Modern Statutory Departures

Modern Statutory Departures

The four categories and their procedural technicalities describe the common law before legislatures revised it, and a modern fact pattern is usually governed by a statute that discarded most of that machinery. Nearly all states have abrogated by legislation the distinction between principals and accessories before the fact, so a defendant who would once have been an accessory before the fact may now be tried and punished without regard to the status of the principal's prosecution.¹ The old rules had tended to shield accessories from punishment despite overwhelming evidence of their assistance, and the party shielded was often the planner of the whole operation.² Legislatures answered by holding the helper responsible for the offense itself, whatever becomes of the principal's case, and by moving help given after the crime into a separate offense aimed at obstruction of justice.³ The two changes are taken in turn, beginning with what became of the three categories of participants in the felony.

Principals Without Labels

The federal complicity statute shows the pattern most plainly. Section 2(a) of Title 18 makes punishable as a principal whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission.⁴ That list of verbs covers the helping that defined both the second-degree principal and the accessory before the fact, yet the statute asks nothing about whether the helper stood at the scene, so presence no longer sorts anyone into a different class. Subsection (b) adds that whoever willfully causes an act to be done that would be an offense if performed directly by that person or by another is likewise punishable as a principal.⁵ That provision carries forward the idea behind the innocent agent, under which the person who sets another in motion answers for the act.

California's Penal Code § 31 reaches the same place in different words, making principals of all persons concerned in the commission of a crime, whether they directly commit the act, aid and abet its commission, or, not being present, advise and encourage it.⁶ The California court read that language to mean that those who at common law would have been accessories before the fact or principals in the second degree are prosecuted, tried, and punished as principals alongside the actual perpetrators, and that the term aider and abettor now describes a principal other than the perpetrator, whether present or absent.⁷ The Model Penal Code eliminates the common-law distinctions in § 2.06.⁸ Statutes written under its influence typically make an accomplice accountable for the conduct of the person aided and do not sort accomplices into degrees by presence at the scene.⁹ What kind of help and what mental state make someone an accomplice are separate questions addressed elsewhere, and the point here is only that the old labels have dropped out of the structure.

Three practical consequences follow from these statutes, and each reverses a technicality covered earlier.

Complicity under these statutes is one of the means of committing the substantive offense, so the helper is charged with whatever crime was facilitated and not with a free-standing crime of being an accomplice.¹³ The Maryland experience shows what the statutes remove. In the Maryland case involving Sowell, the court held that the state kept the common-law distinction until its legislature provided otherwise, and it reversed the convictions of a robbery's planner because he was tried only as a second-degree principal, a status that requires presence, while the proof showed an absent accessory before the fact.¹⁴ Maryland's present statute abrogates the distinction between accessory before the fact and principal, except for certain sentencing proceedings, and lets an accessory be charged, tried, convicted, and sentenced as a principal whether or not the principal was charged, acquitted, or convicted of a lesser or different crime.¹⁵

Where a statute or opinion still speaks in the old terms, the substance has outlasted the labels. One who aids, abets, commands, counsels, or encourages another to commit a crime remains a party to the underlying crime, and it usually does not matter whether that person was present at the scene.¹⁶ Presence therefore matters in a modern case only if the governing statute, or a jurisdiction's retained classification, makes it matter.

The Accessory After the Fact Apart

The abolition of labels stops at one category. The accessory after the fact, who knows a felony has been committed and then helps the felon avoid detection, arrest, trial, or punishment, is generally no longer treated as a party to the felony and answers instead for a separate offense, such as hindering apprehension or prosecution under the Model Penal Code.¹⁸ The federal statutes follow the same split: 18 U.S.C. § 3 defines the accessory after the fact in a provision apart from § 2 and sets a lesser penalty than the principal would receive.¹⁹

The reason applies the logic that justified merging the other three categories, and it points the opposite way for this one. A principal in either degree and an accessory before the fact each played a part in bringing the crime about, so holding them answerable for the crime itself fits what they did. The accessory after the fact enters only once the felony is finished, so that person had no part in causing it, and the wrong committed is interference with the processes of justice, which is best defined and punished as such.²⁰ Consistent with that view, almost all American jurisdictions fix the accessory after the fact's penalties without reference to the penalty for the principal offense.²¹

Because the offense is separate, the charge must be separate too. Modern law generally allows a defendant to be charged as if a principal and convicted on proof of having aided another, but a conviction as an accessory after the fact cannot be sustained on an indictment that charges the principal crime.²² A charge of the principal crime tells the defendant to prepare against accountability as a principal or as an accessory before the fact, and it gives no notice of evidence that the defendant helped the perpetrator after the crime was done.²³