Concept
The Accomplice Liability Gap
Attempt by Conduct Designed to Aid Another
The Accomplice Liability Gap
Accomplice liability is derivative, which means it holds a helper responsible for an offense that someone else commits. The Model Penal Code states the premise in § 2.06(1): a person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.1 Case law describes the same structure when it says a defendant need not perform the criminal act himself, because he may be vicariously responsible for the act of the person who does perform it under the rules defining principals and conspiracies.2 The helper's own conduct, whether lending money or unlocking a door, often looks harmless taken alone. It becomes criminal only through its link to another person's crime.
Borrowed liability needs two things in place before anything can be borrowed. Someone must have committed the offense, since otherwise there is nothing to attribute to the helper, and the helper's conduct must have made contact with that offense, since otherwise the helper contributed nothing to the harm. Traditional complicity doctrine enforces each requirement separately, and a helper can fail either one while the helper's purpose remains exactly as dangerous as that of a helper whose friend succeeded. The next two parts take the requirements in turn, beginning with the link between the helper and the principal.
Aid That Never Assists
At common law, a person is an accomplice if he intentionally aids the principal, and the amount of aid does not matter. In Rosemond v. United States the Supreme Court described that baseline: the common law imposed aiding and abetting liability on a person with the requisite intent who facilitated any part of a criminal venture, and because the quantity of assistance was immaterial, it was enough that the accomplice did something to aid the crime.3 The doctrine is equally relaxed about causation. In State ex rel. Martin v. Tally, a court addressed a defendant who had prevented delivery of a warning to a man who was then killed, and held that the aid need not be a but-for cause of the death; it suffices that the aid made the principal's task easier, even if the crime would probably have happened without it.4 Because the bar on how much help is required sits so low, the single thing it still demands is easy to overlook.
That thing is actual assistance. The burglary illustration of Sadie and Paul shows the actual assistance requirement at work: Sadie unlocks the front door of Roger's house to make Paul's planned burglary easier, but Paul, unaware of her act, enters through a window. At common law Sadie is not an accomplice to the burglary, because an actor who intentionally aids the principal is an accomplice however minimal the aid, but the aid must in fact assist, and Sadie's effort to help failed entirely.5 The same result follows when encouragement never reaches its target, as when a helper shouts support to a principal who is deaf. Most courts would find no accomplice liability where the aid is completely ineffective or the principal never learns that encouragement is being offered.6 Students lose points here when they treat an effort to help as if it were help.
The reason for a floor beneath such a low ceiling comes from what derivative liability rests on. The law treats a helper as a co-author of the principal's crime because the helper participated in it. How much participation is a question the law declines to press, since no one can say after the fact whether the crime would have happened anyway, and a rule demanding proof of but-for causation would let nearly every helper escape. Whether any participation occurred is a different question. When no help reaches the principal's conduct, nothing in the world connects the helper to the harm, and holding the helper to the principal's offense would rest on purpose alone. The common-law rule therefore asks only whether some contribution occurred and treats its size as irrelevant.
The second variation works because aid the principal knows about can operate as encouragement even when it goes unused, which is why an accessory who supplies tools for a particular burglary does not escape merely because the burglar finds and uses other tools at the scene.7 The common law stops short of help the principal never uses and never learns about. A helper who leaves an unopened package of tools on a porch is in that position.
The Model Penal Code widens the definition of an accomplice at exactly this point. Under § 2.06(3)(a)(ii), a person is an accomplice if, with the purpose of promoting or facilitating the offense, he "aids or agrees or attempts to aid" the other person in planning or committing it, so an unsuccessful effort to help counts as the conduct element of complicity.8 On that rule Sadie would be an accomplice if Paul went on to commit the burglary through the window. Even the Code's broader rule, however, speaks of an accomplice in the commission of an offense, and complicity under § 2.06(1) still presupposes that someone's conduct committed it.9 That presupposition is the second requirement.
No Completed Principal Offense
The second requirement runs to the other end of the chain. Because complicity attributes another person's offense to the helper, that offense must actually have been committed. Michigan's statement of the elements of aiding and abetting in People v. Genoa lists this first: (1) the underlying crime was committed by either the defendant or some other person; (2) the defendant performed acts or gave encouragement that aided and assisted the commission of the crime; and (3) the defendant intended the commission of the crime or knew that the principal intended it at the time of giving aid or encouragement.11 The list separates a question about the crime, a question about the helper's conduct, and a question about the helper's mind, and the first can fail even when the helper acted and intended the result.
In Genoa an undercover Michigan State Police agent met the defendant at a hotel and proposed that, if the defendant gave $10,000 toward the purchase of a kilogram of cocaine that the agent claimed he would then sell, the agent would repay the $10,000 along with $3,500 in profit and a client list. The defendant agreed and returned with the money; the agent turned it over to the State Police, and the defendant was arrested. He was charged with attempted possession with intent to deliver 650 grams or more of cocaine. The trial court dismissed the charge because the agent never intended to commit the contemplated crime and never did, so that the defendant, though he believed he was funding an illegal enterprise, had financed nothing, and the Court of Appeals affirmed.12
The prosecution's difficulty was structural. The defendant could not be shown to have attempted to possess the cocaine himself, because the evidence showed only that he was to help finance the venture, so the only available theory was that he attempted to aid and abet the possession offense.13 That theory depends on the first Michigan element, and the facts supplied no principal offense: the only other participant was an undercover officer who had no intention of dealing cocaine and never dealt any. Ordinary attempt could not reach the defendant, and complicity could not either, because there was no crime for complicity to attach to. A defendant's belief that a crime is underway cannot stand in for the crime itself.
