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Reassessing Professor Dresslers Plea for Complicity Reform: Lessons from Civil Law Jurisdictions
Luis E. Chiesa
I. INTRODUCTION In an essay that has not garnered the attention it deserves, Professor Joshua Dressler cogently argued in favor of a significant overhaul in American complicity law.1 The most interesting claim advanced by Dressler was that trivial assistance should be punished as a lesser offense.2 That is, he argued that accomplices that help the perpetrator consummate the crime by providing minor or trivial assistance are generally less blameworthy than participants who provide significant or essential aid to the perpetrator.3 This, in turn, warrants punishing minor accomplices less than the actual perpetrator. It should also lead to punishing minor accomplices less than major or substantial accomplices. The intuitive appeal of Dresslers thesis is readily apparent from one of the examples he discusses in the essay. In United States v. Ortega,4 the defendant sat in the back of a van when a drug transaction took place.5 A friend of the defendant entered the vehicle and poked around looking for something.6 He then asked the defendant where is it? and the defendant replied over there while pointing to an area on the floor of the van.7 The friend looked in the place indicated by the defendant and found a bag
Professor of Law and Director of the Buffalo Criminal Law Center, SUNY Buffalo Law School, The State University of New York. I am indebted to Professor Joshua Dressler for taking the time to read the piece and provide me with valuable feedback. 1. Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense?, 5 OHIO ST. J. CRIM. L. 427 (2008). 2. Id. at 443. 3. Id. 4. United States v. Ortega, 44 F.3d 505 (7th Cir. 1995). 5. Id. at 507. 6. Id. 7. Id.

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of heroin.8 Defendant was charged with aiding and abetting the possession of heroin with intent to distribute it and with conspiracy to distribute heroin.9 The conspiracy charge was dismissed when the jury hung on it, presumably because the prosecution was not able to prove beyond a reasonable doubt that the defendant had agreed to help the perpetrator possess the drugs with intent to distribute them.10 Nevertheless, the defendant was convicted as an accomplice to the perpetrators possession with intent to distribute.11 Writing for the Court of Appeals, Judge Posner affirmed the conviction, contending that pointing to the bag and saying that it was over there was enough assistance to satisfy the conduct element of complicity.12 While Dressler does not fully flesh out what he finds disturbing about Ortega, it is not difficult to figure out why he is concerned by the outcome of the case. Given that American complicity law punishes accessories as severely as perpetrators, the defendant in Ortega will receive the same punishment as the person who actually retrieved the heroin and held it with the intent to sell.13 This result is counterintuitive. Surely the person who buys the drugs and secures the sale is more blameworthy than the person who happens to be inside the automobile where the drugs are stashed and points out that they are over there. Similarly, the person who hands over a knife to someone else, knowing that the knife will be used to stab a person, is simply not as blameworthy as the person who actually stabs the victim. By the same token, giving someone a pen so that they can forge a document is just not as worthy of condemnation as actually forging the document. That the law of complicity fails to account for the different levels of culpability for these acts is troubling. As a result, Dressler suggests that trivial assistance should be punished less than actually perpetrating the offense or than providing substantial assistance to the perpetrator.14 More specifically, he argues that:
The best reform of complicity law may be to distinguish exclusively on the basis of the substantiality of the actors participation in an offense, without direct consideration of causation principles. A person whom the fact-finder determines was a substantial participant (with the requisite mens rea, of course), and only such a person, would be convicted of the same offense (and subject to the same punishment) as the principal,

8. 9. 10. 11. 12. 13. 14.

Id. Id. at 506. Id. Id. Id. at 507-08. Id. Dressler, supra note 1, at 447.

