Culpability for Results

Culpability for Results

Accomplice liability for offenses defined by a result, such as a death or a serious injury, rests on two subsections of § 2.06 that divide the work between them. Subsection (3) fixes the conduct for which the defendant answers: a person who acts with the purpose of promoting or facilitating the offense and aids, agrees to aid, or attempts to aid another in planning or committing it is an accomplice in what the principal does, and the other forms of conduct covered earlier work the same way.¹ Subsection (4) then fixes the defendant's own mental state toward the outcome of that conduct. When causing a particular result is an element of the offense, an accomplice in the conduct causing the result is an accomplice in the offense if he acts with the kind of culpability, if any, with respect to that result that the offense requires.² Subsection (3) therefore answers whose conduct the defendant is accountable for and with what aim, while subsection (4) answers what the defendant must have intended, known, or risked about the result that conduct produced.

The Code splits the inquiry this way because of how it defines culpability. It treats an offense as a set of material elements sorted into three categories, conduct, attendant circumstances, and result, and it requires culpability to be established separately for each element.³ An offense defined as recklessly causing a death therefore has a conduct element and a result element that can carry different mental states, and nothing in that structure assumes that every participant in the conduct shares one attitude toward the outcome. Applying the two subsections together, the court in Commonwealth v. Roebuck read (4) to mean that a defendant is accountable when he aids another in planning or committing the conduct with the purpose of promoting or facilitating it and, for an offense whose result element calls for recklessness, acts recklessly toward that result.⁴

Assigning the mental states separately protects against two different errors. If the accomplice's culpability toward the result were simply borrowed from the principal, a participant who helped with the conduct but was at most careless about where it would lead could be convicted of an offense demanding a far worse state of mind, and would be punished more severely than his own culpability warrants. In the other direction, the Code asks about purpose only at the level of conduct, so an accomplice who was in fact reckless or negligent toward the result does not escape merely because he never wanted the result, as long as that level of culpability suffices for the offense.⁵ The two parts that follow develop this division in turn: first how the purpose directed at conduct and the culpability required for the result operate side by side in a single defendant, and then why the Code refuses to substitute the foreseeability standard used for co-conspirators.

Separate Mental States for Results

Applying subsections (3) and (4) to a result offense takes two steps, and the order matters because each step asks about a different part of the crime. The first step looks at conduct. A person who, with the purpose of promoting or facilitating the offense, aids, agrees to aid, or attempts to aid another in planning or committing it is an accomplice under (3).⁶ That purpose is a conscious objective directed at the conduct the Code has declared criminal, such as firing into a crowd or driving a stolen car, and it does not extend to whatever harm the conduct later produces.⁷ The second step looks at the result. Once the defendant is an accomplice in the conduct, (4) asks whether the defendant acted with the kind of culpability, if any, toward the result that the offense itself requires, which may be purpose, knowledge, recklessness, or negligence depending on how the offense is written.⁸ The words "if any" mean that an offense requiring no culpability toward its result requires none from the accomplice either.⁹

The split follows from how little the first step demands of a defendant's behavior. Because an accomplice need only help, agree to help, or try to help, and the help may be slight, the conduct alternative screens out very few people. The mental state has to do the screening, and requiring a purpose directed at the principal's conduct separates the person who wanted the criminal conduct to happen from the person who merely supplied something or happened to be nearby.¹⁰ Extending that demand to the result would make no sense for an offense that reckless or negligent causing already satisfies, because the accomplice would have to want an outcome the offense itself treats as unintended. Subsection (4) therefore borrows the offense's own measure for the result element, so that each participant's liability tracks that participant's own state of mind toward the harm. An accomplice who recklessly endangers life by assisting can be convicted of manslaughter if death results, even though the principal's liability sits at a different level, and the drafters rejected the alternative of holding an accomplice for every objectively foreseeable result, a rejection the next part develops.¹¹

