Causing, aiding, and the superfluity of accomplice liability

University of Pennsylvania Law Review

Volumn 156, Issue 2, 2007, Pages 395-452

  Moore, Michael S ^a,b,c,d  

^a Walgreen University

^b Department of Law ^*

^c Center for Advanced Studies

^d UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

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EID: 39349112382     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (185)

1. See, e.g., WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL. LAW 579-80 (2d ed. 1986).
2. MODEL PENAL CODE § 2.02 (1985).
3. This paper is the tenth in a series of papers on causation, both its metaphysics and its relevance to responsibility. The predecessor papers are: Heidi M. Hurd & Michael S. Moore, Negligence in the Air, 3 THEORETICAL INQUIRIES L. 333 (2002);
4. Michael S. Moore, Causal Relata, in 13 ANNUAL REVIEW OF LAW AND ETHICS: PHILOSOPHIA PRACTICA UNIVERSALIS 589 (B. Sharon Byrd & Jan C. Joerden eds., 2005);
5. Michael S. Moore, Causation, in 1 ENCYCLOPEDIA OF CRIME & JUSTICE 150 (Joshua Dressler ed., 2d ed. 2002);
6. Michael S. Moore, Causation and Responsibility, SOC. PHIL. & POL'Y, Summer 1999, at 1;
7. Michael S. Moore, The Destruction of the World Trade Center and the Law on Event-Identity, in AGENCY AND ACTION 259 (John Hyman & Helen Steward eds., 2004);
8. Michael Moore, For What Must We Pay? Causation and Counterfactual Baselines, 40 SAN DIEGO L. REV. 1181 (2003)
9. [hereinafter Moore, Causation and Counterfactual Baselines];
10. Michael Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237 (1994);
11. Michael S. Moore, The Metaphysics of Causal Intervention, 88 CAL, L. REV. 827 (2000);
12. and Michael S. Moore, Patrolling the Borders of Consequentialist Justifications: The Scope of Agent-Relative Restrictions, 27 LAW & PHIL. (forthcoming 2008)
13. [hereinafter Moore, Patrolling the Borders]. These papers together form the bulk of my forthcoming book, Causation and Responsibility, to be published by Oxford University Press in 2008.
14. E.g., Rollin M. Perkins, Parties to Crime, 89 U. PA. L. REV. 581, 584 (1941).
15. I argue for this at some length in MICHAEL S. MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR CRIMINAL LAW 189-238 (1993).
16. See, e.g., Glanville Williams, The Problem of Reckless Attempts, 1983 CRIM. L. REV. 365, 366 (discussing the absence of causal requirements in "conduct crimes" and providing the example of rape).
17. For other examples, see the discussion and citations in MOORE, supra note 5, at 209-10, 214-25.
18. See generally MOORE, supra note 5, at 60-77.
19. See, e.g, Pinkerton v. United States, 328 U.S. 640 (1946).
20. Joshua Dressier considers but rejects the vicarious basis for accomplice liability. Joshua Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem, 37 HASTINGS L.J. 91, 109-11 (1985).
21. See, e.g., Richard Buxton, Complicity and the Law Commission, 1973 CRIM. L. REV. 223, 223-30;
22. Richard Buxton, Complicity in the Criminal Code, 85 L.Q. REV. 252, 265-73 (1969);
23. J.R. Spencer, Trying To Help Another Person Commit a Crime, in CRIMINAL LAW: ESSAYS IN HONOUR OFJ.C. SMITH 148, 148 (Peter Smith ed., 1987);
24. Daniel Yeager, Helping, Doing, and the Grammar of Complicity, 15 CRIM. JUST. ETHICS 25, 30-33 (1996). Recently, Christopher Kutz seems to have joined the view that accomplice liability is a form of inchoate liability.
25. See Christopher Kutz, Causeless Complicity, 1 CRIM. L. & PHIL. 289, 301-03 (2007).
26. See, e.g, K.J.M. SMITH, A MODERN TREATISE ON THE LAW OF CRIMINAL COMPLICITY 124-27 (1991);
27. Paul H. Robinson, Imputed Criminal Liability, 93 YALE L.J. 609, 613-14 (1984);
28. Francis Bowes Sayre, Criminal Responsibility for the Acts of Another, 43 HARV. L. REV. 689, 702 (1930).
29. The Pinkerton doctrine, 328 U.S. at 646-47, is a federal doctrine, but it is followed in a minority of American states.
30. See, e.g., People v. Luparello, 231 Cal. Rptr. 832, 846-51 (Cal. Ct. App. 1986).
31. This is the suggestion of Smith, Robinson, and Sayre, supra note 11.
32. This view is held by Dressier, supra note 9, at 102-03, and CHRISTOPHER KUTZ, COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE 220-27 (2000).
33. So. 722 (Ala. 1894).
34. Id. at 738.