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based on traditional derivative liability principles. . . . In regard to insubstantial participants in a crime, it would constitute poor policy, whether one applies utilitarian or just-deserts philosophy, to allow such a person to escape criminal liability. Minor assistance should constitute a separate and lesser degree of offense than the crime committed by the principal party.15

Although Dresslers proposal is quite sensible, it raises an important issue that is left unresolved. How should a judge or jury go about determining whether an accomplices contribution is substantial or insubstantial? This is a matter of considerable difficulty. Nevertheless, Dressler summarily dismisses it by stating that:
Substantial participant concededly is an imprecise term, but certainly no more so that the doctrine of proximate causation, which invites the fact-finder to draw justice-based lines of responsibility. Ultimately, the issue here is whether the accomplices role in the planning or commission of the offense is sufficiently great that it is just to hold her accountable forto derive liability forthe offense committed by the principal.16

Dresslers solution to the thorny problem of how to non-arbitrarily distinguish between substantial and insubstantial participation is unsatisfactory.17 Pointing out that the doctrine of proximate causation is full of vagaries and imprecisions does not justify crafting a new doctrine that generates additional vagaries and imprecisions.18 To the extent possible, we should avoid infusing the criminal law with more vagueness than what is currently tolerated. Furthermore, it would
Id. at 448. Id. See id. It is important to note, however, that Dressler originally proposed that the law distinguish between causal and non-causal accomplices. According to this approach, accomplices who give aid that is considered a but-for cause of the consummation of the offense should be punished more severely than those who assist by providing contributions that are not but-for causes of the consummation of the offense. This approach is objectionable. Nevertheless, as Dressler concedes, reforming the criminal law to adopt such a view of complicity is likely to fail because [t]he causation-plus approach would necessitate complex statutory offense and/or sentencing distinctions that might deter even reformminded lawmakers from proceeding. In these circumstances, the observation that the best is the enemy of the good comes to mind. Id. Given that Dressler ultimately recommends that law reformers distinguish between substantial and insubstantial accomplices rather than between causal and noncausal accomplices, the remainder of this essay focuses on the substantial vs. insubstantial accomplice distinction. Like Dressler, I am skeptical that law reform based on distinguishing between causal and non-causal accomplices will prove to be workable.
15. 16. 17. 18.

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simply be intolerable to do away with proximate causation principles, for a criminal law based solely on but-for causation would absurdly expand the scope of criminal liability. Without proximate cause principles, for example, the parents of the perpetrator of a homicide would be liable for the homicide committed by their child, for the death of the victim would not have taken place but-for the parents decision to have the child that eventually ended up committing the homicide. Holding parents liable for the crimes committed by their children is not only unjust, but also absurd. Therefore, it is essential that the law create an additional level of causal inquiry that discriminates between causal contributions that are relevant to the criminal law and causal contributions that are irrelevant. This is precisely the objective of the doctrine of proximate causation.19 Given that a criminal law without proximate causation will generate unfair, intolerable, and absurd results, we must accept whatever imprecision results as a consequence of this doctrine as a necessary evil. In contrast, a criminal law that fails to distinguish between substantial and insubstantial participation is tolerable. Perhaps such a criminal law is somewhat unfair because it paints the doctrine of participation with too broad a brush, but it surely is not absurd or arbitrary. As a matter of fact, many of the worlds jurisdictions fail to distinguish between different degrees of complicity.20 This, of course, does not justify the failure to distinguish between substantial and insubstantial complicity. But it does debunk the idea that we should tolerate the imprecision inherent in distinguishing substantial from insubstantial complicity because we tolerate the vagaries inherent in the doctrine of proximate causation. Some principles of proximate causation are essential to any non-arbitrary system of criminal justice. In contrast, distinguishing between substantial and insubstantial participation is not essential to a non-arbitrary criminal law. In sum, contrary to what Dressler suggests, the vagaries inherent in drawing lines between substantial and insubstantial participants should not be tolerated solely because we tolerate ambiguities in other doctrines of criminal law.21 As a result, the additional imprecisions that are created by distinguishing substantial from insubstantial contributions to crime should be tolerated only if they can be minimized to acceptable levels. Fortunately, such imprecisions can in fact be reduced to tolerable levels. I am confident that this can be done because civil law jurisdictions have for

Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928). See Marina Aksenova, Complicity in International Criminal Law: A Case for Clarification (Apr. 20, 2012) (unpublished PhD dissertation, European University Institute), available at http://law.MC.edu/files/3313/3397/7796/Aksenova.pdf. 21. Joshua Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem, 37 HASTINGS L.J. 91, 124 (1985).