The reason for this requirement is the mirror image of the reason for the first. Actual assistance connects the helper to the harm, and the completed offense supplies the harm. Complicity is a rule of attribution, and attribution needs something to attribute; where no one commits the offense, the helper stands accused of a crime that does not exist, and all that remains to punish is the helper's purpose. Stings of this kind show the consequence clearly, because the person receiving the help is the one participant who will never commit the crime. A financier who funds such an operation can be fully culpable in purpose and still fall outside complicity law. Genoa also fails at the opposite end of the chain from the Sadie illustration: there the principal committed the burglary and the help never reached him, while here the defendant handed over the money and no one committed the crime.
Taken together, the two requirements produce the gap that subsection (3) is written to close. A helper like Hal, whose tools never reach Rena and whose friend never commits a burglary, fails both requirements, and a helper whose money reaches an undercover officer fails the second. In each case the helper's purpose and conduct are what they would have been had the plan succeeded, and the difference lies in facts the helper cannot control. Ordinary attempt law does not fill the space, because most jurisdictions reject attempt liability for attempted complicity, reasoning that attempted complicity in a substantive crime is not an attempt to commit that crime and that complicity is not itself a crime.15 The result looks lopsided beside solicitation, which at common law was complete without proof that the person solicited agreed, attempted, or committed the crime.16 The unsuccessful encourager was therefore punishable while the unsuccessful aider was not, and the logic of subsection (3) is to restore symmetry by punishing aid on the same footing as encouragement.17 The next section reads that subsection element by element.
Aid That Never Assists
The first requirement of complicity governs the link between the helper and the principal, and the common law sets that link remarkably low. A person is an accomplice when he intentionally aids the principal, and the amount of aid does not matter. In Rosemond v. United States the Supreme Court traced this rule to the common law: a person with the required intent who facilitated any part of a criminal venture was liable, because the quantity of assistance was immaterial so long as the accomplice did something to further the crime.18 The same opinion adds that courts have never treated the importance of the aid rendered as relevant, so a helper who advances only a minor piece of the offense answers for the whole of it.19 Causation is handled just as loosely. In State ex rel. Martin v. Tally, a defendant had prevented a warning from reaching a man who was later killed, and the court held that the prosecution did not have to show the killing would have been impossible without that help; it is enough that the aid made the principal's task easier, even if the end would in all probability have been reached anyway.20
Because the ceiling on required aid sits so low, the one thing the doctrine still demands is easy to overlook. The aid must in fact assist the principal's crime, a requirement this chapter calls actual assistance. The standard illustration involves Sadie, who unlocks the front door of Roger's house to make Paul's planned burglary easier. Paul, unaware of what she did, enters through a window. At common law Sadie is not an accomplice to the burglary: an actor who intentionally aids the primary party is an accomplice however minimal the aid, but the aid must in fact assist, and her effort to help failed entirely.21 Nothing is missing from her state of mind, since she acted deliberately to promote the burglary. What is missing is any contact between her act and Paul's crime, which went forward exactly as it would have had she never touched the lock.
The twin comes out the opposite way because the standard from Tally counts help that merely makes the crime easier, whether or not the crime would have occurred without it.22 Paul's use of the unlocked door gives Sadie's act that minimal contribution, and the availability of the window does not erase it. The line therefore falls at use rather than at necessity: an unlocked door that is used is help, while an unlocked door that is bypassed is an unrealized hope.
Sadie's situation is one instance of a wider pattern. Encouragement shouted to a principal who is deaf, or a telegram operator who destroys the defendant's interfering message while the warning is delivered anyway, produces aid that is completely ineffective, and when aid is ineffective or the principal never learns that encouragement is being offered, most courts probably will not find accomplice liability.23 Some courts also require that help given before the crime be at least minimally effective, so a mother who leaves a note reading "Have a good day robbing the bank!" on the kitchen table, which her son never sees, may avoid a charge as an accessory in some jurisdictions.24 Help that the principal knows about is different, because it can operate as encouragement even when it goes unused, which is why a supplier of tools for a particular burglary does not escape merely because the burglar finds and uses other tools at the scene.25 Where there was no preconcert and only an attempt to aid, the case resembles an uncommunicated willingness to help if needed, and that resemblance supports an argument for no liability.26 The fact separating the supplied tools from Sadie's unlocked door is communication: the burglar received the tools, and Paul never learned of the door.
