero, 530 F.2d 666 (5th Cir. 1976); see also Ben "Ziggy"

Williamson, The Gunslinger to the Ivory Tower Came: Should Universities Have a Duty toPrevent Rampage Killings?, 60 FLA. L. REV. 895, 910 (2008).

85. See Tarasoff, 551 P.2d at 358.86. Id. at 342-43 ("A hospital must exercise reasonable care to control the behavior of

a patient which may endanger other persons.").

18 [Vol. 40:1


However, a person who becomes an accomplice to a crime by an omis-sion that constitutes the breach of an obligation to control should only beconsidered an essential accomplice if three additional criteria are satisfied:(1) the actor must be aware that the perpetrator escaped from his control;(2) the actor must be aware that the perpetrator had the intent to harm a par-ticular victim; and (3) the actor had the capacity to prevent the consumma-tion of the crime.8 7 If these requirements are satisfied, there are good rea-sons to conclude that the perpetrator's conduct may be properly attributedto the accomplice and, therefore, the accomplice deserves to be punished asseverely as the perpetrator. It seems that these requirements are met in thethird example previously discussed. As a result, the private guard should beconsidered an essential accomplice to the crime committed by the patient.8 8

V. CONCLUSION

Professor Dressler argued that a rational system of criminal law ought todistinguish between substantial and insubstantial participants to crime. Heis right. Nevertheless, contrary to what Dressler suggested, the law alsoshould attempt to put forth concrete criteria for distinguishing between es-sential and non-essential accomplices. Vague formulations will not do. Asa result, this essay distinguishes between five different kinds of participa-tion to crime and proposes specific standards to determine when such par-ticipations should be considered essential complicity and when such contri-butions should be deemed insubstantial participation. Such criteria areuseful for at least two reasons. First, it is more likely that law reformerswill take seriously the proposal to distinguish between trivial and essentialaccomplices if concrete standards are proposed to help the trier of factmake the necessary distinctions between participants. Second, specificstandards that help distinguish between different degrees of participationwill likely help judges who are tasked with assessing whether a downwarddeparture for minor participation is warranted under the Federal SentencingGuidelines (or similar state sentencing schemes). 90

87. See generally Jablonski v. United States, 712 F.2d 391, 397 (9th Cir. 1983);RESTATEMENT (SECOND) OF TORTS § 281 (1965).

88. See RESTATEMENT (SECOND) OF TORTS § 319 (1965). Of course, the patient couldnot be held responsible due to mental incapacity. Nevertheless, in light of the fact that men-tal incapacity constitutes an exculpatory excuse that does not eliminate the illegal nature ofthe author's conduct, the committer can be considered a cooperator to the patient's illegalconduct despite the fact that he could not be punished due to his mental incapacity. See id.

89. Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Of-fense, 5 OHIO ST. J. CRIM. L. 427, 448 (2008).

90. See generally U.S. SENTENCING GUIDELINES MANUAL (2013).

2014] 19

Download - Reassessing Professor Dressler's Plea for Complicity ...offerofproof.net/wp-content/uploads/Volumes/Volume 40/40.1/40.1.1... · Reassessing Professor Dressler's Plea for Complicity

Top Related