19. 20.

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decades distinguished between substantial and insubstantial contributions.22 Consequently, they have developed standards that aid the fact finder in making such distinctions.23 In the remainder of this brief essay, I explore the ways in which European Continental jurisdictions have distinguished substantial from insubstantial complicity in an effort to develop standards that may help infuse much-needed precision into the vague offense of trivial assistance that Dressler encouraged American legislatures to adopt. This project is important for a couple of reasons. First, having a more developed sense of what should be punished as trivial vis-a-vis substantial assistance may make Dresslers proposal more attractive to law reformers. This would be a salutary development, as Dressler is surely right that it is unfair for American law to fail to systematically distinguish between substantial and insubstantial contributions to crime.24 Second, the United States Sentencing Guidelines provide a downwards adjustment in offense level if the defendant is a minimal25 or minor26 participant in the offense.27 Alas, the standard proposed by the Guidelines to discriminate between minimal or minor participants and substantial participants is excessively vague. As a result, judges applying the Guidelines have little guidance when determining whether a downward adjustment for minimal participation is warranted. By providing concrete standards for discriminating between minimal and substantial participants, this essay seeks to help federal judges make downward adjustments for minor participation in a more principled manner. The essay is comprised of five parts. Part II presents a brief overview of how civil law jurisdictions distinguish between substantial participation that is punished as severely as perpetration and insubstantial complicity, which is punished considerably less than perpetration. Part III discusses an influential theory advanced by one of Spains leading criminal theorists that posits that the scarcity of the good or service provided by the accomplice is relevant to determining whether his assistance is substantial or insubstantial. Part IV proposes a framework for differentiating between substantial and insubstantial complicity in cases in which the assistance provided by the accessory is neither a good nor a service. It also briefly discusses the thorny problem of complicity by omission and how to distinguish between omissions that substantially facilitate the perpetration of the
Id. Id. Id. U.S. SENTENCING GUIDELINES MANUAL 3B1.2(a) (2007) (reducing offense level in the case of a minimal participant by four offense levels). 26. Id. 3B1.2(b) (reducing offense level in the case of a minor participant by two offense levels). 27. Id. 3B1.2.
22. 23. 24. 25.

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offense and omissions that do not. A brief conclusion follows. II. DISTINGUISHING SUBSTANTIAL FROM TRIVIAL COMPLICITY: THE CIVIL LAW EXPERIENCE Complicity law in most European continental jurisdictions distinguishes between essential and non-essential (i.e. trivial) complicity. Essential accomplices provide assistance to the perpetrator that is necessary to the commission of the offense.28 That is, the nature of the essential accomplices contribution is such that the perpetrator would not be able to commit the offense without the essential accomplices help.29 In contrast, nonessential or trivial accomplices are those that contribute to the commission of the offense by assisting the perpetrator with acts that are not necessary or essential to committing the offense. Since the assistance provided by the trivial accomplice is considered insubstantial, in many civil law jurisdictions trivial accomplices are punished less severely than perpetrators. This makes sense because a person who contributes with an act that is not necessary for the commission of the crime is not as dangerous or does not deserve the same punishment as the perpetrator. A person who provides the match used to light a building on fire (trivial accomplice) is not as deserving of punishment and is not as dangerous as the one that actually lights the building on fire (perpetrator). In contrast, essential accomplices are punished as severely as perpetrators.30 In such cases, it is believed that there are no compelling retributive or deterrence based reasons that justify punishing the essential accomplice less severely than the actual perpetrator.31 A person who contributes to a criminal offense by way of an act without which the crime could not be committed (essential accomplice) is as dangerous or deserving of punishment as a person who actually commits the crime.32 Accordingly, the punitive framework that applies in cases of essential complicity is the same as the one that applies to cases of true perpetration.33 A. The Problem of Distinguishing Essential Complicity from Trivial Complicity Generally speaking, a person is an essential accomplice if he contributes to the commission of the crime by engaging in an act that is necessary for

28. 29. 30. 31. 32. 33.