35. KUTZ, supra note 15, at 217. Kutz has recently come to a somewhat more nuanced view of causation.
36. See Kutz, supra note 10, at 290 ("Causation may be present, I argue, and causal relations feature in the justification of accomplice liability overall, but causation is not necessary to complicity.").
37. KUTZ, supra note 15, at 215;
38. see also Dressler, supra note 9, at 99;
39. Yeager, supra note 10, at 29.
40. Moore, Causation and Counterfactual Baselines, supra note 3.
41. The substitivity of identicals is often called "Leibniz's Law." For an introduction, see MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 372 (1997).
42. For the qualifications, see Moore, Causal Relata, supra note 3, at 629-34.
43. I have made this argument in Moore, Causation and Counterfactual Baselines, supra note 3, at 1214-15.
44. At least this is true so long as one does not stipulate (as did David Lewis and his followers) that counterfactuals that "backtrack" through time are "deviant." For a hypothetical demonstrating this, see id. at 1227-37.
45. THE SOUND OF MUSIC (20th Century Fox 1965).
46. Counterfactualists argue this point mostly by a stipulated narrowing of the class of counterfactuals eligible to serve as sufficient conditions for causation. Thus, one response to (a) is the denial by counterfactualists that counterfactuals relating omissions are like ordinary counterfactuals relating events because the former but not the latter are about types, not particulars; to (b), the response is to stipulate that counter-factuals must be between "distinct events"; and to (c) and (d), the main response is to treat "backtracking" counterfactuals as deviant and not included in the class of counterfactuals relevant to causation. For a discussion of these responses, see Moore, Causation and Counterfactual Baselines, supra note 3, at 1238-57.
47. See id. (discussing this attention in detail).
48. See id. at 1213-37 (tracing these attempts).
49. The Model Penal Code's failure to cover cases of concurrent causation is acknowledged at MODEL PENAL CODE § 2.03 cmt. 2 (1985).
50. See generally Wex S. Malone, Ruminations on Cause-in-Fact, 9 STAN. L. REV. 60 (1956). For the critical legal studies version of this view,
51. see Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 CHI.-KENT L. REV. 579 (1987).
52. My early commentary on Kelman appeared in Michael S. Moore, Thomson's Preliminaries About Causation and Rights, 63 CHI.-KENT L. REV. 497, 501-06 (1987).
53. Both Restatements eschew but-for causation for the "substantial factor" test. RESTATEMENT (SECOND) OF TORTS § 431 (1965);
54. RESTATEMENT OF TORTS § 431 (1934).
55. I explore the case law establishing these conditions in Moore, The Metaphysics of Causal Intervention, supra note 3, at 832-52.
56. See id. at 839-46.
57. Sanford H. Radish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 CAL. L. REV. 323 (1985).
58. BLONDIE, One Way or Another, on PARALLEL LINES (Chrysalis Records 1978).
59. I argue for these propositions in Moore, The Independent Moral Significance of Wrongdoing, supra note 3, at 258-80.
60. The fit of libertarian metaphysics to the legal doctrines of intervening causation is in fact a rough one, as I examine in Moore, The Metaphysics of Causal Intervention, supra note 3, at 869-71. This is one argument more than I need here, so I shall ignore it.
61. Kadish, supra note 34, at 360.
62. Id. at 334-36.
63. H.L.A. HART & TONY HONORÉ, CAUSATION IN THE LAW 28-32 (2d ed. 1985).
64. The nineteenth century's "last wrongdoer" rule is an example of such an avowedly fictionalist approach to intervening causation. See Lawrence S. Eldredge, Culpable Intervention as Superseding Cause, 86 U. PA. L. REV. 121, 124 (1937). On this rule, the law only need punish the (temporally) last wrongdoer in some complicated chain of causation leading to some legally prohibited result. Such "last wrongdoer" thus cuts off all earlier wrongdoers from liability for that harm.
65. Id. The problems with the rule have been well articulated for the last one hundred years, starting with Holmes: (1) the cases don't actually fit the doctrine, especially in cases of merely negligent or reckless wrongdoers where the last wrongdoer often does not insulate others up the chain of causation from liability; (2) there is no policy that can justify the significance given such temporal ordering of wrongdoing.