An earlier line of reasoning shows why the two steps must be kept apart. An Alaska decision, Echols, reasoned that complicity requires an intent to promote the offense, that the charged offense required only that the principal recklessly cause a result, and that convicting an accomplice would therefore mean finding that the accomplice intended to assist an unintended result, which is a logical impossibility.¹² The syllogism fails at its first premise. The statutory words about promoting or facilitating the offense refer to the conduct that constitutes the actus reus, so the accomplice's purpose attaches to the principal's conduct, and the mental state toward the result is a separate question that the offense definition answers.¹³ Nobody is asked to intend what the offense treats as unintended, because purpose is demanded only at the conduct and the result requires only what the offense requires. In Riley v. State the Alaska Court of Appeals overruled Echols and rejected any reading that sets (3) against (4), explaining that the Code was drafted as a unified whole in which (3) fixes the conduct for which an accomplice answers and (4) assesses culpability toward the resulting harm separately from anyone else's.¹⁴

The facts in Riley show the two steps working together. Riley was convicted of first-degree assault after Portalla shot into a crowd and people were injured, and the court explained that he could be convicted on either of two routes: by personally firing into the crowd, or by acting with intent to promote Portalla's shooting and soliciting, encouraging, or assisting it.¹⁵ Both routes are ways of proving accountability for the conduct that inflicted the injuries. The assault offense required recklessness about the possibility of serious physical injury, so the prosecution also had to prove that mental state, and it was the same whether Riley acted as principal or as accomplice.¹⁶ Pennsylvania's court read the Code the same way in Commonwealth v. Roebuck: an accomplice in the conduct is accountable when the accomplice aids with the purpose of promoting or facilitating that conduct and acts with the recklessness that a reckless-result offense requires.¹⁷

A lookout supplies a second illustration of the same structure. A stands watch while P hot-wires a car and then rides along as P speeds away and seriously injures a pedestrian. If the offense is vehicular assault, which P commits by recklessly causing injury, A can be convicted as an accomplice to it, but only if the prosecution shows that A also acted with recklessness toward that injury.¹⁸ A's purpose to help with taking and driving the car satisfies the first step, and A's own awareness of the risk of injury, and disregard of it, satisfies the second.

The comparison isolates the second step. In both versions A is willing to help steal the car, so the purpose directed at conduct is the same. What differs is A's own attitude toward injury, and under (4) that attitude decides whether the injury is attributed to A, since the principal's recklessness does not transfer to the accomplice.²⁰ The departure before the drive also removes A from the driving itself, so the cleaner comparison keeps A in the car and asks only whether A consciously disregarded the danger. A passenger who watched P weave through traffic and said nothing stands where the first A stood, while a passenger who noticed nothing amiss stands where the second A stood.

The taxi problem puts both steps in one scene, though it is a problem to work through and not a decided case.

On an exam stem, the usual error is concluding that no one can be an accomplice to an unintended result, on the theory that accomplice liability requires purpose and the result was not wanted. That conclusion skips the division between conduct and result, since purpose is tested against the principal's conduct and the result is tested against the culpability the offense defines. The opposite error treats the principal's mental state as the accomplice's, so that the accomplice is convicted of whatever the principal's state of mind would support. Under (4) the accomplice's culpability toward the result is measured on its own, and an accomplice who lacks it escapes the result offense while remaining accountable for any other offense the accomplice did purposely promote, such as the theft.²²

Why Foreseeability Is Not Enough

The two-step structure of subsections (3) and (4) is easiest to see against the rule it displaces for conspirators. Under the Pinkerton rule, a conspirator may be held liable for a crime committed by another member of the conspiracy, even a crime that formed no part of the original agreement, so long as the crime was in furtherance of the conspiracy, within its scope, and a reasonably foreseeable consequence of the agreement.²⁴ The rule comes from Pinkerton v. United States, a 1946 decision that upheld Daniel Pinkerton's conviction for substantive tax offenses although there was no evidence that he took part directly in all of them, and he was in prison when some were committed.²⁵ The Court reached that result by applying agency law to conspiracy, under which one partner's acts within the scope of the venture can be charged to the others, and Justice Rutledge's dissent objected that vicarious-liability principles drawn from commercial and tort law are out of place in deciding criminal responsibility.²⁶

Each of the three Pinkerton conditions looks at the offense and its relationship to the agreement. None asks what the defendant personally did to bring the offense about, and none asks what the defendant intended, knew, or risked about it. A conspirator who never solicited or aided the offending conduct can therefore satisfy the entire test, which is what makes the rule so useful to prosecutors and what the Code refuses to accept.