Dressler, supra note 1, at 431. Id. Id. at 436. Id. See id. at 436-37. See id.

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the consummation of the offense.34 If, on the contrary, the actor contributes to the crime through an act that is not necessary for the consummation of the offense, then the conduct is punishable as trivial complicity.35 Trivial accomplices are often defined in negative terms. A trivial accomplice is thus frequently defined as someone whose contribution cannot be classified as perpetration, instigation or essential complicity.36 The chief problem in this context is determining when the persons act is necessary for the consummation of the crime and when it is not. The issue is of significant importance, foras was pointed out in the previous subsectionin civil law jurisdictions, trivial accomplices are often punished considerably less than essential accomplices.37 According to the 2004 Puerto Rico Penal Code, for example, trivial complicity is punished by half the term of imprisonment that would apply to perpetrators, up to a maximum of ten years.38 As a result, the difference in the punishment that could be imposed on essential and trivial accomplices can sometimes be significant. In murder cases tried under the 2004 Puerto Rico Penal Code, for example, an essential accomplice may be punished to a maximum of ninety-nine years in prison, while a trivial accomplice may be punished to a maximum of ten years in prison.39 Due to the dramatically different way in which essential and trivial accomplices are punished, courts and commentators in civil law jurisdictions have devoted considerable attention to developing criteria that may be invoked to distinguish between these two types of complicity.40 The most obvious way of distinguishing between substantial and insubstantial complicity is by focusing on whether the contribution of the accomplice is necessary for the consummation of the offense. More specifically, an essential accomplice may be defined as an actor who contributes to a crime through an act without which the offense could not have been committed.41 The problem with this definition is that it only shifts our attention to a different (and equally problematic) inquiry. Even if acts that are necessary or essential for the consummation of the crime are defined as those without which the crime could not have been committed, the truly important question still remains unanswered: how should we determine if an act is essential, necessary, or of such a nature that without it the crime
Id. at 429. Id. at 431. FRANCISCO MUOZ CONDE & MERCEDES GARCIA ARAN, DERECHO PENAL PARTE GENERAL 444 (8th ed. 2010). 37. Dressler, supra note 1, at 433. 38. P.R. LAWS ANN. tit. 33, 4664 (2004). 39. Id. 40. Francis Bowes Sayre, Criminal Responsibility for the Acts of Another, 43 HARV. L. REV. 689, 695 (1930). 41. Dressler, supra note 1, at 429.
34. 35. 36.

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could not have been committed?42 No matter how the question is asked, the essence of the inquiry is the same: when should an act be classified as essential to the commission of a crime? Unfortunately, defining an essential act as one that is necessary for the commission of the offense amounts to begging the question and therefore does not solve the problem. B. Distinguishing Essential from Trivial Complicity 1. Necessary Cooperation as Conduct that Significantly Increases the Probability that the Crime Will be Successfully Consummated One way to determine if an act is necessary for the consummation of a crime is to ask whether the perpetrator would have obtained the accomplices contribution from another source.43 If the question is answered affirmatively, it can be concluded that the complicity was not essential since the accomplices contribution should not be classified as necessary when it could have been obtained by other means.44 Nevertheless, if the question is answered negatively, it can be argued that the cooperation was necessary since it seems wise to conclude that the accomplices contribution is necessary if it could not have been obtained by other means. The following example illustrates this approach:
John asks Samantha for $100,000 to buy a machine that makes counterfeit bills. John is unemployed so he does not have the capacity to generate sufficient income to buy the machine. Samantha lends John the money. John buys the machine with the money Samantha loans him and begins to make counterfeit bills. Was Samanthas conduct necessary for the consummation of the crime?