Each half of the common-law rule has its own logic. The generous half, which ignores how much help was given, reflects what a court can actually prove: after a crime has occurred, no one can say whether it would have happened anyway, and a rule demanding proof of but-for causation would let almost every helper escape. The strict half, which demands some real contribution, reflects what derivative liability is. The law treats a helper as a co-author of the principal's offense because the helper took part in it, and a helper whose effort never touches the principal's conduct took part in nothing. Convicting that helper as an accomplice would attach the principal's offense to a person whose only link to it is purpose. The rule therefore asks whether any contribution occurred and treats its size as irrelevant, at the price of leaving unpunished a helper whose blameworthiness, measured by purpose and conduct, was complete.
The two Sadie versions show where that price falls. In both, Sadie has the same purpose and performs the same act at the same door, and the difference between an accomplice and a person who escapes complicity lies in the route Paul chose, a fact she did not control. At common law the answer for the first version is no. Whether a jurisdiction that follows the Model Penal Code reaches the same result is taken up when this chapter reads subsection (3). Complicity also has a second requirement that can fail even when help is real, because the principal's offense must actually be committed, and the next part turns to that.
No Completed Principal Offense
The second requirement of complicity sits at the opposite end of the chain from actual assistance. Accomplice liability makes a helper answerable for an offense that someone else carries out, which means the offense must in fact have been carried out before the helper can be held for it. This chapter calls that the completed principal offense requirement. The Model Penal Code's general provision builds the assumption into its wording: a person is guilty of an offense when it is committed by his own conduct or by the conduct of another person for whom he is legally accountable.28 Accountability is a relationship between the helper and someone's conduct that constitutes the crime, so when no one's conduct constitutes it, the relationship has nothing to attach to. Michigan's statement of the elements of aiding and abetting puts the point first. The prosecution must show that the underlying crime was committed by the defendant or some other person, that the defendant performed acts or gave encouragement that aided and assisted it, and that the defendant intended the crime or knew the principal intended it when giving the aid.29 The three elements address the crime, the helper's conduct, and the helper's mind, and the first can fail even when the other two are fully satisfied.
In People v. Genoa an undercover Michigan State Police agent met the defendant at a hotel and proposed a joint cocaine purchase. If the defendant put up $10,000 toward a kilogram of cocaine that the agent said he would then sell, the agent would return the $10,000 with $3,500 in profit and a client list.30 The defendant accepted and came back with the money, which the agent handed to the State Police, and the defendant was arrested and charged with attempted possession with intent to deliver 650 grams or more of cocaine. The district judge dismissed the charge because the agent never intended the contemplated crime and never committed it, so the defendant, though he believed he was paying for an illegal enterprise, had financed nothing. The Michigan Court of Appeals affirmed the dismissal.31
The prosecution's difficulty was structural. The court observed that the only theory open to the State was that the defendant attempted to aid and abet the possession offense, because the evidence showed only that he was to help finance the venture and so could not show even an attempt by him to possess the cocaine himself.32 Ordinary attempt law therefore had nothing to work with. The aiding-and-abetting theory needed a committed offense, and the only other participant was an officer who had no intention of dealing cocaine and never dealt any. The defendant's purpose and his payment were exactly what a successful scheme would have involved, and they could not supply the missing crime, because no principal offense means no accomplice.
The requirement has a functional reason and an incentive reason. Complicity is a rule of attribution, and attribution needs something to attribute. Convicting a helper as an accomplice where no one committed the offense would leave the helper guilty of a crime that never occurred, so the only thing left to punish would be the helper's purpose, and derivative liability does not punish purpose standing alone. The incentive side appears in sting operations: the officer who proposes the deal is the one participant certain never to commit the crime, so a financier who funds the operation can be fully culpable in purpose and still fall outside complicity. The same structure arises when the person solicited only pretends to cooperate. In Davis, the man solicited, Dill, was a feigned participant, so under traditional doctrine he could not be treated as the defendant's accomplice, and the defendant could not be held accountable for Dill's steps however far they went; the defendant's liability would have to rest on his own acts.33
Two other decisions show how this limit operates in different settings. In People v. Washington, a California felony-murder case, a robbery victim killed someone, and the court held that malice could not be attributed to the robber, because the statute required that the felon or an accomplice commit the killing.34 The setting differs from Genoa, but the principle carries over: liability for another's act travels only along a recognized link, and an act that belongs to someone outside that link passes nothing to the defendant. In People v. Dlugash, the trial court had withdrawn accessorial liability from the jury and the State could not appeal that ruling, which left the New York Court of Appeals to ask whether the defendant's own conduct amounted to attempted murder.35 When the vicarious route is closed, the case stands or falls on the defendant's own acts, and a defendant who only financed another's venture has no such acts of possession to point to.
The pair isolates the variable. In both versions the defendant intends the crime and hands over the money, and the outcome differs solely because in one version the other participant commits the offense and in the other the other participant is an officer who never does. That also shows why a defendant's belief that a crime is underway cannot do the work of the crime itself.
The defendant in Genoa had the purpose and had done the act that a successful scheme would have required, yet neither attempt nor complicity could reach him. That result raises the question of what kind of rule could reach a helper on the strength of the helper's own purpose and conduct, without waiting for anyone else to commit a crime. The next section takes up the text of subsection (3), which is written with that question in mind.36