United States v. Mothersill shows how far that reach extends. A Florida highway patrol trooper stopped a speeding rental car and, while it awaited impoundment, opened a gift-wrapped package in the trunk that appeared to hold a microwave oven; a homemade pipe bomb inside exploded and killed him.²⁷ The resulting indictment charged drug and racketeering conspiracies among other counts, and several defendants were convicted of the trooper's death on the co-conspirator theory of Pinkerton.²⁸ The case is presented as an illustration of the outer limits the rule has reached in one federal circuit, because it carries the foreseeability test from a drug and racketeering agreement to a death caused by an explosive device. A conviction on that theory requires the three conditions and does not require proof that the defendant built, placed, or knew of the bomb. Whether any of those defendants could be convicted under the Code depends on facts that do not matter here; the point is that foreseeability of the death, the center of the Pinkerton inquiry, would not have been enough.

Subsection (4) answers the foreseeability approach by declining to borrow it. The drafters rejected the notion that an accomplice should answer for any and all objectively foreseeable results of the principal's conduct, and provided instead that each defendant's culpability toward the result is assessed separately, according to that defendant's own mental state.²⁹ Consistent with that choice, the Code rejects Pinkerton outright, and a conspirator answers for a co-conspirator's substantive crime only when the strict conditions for accomplice liability are met.³⁰ Those conditions are the two steps developed in the preceding part. The defendant must be an accomplice in the conduct, which under subsection (3) means soliciting, aiding, agreeing to aid, or attempting to aid in planning or committing the offense with the purpose of promoting or facilitating it.³¹ The defendant must also have whatever culpability the offense requires toward the result.³²

Foreseeability supplies neither step. It cannot supply the first, because a prediction made by an outside observer does not show that the defendant solicited or helped with the particular conduct, and the required purpose must attach to the particular conduct that forms the basis of the charge.³³ It also fails the second, though less obviously. Where an offense requires only negligence toward the result, the second step comes close to asking what a reasonable person would have foreseen, but it asks that only after the defendant has become an accomplice in the conduct, and it asks it about the defendant's own situation rather than the conspiracy's. Where the offense requires recklessness, foreseeability is further off the mark, because the question becomes whether the defendant actually perceived a substantial risk of death and disregarded it.³⁴

Two reasons stand behind the Code's choice, and they operate at different levels. The first concerns proportion. The drafters illustrated it with People v. Luciano, where the leaders of a combination to control commercialized vice in New York City were convicted of sixty-two counts of compulsory prostitution, a result they considered proper for defendants who directed the combination and solicited and aided numberless specific crimes.³⁵ The same liability for each prostitute or runner in the plan seemed unjust to them, because those participants exerted no substantial influence on a hundred others who each pursued individual ends within the shelter of the combination, and the law would lose its sense of proportion if the conspiracy alone made each of them accountable for thousands of offenses they did not know of and did not influence.³⁶

The second reason concerns grading. A result offense is graded by the culpability the defendant had toward the result, so the same death can support a murder prosecution on one theory of mental state and a manslaughter prosecution on another.³⁷ A rule that attached the principal's offense, or whatever offense was foreseeable, to every participant would assign the highest grade the facts support to a person whose own state of mind supports a lower grade or none. Under subsection (4) the homicidal act is attributed to both participants, and the liability of each is measured by that participant's own degree of culpability toward the result, so an accomplice who recklessly endangers life by assisting can be convicted of manslaughter even though the principal's liability is at a different level.³⁸

A twin of the Mothersill setting shows where the Code does reach a member of such a ring.

Change one set of facts and the answer reverses.

The ring, the bomb, and the death are the same in both scenes, and a prosecutor could argue foreseeability equally in each. What moves the result is whether the defendant solicited or aided the bomb conduct with the purpose of promoting it and was personally culpable toward the death. Ortiz meets both requirements, and Mara meets neither.

On an exam stem the usual error is to treat foreseeability of the result as a substitute for either step, reasoning for example that because violence by one ring member was a natural consequence of the drug business, every member is an accomplice to the resulting death. The Code analysis runs separately for each defendant, first asking about accomplice status in the conduct and then about culpability toward the result. A second point concerns which rule governs. Pinkerton remains law in the federal courts and some states, while other states have joined the Code in rejecting it, so a stem that announces the Model Penal Code or a complicity statute modeled on it calls for the two-step analysis, and a stem set in federal court may call for Pinkerton.⁴¹