One way of determining whether Samanthas contribution (loaning John $100,000) was essential for the consummation of the offense of counterfeiting dollar bills is asking if John would have been able to obtain what he got from Samantha ($100,000) in another way. If the answer is no, the conclusion should be that Samanthas cooperation was necessary for the consummation of the crime. On the other hand, if the answer is yes, it can be concluded that Samanthas cooperation was not necessary for the consummation of the offense. At first glance, in this example, it seems that John would not have been able to get what he obtained from Samantha in another way since he was unemployed and did not have the capacity to generate income. Therefore, it is sensible to conclude that the help given by SamanHereinafter, the terms essential and necessary will be used indistinctly. Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 CALIF. L. REV. 323, 335 (1985). 44. Id. at 337.
42. 43.

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tha was essential for the consummation of the crime. The example gets complicated if the following fact is added to the hypothetical situation: John bets on horses various times per week, hoping to win a one million dollar prize. In light of this new fact, can it still be argued that Samanthas help was essential for the consummation of the criminal offense? Now the answer to the question is unclear, for it can be argued that John could have obtained the money another wayby winning the prize money. Does this mean that, in light of Johns gambling habits, Samanthas help should not be considered essential for the consummation of the crime? I do not believe so. Even though it is possible for John to obtain the money otherwisein this case by winning the prize moneyit seems highly improbable that this would occur. The hypothetical question posed at the beginning of this section must thus be modified to account for these highly improbable scenarios. The question should not be whether the subject could have obtained what he got from the accomplice otherwise, but rather whether the accomplices contribution significantly increased the probability that the crime would be consummated successfully. If the answer is that the accomplices contribution significantly increased the probability that the crime would be consummated successfully, it should be concluded that the accomplices help was essential. On the other hand, if the conclusion is that the accomplices contribution did not significantly increase the probability that the crime would be consummated, it should be concluded that the help provided was not essential. Once the hypothetical question is asked this way, it is easier to see why Samanthas loan was essential for John to commit the crime. While it may be true that John could have obtained the sum by winning the prize money, it is also true that obtaining this amount in that manner (or in any other manner) is highly improbable. Consequently, if John did not receive the loan, the commission of the crime would have been improbable. Therefore, it should be concluded that loaning John the money is an act of essential, rather than trivial, complicity. It is an act that significantly facilitates the commission of the crime and thus amounts to providing a contribution that is necessary for the commission of the criminal offense. According to this approach, the arguments in favor of concluding that a contribution constitutes essential complicity become more powerful the more that the act increases the perpetrators probabilities of successfully consummating the crime. For example, in Johns case the $100,000 significantly increases his probabilities of successfully carrying out the crime, for it eliminates an obstacle that makes the consummation of the crime improbable, namely the lack of financial resources to purchase the counterfeiting machine. Nevertheless, the arguments in favor of concluding that the accomplices contribution constitutes essential cooperation are weak if the accomplices assistance fails to significantly increase the perpetrators

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probability of successfully consummating the crime. Thus, for example, a person who lends a telephone to an extortionist who then uses it to call his victim is not an essential accomplice. Neither is a taxi driver in Manhattan who takes a person to a restaurant where he intends to kill his wife. The help provided in both of these caseslending a telephone and transporting a person in a taxisimply eliminates obstacles that could have been easily overcome by the actors. In the first case, the obstacle could have been overcome by using a payphone, while in the second case the obstacle could have been overcome by taking one of the many other taxis available in Manhattan. Therefore, it does not make sense to argue that in either of these cases the contributions provided by the accomplice significantly increased the probabilities of the perpetrator successfully consummating the crime. III. THE RELEVANCE OF THE SCARCITY OF THE GOOD OR SERVICE PROVIDED One way to determine whether the accomplices help significantly increased the probability of the successful consummation of the crime is to examine the scarcity of the good or service provided by the accomplice.45 As a general rule, obtaining a scarce good or service that is needed to carry out the crime significantly increases the probability of consummating the offense because it removes a serious obstacle.46 For example, obtaining $100,000 (a scarce good) is a greater obstacle to the commission of a crime than obtaining a mobile phone (an abundant good). This is why the Spanish criminal law theorist, Enrique Gimbernat Ordeig, famously proposed what he called the theory of the scarcity of goods as a way to distinguish between essential and trivial complicity.47 According to Gimbernat, contributions that consist of providing a scarce good or service to the perpetrator should be considered essential complicity.48 Conversely, help that consists of offering an abundant good or service should be considered trivial complicity.49 Gimbernat also points out that determinations of scarcity should be made according to the concrete circumstances of the author and by taking into consideration the time and place in which the accomplices contribution takes place.50 This is an important insight, since what is abundant in a cer45. (2006). 46. 47. 48. 49. 50.

