Criminalizing complicity: A comparative analysis

Journal of International Criminal Justice

Volumn 5, Issue 4, 2007, Pages 977-1001

  Dubber, Markus D ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 35248873035     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm038     Document Type: Conference Paper

References (78)

1. See e.g. D. Kienapfel, 'Zun gegenwärtigen Stand fer Lehre von der Einheitstäterschaft in der höchstrichterlichen Praxis', Österreichishe Juristen-Zeitung (1979) 90 et seq.
2. On American criminal law as domestic comparative criminal law, see M.D. Dubber, 'Comparative Criminal Law, in M. Reimann and R. Zimmermann (eds), Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) 1287 et seq.;
3. M.D. Dubber, 'Reforming American Penal Law', 90 Journal of Criminal Law & Criminology (1999) 49 et seq.
4. This is an oversimplification. While the theory of Tatherrschaft enjoys widespread support among the German criminal professoriate, competing theories of complicity continue to find adherents. Moreover, German courts tend to prefer a different theory, a variant of the subjective theory of complicity to be discussed infra.
5. StGB §25(1).
6. StGB §25(1).
7. StGB §25(2).
8. StGB §26.
9. StGB §27. Commentators (and courts) recognize a sixth category, that of parallel perpetrator (Nebentäter), which we can safely ignore for our purposes since it's covered comfortably by category (1).
10. StGB ch. 21.
11. StGB §257.
12. StGB §§ 259-260a.
13. StGB §§ 258-258a.
14. StGB §261.
15. On the principle of compulsory prosecution (and its many exceptions), see M. Dubber and M. Kelman, American Criminal Law (New York: Foundation Press, 2005), 101-105.
16. See infra 6G.
17. Although the Model Penal Code greatly influenced the criminal law in most states, some states continue to rely on common law principles. For our purposes, however, the common law is of primarily historical and comparative significance insofar as the Model Penal Code grew out of a careful critical analysis of common law norms and the common law of complicity resembles German criminal law in certain respects.
18. The recognition of an accessory 'at the fact', and his transformation into a principal, hints at the characteristic that ended up policing the line between principal and accessory based on presence.
19. 18 U.S.C. §4 ('whoever, having knowledge of the actual commission of a felony cognizable ... conceals and does not as soon as possible make known the same to some judge or other [official]' is guilty of misprision of felony).
20. The borderline categories of co-perpetrator and principal in the second degree do not match up because the two systems draw different lines in the sand. Whether someone qualifies as a co-perpetrator rather than as an accomplice in German criminal law depends on whether he has Tatherrschaft. Whether someone qualifies as principal in the second degree rather than an as accomplice under the common law scheme depends on whether he is present at the commission of the crime. One may be present without having Tatherrschaft, and vice versa (though this is less likely, given the notion of constructive presence). That is not to say that it would be impossible to reinterpret presence as a proxy for Tatherrschaft.
21. 13 Nev. 386 (1878).
22. State v. Tally, 15 So. 722 (1894).
23. See generally M.D. Dubber, "The Promise of German Criminal Law: A Science of Crime and Punishment', 6 German Law Journal (2005), 1049 et seq. available online at http://www.germanlawjournal.com/ article.php?id=613 (visited 27 January 2007).
24. C. Roxin, Täterschaft und Tatherrschaft (8th edn., Berlin: Duncker and Humblot, 2005), 66.
25. H.-H. Jescheck and T. Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (5th edn., Berlin: Duncker and Humblot, 1996), 652.
26. The concept of Tatherrschaft here appears to perform a function analogous to that performed by the concepts of Rechtsgut and positive Generalprävention in the German theories of crime and of punishment, respectively. See M.D. Dubber, 'Theories of Crime and Punishment in German Criminal Law', 53 American Journal of Comparative Law (2006) 679 et seq.
27. StGB §§ 25-27.
28. See C. Roxin, Strafrecht: Allgemeiner Teil Band II (Munich: C.H. Beck, 2003), 191-192.