66. Id. at 124-25;
67. see also Clifford v. Atl. Cotton Mills, 15 N.E. 84, 87 (Mass. 1888) (Holmes, J.) (describing the "last wrongdoer" rule as no more than a "general tendency" of courts).
68. See, e.g., CAL. PENAL CODE § 664 (West 1999).
69. HART & HONORÉ, supra note 40, at 6. Sanford Kadish and John Gardner have also explicitly endorsed this kind of causal dualism.
70. Kadish, supra note 34, at 334;
71. John Gardner, Complicity and Causality, 1 CRIM. L. & PHIL. 127, 134 (2007).
72. HART & HONORÉ, supra note 40, at 186.
73. Id. at 388.
74. Id. at 195.
75. Antony Flew, Psychiatry, Law and Responsibility, 35 PHIL. Q. 425, 430 (1985)
76. (reviewing MICHAEL S. MOORE, LAW AND PSYCHIATRY: RETHINKING THE RELATIONSHIP (1984)).
77. This is not to be confused with statements of comparative causation, as in, "Factor X was sixty percent the cause, factor Y forty percent the cause of harm Z," Some of us think such scalar statements of degrees of causal contribution make perfectly good sense. See Moore, The Metaphysics of Causal Intervention, supra note 3, at 874 & n.229.
78. For real world examples (Sheldon Glueck and Norval Morris) and an analysis of why this is truly metaphysical gibberish, see Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091, 1114-19 (1985).
79. DONALD DAVIDSON, ESSAYS ON ACTIONS AND EVENTS 110-11 (1980).
80. Id. at 111.
81. See MOORE, supra note 5, at 230-31.
82. Thus, for example, the Model Penal Code eschews the biblical "thou shalt not kill" for one shall not "cause[] the death of another human being." MODEL PENAL CODE § 210.1 (1) (1985).
83. Dir. of Pub. Prosecutions for N. Ir. v. Lynch, [1975] A.C. 653, 659 (H.L.) (appeal taken from NICA (Crim)).
84. The House of Lords recognized as much by refusing the duress defense on roughly these facts (though involving stabbing instead of snooting) in Abbott v. The Queen, (1976) 3 All. E.R. 140, 142, 148 (P.C.) (appeal taken from Trin. & Tobago Ct. App.).
85. This is argued for more extensively in Moore, Patrolling the Borders, supra note 3 (manuscript at 36-37).
86. See, for example, Kimble v. Mackintosh Hemphill Co., 59 A.2d 68, 71 (Pa. 1948), where the defendant successfully argued that extreme winds were an intervening cause.
87. The hypothetical slightly alters the facts of Abbott, [1976] 3 All. E.R. at 141.
88. Kadish, supra note 34, at 372-85. In a recent paper, John Gardner does not see this problem as distinct from the general semantics of causatives just discussed.
89. See Gardner, supra note 43, at 135-36. Gardner's mistake here is due to his bloated notion of "proxyability." Gardner mistakenly assumes all (or most) criminal prohibitions utilizing the causative verbs of English create "nonproxyabile crimes." As we will see shortly, this is not Kadish's notion, which is much narrower and thus much more interesting.
90. Radish, supra note 34, at 373.
91. Id. (footnotes omitted).
92. The explicit definition in some states, such as North Carolina, provides that only penetration by the defendant's penis constitutes rape. N.C. GEN. STAT. §§ 14-27.1-14-27.10 (2005).
93. Dusenbery v. Commonwealth, 263 S.E.2d 392 (Va. 1980).
94. Id. at 393.
95. RESTATEMENT (SECOND) OF TORTS § 431 (1965);
96. RESTATEMENT OF TORTS § 431 (1934).
97. This "causation as primitive except for scalarity" approach was adopted by the American Law Institute from Jeremiah Smith, Legal Cause in Actions of Tort (pts. 1-3), 25 HARV. L. REV. 102, 223, 303 (1911-1912). Cause-as-primitive is a respectable view within the contemporary philosophy of science.
98. See generally D.M. ARMSTRONG, WHAT IS A LAW OF NATURE? (1983);
99. MICHAEL TOOLEY, CAUSATION: A REALIST APPROACH (1987).
100. RESTATEMENT (SECOND) OF TORTS § 431;
101. RESTATEMENT OF TORTS § 431.
102. See, e.g., Perkins, supra note 4, at 594.
103. For a summary, see Kadish, supra note 34, at 369-72.
104. Id.
105. Id.
106. E.g, AGATHA CHRISTIE, MURDER ON THE ORIENT EXPRESS (1960). For a real-Hfe, if scaled-down, version with only two wounders,
107. see People v. Lewis, 57 P. 470 (Cal. 1899).
108. Wilcox v. Jeffery, (1951) 1 All E.R. 464 (K.B.).