ENRIQUE GIMBERNAT ORDEIG, AUTOR Y CMPLICE EN DERECHO PENAL 127-28 Id. Id. Id. at 130. Id. Id. at 133.

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tain place and time can be scarce at another time and place. Certainly, a mobile telephone is abundant in New York, while it is likely scarce in a small town in rural Cuba. Therefore, offering a mobile telephone in the first case amounts to providing an abundant good and should thus be classified as essential complicity. On the other hand, offering a mobile phone in the second case amounts to providing a scarce good and should thus be considered essential cooperation. The reason for the distinction is obvious. Offering a cell phone in New York does not remove an obstacle that would make the commission of the crime less likely (e.g. using the cell phone to call someone who is waiting to receive orders to carry out a crime), while offering the same good in rural Cuba does eliminate an obstacle that would make the commission of the crime improbable. Even though the theory of the scarcity of goods offers a test that helps determine when an accomplices assistance should be considered essential because it increases the probability of successfully completing the crime, this theory is not helpful in some cases. The following example illustrates the problem:
Knowing Carinas intentions to poison Pamela by putting cyanide in her coffee, Christian, one of Pamelas enemies, gives Carina a gun in case you prefer to kill her by shooting her. Carina thanks him by saying that she originally thought about shooting her, but I did not have access to fire arms. . . . Cyanide, on the other hand, was easy to find over the Internet.51 Carina killed Pamela with the gun.

This is a hard case since the facts demonstrate that it is likely that Carina would have killed Pamela with or without Christians help. Therefore, it can be argued that Christians help did not constitute essential complicity, since it is hard to classify his act (providing a gun) as one without which the criminal offense could not have been committed. Nonetheless, focusing on the scarcity of the good provided suggests that the act should be considered necessary for the commission of the crime since the gun constituted a scarce good for Carina. Nevertheless, I believe that Christians contribution should be classified as trivial cooperation. In light of the particular facts of this case, Pamelas death at the hands of Carina was likely ex ante, regardless of Christians help. Though it can be argued that a gun is substantially more effective to produce a victims death than other types of artifacts (knives, bats, cooking pans, etc.), it is difficult to argue that a gun is more effective than cyanide to cause death.52 Consequently, it would not seem to be the case that Chris51. See Dr. Sanjay Gupta, Cyanide Poison Hard to Detect, CNN (Jan. 10, 2003), http://www.cnn.com/2003/US/South/01/10/otsc.gupta.cyanide/ (surprisingly, cyanide is very easy to obtain through the Internet). 52. Cyanide is one of the most effective poisons that can produce death. With a proper

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tians help significantly increased the probability that Carina would kill Pamela. This example demonstrates that, while focusing on the scarcity of the good or service provided is a good starting point for determining whether complicity should be considered essential or trivial, there are instances in which it is preferable to appeal to other facts to determine whether the accomplices act was essential or not. The above mentioned example shows that there are cases in which offering a scarce good does not significantly increase the probability that the crime will be consummated. When this occurs, it is wise to conclude that the accomplices help was not essential, even if the good or service that was offered was scarce. IV. BEYOND THE SCARCITY OF GOODS AND SERVICES: A CONCRETE PROPOSAL TO DETERMINE WHETHER COMPLICITY IS SUBSTANTIAL OR TRIVIAL For the reasons explained in the previous section, I believe that the scarcity of the good or the service provided by the accomplice is an important, albeit not decisive, factor in determining whether the accomplices assistance should be classified as essential or trivial.53 There is no magic formula that can be invoked to distinguish between essential and trivial acts of complicity in a non-arbitrary manner. Nonetheless, there are five types of cases that are worth discussing in more detail: (1) Cases in which the accomplices contribution consists of facilitating a means to commit the crime that is different from the one that the perpetrator planned to use before he received the accomplices help; (2) Cases in which the accomplices contribution consists of an act that is designed to decrease the likelihood that the crime will be thwarted or detected by the police or third parties; (3) Cases in which the perpetrators help consists of providing the perpetrator with moral support;