29. The discount is considerable. For instance, life imprisonment for an instigator, or a perpetrator, becomes a minimum three-year sentence for a facilitator. StGB §49(1)(1).
30. On the Model Penal Code, see generally M.D. Dubber, Criminal Law: Model Penal Code (New York: Foundation Press, 2002).
31. MPC §2.06(1).
32. MPC §2.06(2)(a).
33. MPC §2.06(2)(c) & (3)(a)(i).
34. MPC §2.06(2)(c) & (3)(a)(ii).
35. MPC §2.06((1).
36. The supposed inability to differentiate between principals and accomplices in pure result offences, ceteris paribus, was of no particular concern since the Model Penal Code, unlike the German Criminal Code, punished both equally, or either equally according to their respective levels of culpability regarding all elements of the offence. See infra.
37. R. Perkins and R. Boyce, Criminal Law (3rd edn., Mineola, New York: Foundation Press, 1982), 738.
38. The MPC recognizes three types of offence - felony (punishable by fine or imprisonment of more than 1 year), misdemeanour (fine or imprisonment up to 1 year), and violation (a non-criminal offence subject to fine or forfeiture, but no imprisonment). The separate category of treason had been abandoned long before the Model Penal Code. In modern American criminal law, treason is classified as a felony. On the intriguing history of treason and felony in early Anglo-American law, see M.D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), ch. 1.
39. MPC §2.06(7).
40. In the case of an 'involuntary' - as opposed to an 'innocent' or an 'irresponsible' act, the objective offence element of conduct would be absent; for that reason, complicity analysis would be inapposite since no conduct could be imputed from one person to another. In this case, the apparent principal would have engaged in no act. The apparent solicitor or facilitator would be the only person engaging in conduct through another's involuntary act (not rising to the level of conduct, which by definition requires a voluntary act).
41. See generally W. Naucke, 'An Insider's Perspective on the Significance of the German Criminal Law Theory's General System for Analyzing Criminal Acts', BYU Law Review (1984), 305.
42. In fact, even under the German scheme that provides for a mandatory punishment discount for facilitators, the facilitator may end up being punished more harshly than the principal if he meets certain aggravating factors. See StGB §§ 28(2), 29.
43. See e.g. C. Roxin, Strafrecht: Allgemeiner Teil Band II (Munich: C.H. Beck, 2003), 139-141.
44. Model Penal Code Commentaries (Philadelphia: American Law Institute, 1985), §2.06, 318-319.
45. Here is what it would have said: 'A person is an accomplice of another in commission of a crime if...acting with knowledge that such other person was committing or had the purpose of committing the crime, substantially facilitated its commission.' Model Penal Code Tentative Draft No. 1 (Philadelphia: American Law Institute, 1953), §2.04(3).
46. An alternate version would have read: 'acting with knowledge that such other person was committing or had the purpose of committing the crime, he knowingly provided means or opportunity for the commission of the crime, substantially facilitating its commission'. Ibid.
47. That is not entirely true. Although purpose is required for the imputation of a principal's conduct towards his accomplice, it is not required for the imputation of an instrument's conduct towards his user under §2.06(2)(a). Model Penal Code Commentaries, supra note 43, §2.06, 302-303.
48. Innocent or irresponsible persons, in this sense, are treated like inanimate objects, like a hammer or a remote control robot - that somehow are capable of voluntary acts, and therefore conduct. Their user's criminal liability will depend entirely on the mens rea of the offence, if any. To say that he was reckless in causing his human instrument to engage in criminal conduct is just another way of saying that he was reckless in committing the criminal act, and therefore is liable for any offence with a mens rea of recklessness. In the Commentaries' stark example, '[o]ne who recklessly leaves his car keys with an irresponsible agent known to have a penchant for mad driving should... be accountable for a homicide due to such driving if the irresponsible agent uses the car in that way.' Ibid., at 302.
49. See generally Dubber and Kelman, supra note 14, at 717-718.