109. Id. at 466.
110. Moore, Causation and Counterfactual Baselines, supra note 3, at 1248-49.
111. State ex. rel. Martin v. Tally, 15 So. 722 (Ala. 1894);
112. see supra notes 16-18 and ac-companying text.
113. See supra text accompanying notes 26-27.
114. See Cook v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 74 N.W. 561 (Wis. 1898) (concurrent overdetermination);
115. City of Piqua v. Morris, 120 N.E. 300 (Ohio 1918) (asymmetrical overdetermination);
116. Dillon v. Twin State Gas & Elec. Co., 163 A. 111 (N.H. 1932) (preemptive overdetermination).
117. Moore, Causation and Counterfactual Baselines, supra note 3, at 1264-66.
118. Compare the differing views discussed in Causation and Counterfactual Baselines, id. at 1266-67,
119. with Moore, Patrolling the Borders, supra note 3.
120. The discussion that follows summarizes Moore, Causal Relata, supra note 3, at 614-25.
121. One needn't agree with the example to agree with the point being illustrated. If to your sense of how things are, dyings are just not-survivings, then transpose the example. And if your view is that surviving and dying are both positive events or states of affairs, then (given the contradictory or at least contrary relation between them) your "positive" events are at the same time "negative" events-that is, you seem committed to there being negative events, negative states of affairs, and negative properties.
122. For more details, see Moore, Causal Relata, supra note 3, at 617-18.
123. For a description of the rape that occurred in New Bedford, see Lynn S. Chancer, New Bedford, Massachusetts, March 6, 1983- March 22, 1984: The "Before and After" of a Group Rape, 1 GENDER & SOC'Y 239, 244-46 (1987). For a fictionalized account, see THE ACCUSED (Paramount Pictures 1988).
124. MOORE, supra note 5, at 278 n.42.
125. Moore, Causation and Responsibility, supra note 3, at 42.
126. Most of my article Patrolling the Borders, supra note 3, deals with the doing/allowing distinction.
127. See id. (manuscript at 44).
128. Most famous is Regina v. Dudley Stephens, (1884) 14 Q.B.D. 273,
129. where the defendants killed a cabin boy who was about to die of natural causes anyway. I discuss the run of acceleration cases in Moore, Patrolling the Borders, supra note 3 (manuscript at 44-48).
130. See Moore, Patrolling the Borders, supra note 3 (manuscript at 43-44) for a description of such interrogation techniques and an analysis of whether torture can be justified in the "war on terror."
131. See id. (manuscript at 43).
132. WILLIAM SHAKESPEARE, MACBETH act 2, sc. 2.
133. Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 67 (1976).
134. Sister Diana Ortiz acknowledged this in her Keynote Address to the conference at the City University of New York Graduate Center, Torture After 9/11: The Legal and Ethical Implications of Torture in the New Age of Terrorism (Oct. 24, 2003).
135. For those unfamiliar with the notation, P(E/C) means "the probability of E given C," whereas P(E) means "the probability of E."
136. For an excellent summary of the different interpretations of probability, see DONALD GILLIES, PHILOSOPHICAL THEORIES OF PROBABILITY 1-13 (2000).
137. 2.
138. For background information on the idea that causes raise the probability of their effects, see Christopher Hitchcock, Probabilistic Causation, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Summer 2007), http://plato.stanford.edu/archives/sum2007/entries/causation- probalistic/.
139. See id. § 6.2 for an explanation of theories that reach a contrary conclusion -that A did not cause V's death.
140. A "hard way" case is where there are two causal routes possible to some result, one route being easier than another in the sense that success is much more probable with the easier route. For example, I could hit a birdie in golf with a direct shot to the hole; or once in a great while I could make the birdie by hitting a tree in just such a way that the ball ricochets into the hole. Making the birdie the "hard way" is to hit the tree. Hitting the tree admittedly caused me to make the birdie but hitting the tree also lowered the probability of the birdie compared to a direct shot. For a number of such counterexamples, see Wesley C. Salmon, Probabilistic Causality, 61 PAC. PHIL. Q. 50, 68-70 (1980).