dose, death can be caused in three minutes. The effectiveness of a firearm is well known. Nevertheless, it is important to point out that the use of a firearm to cause anothers death is more conspicuous than the use of poison, which is odorless and colorless. Therefore, it is more probable that a firearm will generate a defensive reaction from the victim than the use of cyanide dissolved in coffee. Considering that the defensive reaction from the victim reduces the probability that the homicide would be consummated, it could be argued that the use of cyanide is more effective than the use of a gun to kill another. In any case, it seems reasonable to sustain that a firearm and a sufficient dose of cyanide are comparable in lethal effectiveness. Id. 53. See id.

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(4) Cases in which the accomplice provides a good or a service under circumstances that do not fit the situations in subsections (1), (2), or (3); and (5) Cases in which the accomplices help consists of failing to do something that, if done, would have made it more difficult for the perpetrator to consummate the offense.54 In all of these cases, the accomplices contribution amounts to an act. The fifth case will be discussed in the next subsection because it presents unique challenges, given that the accomplices contribution in such cases consists of an omission.55 In the first case the accomplices act consists of facilitating a means to commit the crime.56 In such instances, the accomplices act should be considered essential only when the means that he provided significantly increase the probability that the crime will be successfully completed when compared to the means that the perpetrator planned to use before receiving the accomplices help.57 In other words, the effectiveness of the means that the perpetrator originally planned to employ to commit the crime should be compared to the means provided by the accomplice for the commission of the crime. If the means provided by the accomplice were substantially more effective than the means that the perpetrator planned to use before receiving the accomplices help, the reasonable conclusion would be to classify the assistance as essential complicity, regardless of the scarcity of the good provided. For example, if the perpetrators plan was to poison the victim by dissolving great quantities of Benadryl in his coffee, providing cyanide should be considered an essential contribution if the perpetrator poisons the victim with it. Since cyanide is much more lethal than Benadryl, giving the perpetrator cyanide significantly increases the probability of consummating the murder.58 Therefore, the accomplices help should be classified as essential even though, as in this case, cyanide is easy to obtain and cannot be considered a scarce good.

See generally supra Part III. PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 493 (R.A. Duff & Stuart P. Green eds., 2011). 56. Id. at 427-28. 57. See R.A. Duff, Is Accomplice Liability Superfluous?, 156 U. PA. L. REV. PENNUMBRA 444, 444-45 (2008). Therefore, if the means that the author intended to use before communicating with the cooperator is a gun and the good provided by the cooperator is also a gun, the case cannot be considered an example of the first type of cases since the means provided is not different from the one the author thought of using beforehand. The case should instead be analyzed under the fourth group. 58. See Michael S. Moore, Causing, Aiding, and the Superfluity of Accomplice Liability, 156 U. PA. L. REV. 395, 432-33 (2007).

54. 55.