50. Given the severity of international crimes such as genocide, it may be significant that it has been held that inferring purpose from knowledge may be permissible if the principal's crime is serious. Contrast United States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (murder) with People v. Lauria, 251 Cal. App. 2d 471, 59 Cal. Rptr. 628 (1967) (prostitution).
51. N.Y. Penal Law §115.00
52. see e.g. People v. Gordon, 32 N.Y.2d 62 (1973).
53. Attempted facilitation is punished as an attempt, however, if the offence is not committed or attempted. Model Penal Code §5.01(3) (attempted solicitation in cases where the offence solicited is not committed or attempted, is punished as a separate inchoate offence: solicitation. MPC §5.02). In that case imputation of the principal's conduct would not be possible since there is no conduct that could be imputed to another person. By contrast, successful facilitation or solicitation of an attempt is punished as an attempt; the conduct of the principal that amounts to an attempt would be imputed to the facilitator or solicitor.
54. With the exception of attempts to commit first degree felonies, which are punished at the level of a second degree felony. Model Penal Code §5.05(1).
55. StGB §30.
56. MPC §§ 2.06(3)(a)(i) and 5.02(1).
57. Again with the exception of solicitations to commit a first degree felony.
58. 1§.07(1)(b).
59. United States v. Pinkerton, 328 US 640 (1946). Many US jurisdictions have followed the Model Penal Code in rejecting the Pinkerton rule.
60. See e.g. People v. McGee, 49 N.Y.2d 48 (1979) ('[I]t is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for substantive offenses in which he did not participate .... Accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense!) Others, including federal criminal law, have not.
61. See G.P. Fletcher, 'Is Conspiracy Unique to the Common Law?', 43 American Journal of Comparative Law (1995) 171 et seq. (reviewing E. Grande, Accordo criminoso e conspiracy: Tipicità e stretta legalità nell'analisi comparata (Padova: Cedam, 1993)).
62. Cf. also the provision StGB §129 (formation of criminal organizations).
63. United States v. Campbell, 977 F.2d 854 (4th Cir. 1992).
64. United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y. 1998).
65. The section also provides for an affirmative defence (upon which the defendant would bear the burden of production, see MPC §242.5), where 'the pecuniary benefit did not exceed an amount which the actor believed to be due as restitution or indemnification for harm caused by the offense'.
66. In a nutshell, the punishment ranges under the Model Penal Code are as follows. 1st degree felony: Minimum between 1 and 10 years, maximum life, fine up to $10,000; 2nd degree felony: Minimum between 1 and 3 years, maximum 10 years, fine up to $10,000; 3rd degree felony: Minimum between 1 and 2 years, maximum 5 years, fine up to $5,000; misdemeanour: maximum 1 year, fine up to $1,000. See MPC §1.04 and chaps. 6 and 7.
67. The sentencing provisions of the Model Penal Code have not been particularly influential. They are currently undergoing revision. See'Symposium, Model Penal Code: Sentencing', 7 Buffalo Criminal Law Review (2003) 1 et seq.
68. StGB §24(2).
69. StGB §31(1). The renunciation provision in the German Criminal Code also addresses attempt cases under StGB §30(2) (conspiracy): A defendant who has declared his willingness to commit an offence must renounce his plan to commit it, while a defendant who has agreed to commit an offence or accepted another's offer to commit it must prevent its commission. Ibid., §31(2) & (3).
70. MPC §§ 2.06(6)(a) and (b).
71. See H.-H. Jescheck and T. Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (5th edn., Berlin: Duncker and Humblot, 2005), 697-99.
72. People v. Manini, 79 N.Y.2d 561 (1992).
73. German criminal law would reach the same result, but for different reasons having to do with the legal good (Rechtsgut) safeguarded by each provision. On the concept of Rechtsgut, see M. Dubber, 'Theories of Crime and Punishment in German Criminal Law, 53 American Journal of Comparative Law (2006) 679 et seq.
74. Art. 25(3).
75. Art. 25(3)(b) and (c).
76. Art. 30(2).
77. Art. 25(3)(f).
78. U.S.S.G. §§ 3B.1.1 ('aggravating role') and 3B1.2 ('mitigating role').