141. The example is discussed in Germund Hesslow, Two Notes on the Probabilistic Approach to Causality, 43 PHIL. SCI. 290, 291 (1976).
142. See the summary in Hitchcock, supra note 98.
143. I argue this throughout Moore, Causation and Responsibility, supra note 3.
144. The leading case on the tort of "lost chance" is Herskovits v. Group Health Cooperative of Puget Sound, 664 P.2d 474 (Wash. 1983). Eric Johnson nicely shows how many putatively cause-based liability cases in criminal law are in reality lost chance cases (because of laxity in the proof deemed sufficient for causation).
145. Eric A. Johnson, Criminal Liability for Loss of a Chance, 91 IOWA L. REV. 59, 69-76 (2005).
146. E.g, State ex rel. Martin v. Tally, 15 So. 722 (Ala. 1894).
147. An instance of the latter kind is Hyam v. Director of Public Prosecutions, [1975] A.C. 55, 78-79 (H.L.) (appeal taken from Eng.), in which the court determed that Mrs. Hyam did not intend to kill Mr. Booth, but she did intend to create a serious risk of death (in order to scare Mrs. Booth).
148. There is considerable debate here. For arguments supporting the idea that risk is not in itself harm, see Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. REV. 249, 262-65 (1996);
149. Stephen R. Perry, Risk, Harm, and Responsibility, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 321, 330-39 (David G. Owen ed., 1995). For an exploration of the idea that exposing someone to a risk is itself to harm her,
150. see Claire Finkelstein, Is Risk a Harm?, 151 U. PA. L. REV. 963 (2003).
151. Moore, The Independent Moral Significance of Wrongdoing, supra note 3, at 267-68.
152. Tally, 15 So. at 738-39.
153. Id. at 739.
154. See, e.g., Perkins, supra note 4, at 618.
155. See MODEL PENAL CODE § 5.01(3) (1985) (making liable for attempt one who "aid[s] another to commit a crime that would establish his complicity under section 2.06 if the crime were committed by such other person").
156. See, e.g., Perkins, supra note 4, at 600.
157. MODEL PENAL CODE § 2.06 cmt. 6 (c).
158. Tally, 15 So. at 739.
159. See 2 DAVID R. LEWIS, Postscripts to "Causation," in PHILOSOPHICAL PAPERS 172 (1986).
160. Id. at 176.
161. Id. at 178.
162. Id.
163. See Hitchcock, supra note 98, § 3.2.
164. See Larkins v. Police, [1987] 2 N.Z.L.R. 282, 283-86 (H.C.).
165. MODEL PENAL CODE § 2.06(3) (a) (ii).
166. Id. § 5.01 (3).
167. People v. Rizzo, 158 N.E. 888, 889 (N.Y. 1927)
168. (quoting Hyde v. United States, 225 U.S. 347, 388 (1911) (Holmes, J., dissenting)).
169. Admittedly, it is difficult to discern any one policy intuition guiding the old common law defense of "legal impossibility." The requirement that there be a "near miss" - a significant raising of objective chance - is the best sense I can make of the cases.
170. MODEL PENAL CODE § 5.01 (2).
171. See id. § 5.05 (2).
172. The "mental action" theorists saw this clearly. For a discussion, see MOORE, supra note 5, at 95-108.
173. These are roughly the facts of Thacker v. Commonwealth, 114 S.E. 504, 505 (Va. 1922).
174. Michael Zimmerman, Taking Luck Seriously, 99 J. PHIL. 553, 554-55 (2002). Christopher Kutz plainly feels the tug toward aretaic theories in his inchoate interpretation of complicity.
175. See Kutz, supra note 10.
176. But not as blameworthy, because she has done nothing wrong. In my lexicon, culpability is but one of two ingredients in overall blameworthiness, the other being wrongdoing. See Moore, The Independent Moral Significance of Wrongdoing, supra note 3, at 237-38.
177. Pinkerton v. United States, 328 U.S. 640 (1946).
178. Id. at 646.
179. Id. at 651 (Rutledge, J., dissenting in part).
180. MODEL PENAL CODE § 2.06(3) & cmt. 6(a) (1985).
181. Joshua Dressler heads off in this direction, although with only two categories of accomplices, "causal accomplices" and "noncausal accomplices," rather than four. Dressier, supra note 9, at 124-30.
182. On this notion of degrees of necessity, see Moore, Causation and Counterfactual Baselines, supra note 3, at 1204-13.
183. For development of this suggestion, see Moore, Causation and Responsibility, supra note 3, at 19, 41-43.
184. Regina v. Richards, [1974] Q.B. 776.
185. Id. at 780.