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Regarding the second group of cases, I believe that when the contribution consists of an act that is designed to decrease the likelihood that the crime will be thwarted or detected, the contribution should be considered essential if it significantly decreased the probability that the crime would be detected or frustrated by the victim or a third party. This can be determined by comparing how the perpetrator originally planned to commit the offense with how the perpetrator will be able to commit the offense once he receives the accomplices help.59 I believe that the scarcity of the good or service provided is not dispositive in these cases. Suppose, for example, that Lara intends to kill Lorenzo in an office building late at night to minimize the probability of being detected by third parties. Also imagine that Michael contributes to the commission of the crime by providing Lara with a firearm silencer since, even though it is improbable that someone would be lurking around the building in those hours, one can never be sure. Does Michaels help constitute essential or trivial complicity? According to the test proposed in this section, I believe Michaels help should be considered trivial complicity. It is difficult to argue that providing the gun silencer significantly decreased the probabilities that the crime would be detected in this case, given that the perpetrators original plan was to commit the crime in an abandoned area at a time when it would be improbable that people would be around to hear the gunshots. Whether the silencer is a scarce or abundant good should thus be considered irrelevant in this case. The third group of cases refers to situations in which the help provided by the accomplice consists of morally supporting the perpetrators commission of the offense.60 In these cases, the actor communicates in some way his approval of the criminal act to the perpetrator. The famous case of Wilcox v. Jeffery illustrates this problem.61 In Wilcox, the defendant bought a ticket to a jazz concert knowing that the show was illegal because the musician had not obtained the required licenses from the British government.62 It was demonstrated that the defendant, along with others, applauded the musician on various occasions during the concert.63 The defendant was charged with complicity in the illegal concert given by the musician.64 In this case, the help provided by the accused to the perpetrator consisted solely of morally supporting his course of action by purchasing a ticket for the concert, attending the concert, and applauding during the show.65
59. See Jacob Kreutzer, Note, Causation and Repentance: Reexamining Complicity in Light of Attempts Doctrine, 3 N.Y.U. J.L. & L. 155, 185-92 (2008). 60. See Wilcox v. Jeffery, (1951) 1 All E.R. 464 (Eng.). 61. Id. 62. Id. at 465. 63. Id. at 466. 64. Id. at 465. 65. Id. at 466.

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The first thing that should be noted is that focusing on the scarcity of the good or service provided does not help to determine whether the accomplices assistance is essential or trivial, for the accomplices conduct does not consist of providing the perpetrator with a good or service. Rather, the accomplices contribution consists of providing moral support to the perpetrator.66 If the perpetrator was set on committing the crime before he receives the accomplices moral support, it is difficult to argue that the crime would not have been committed but for the accomplices help. Therefore, such cases should be punished as insubstantial complicity. This is the best way of thinking about the accomplices contribution in Wilcox. The perpetrator was determined to hold the concert regardless of whether the defendant attended the show or not.67 As a result, the accomplices moral support should be considered non-essential to the commission of the offense. On the other hand, if the perpetrator was not set on committing the crime before receiving the accomplices moral support, but later decided to commit the crime precisely because of the moral support he receives, then providing such moral support should be punished as severely as perpetration. In sum, a person who helps by providing moral support should be punished as much as the perpetrator if the moral support causes the perpetrator to decide to commit the crime. However, the actor should be considered a trivial accomplice if his help did not cause the perpetrator to decide to commit the crime. The last group of acts that generate accomplice liability comprise a residual category that extends to any case of contribution to a crime that is accomplished by providing a good or a service that cannot be resolved by appealing to any of the previously elaborated rules.68 It is in these cases that the decision regarding whether to classify such contributions as substantial or insubstantial complicity should depend on the scarcity or abundance of the good or service provided. If the good or service provided by the accomplice in these cases is abundant, it is sensible to conclude that the complicity was trivial. If, however, the good or service provided by the accomplice is scarce, the assistance should be considered essential complicity. A. Essential Complicity by Omission? Sometimes an accomplice contributes to the commission of a criminal act by failing to do something that may have prevented the consummation of the offense. In these cases, the accomplices assistance consists of not doing something that, if done, would have presented the perpetrator with an
66. 67. 68.

Dressler, supra note 1, at 431-38. Id. Id. at 442-47.

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obstacle for the consummation of the offense. The following examples illustrate cases of complicity by omission:
(1) A mother passively observes as her daughter is assaulted by a friend. The mother does not try to prevent the aggression upon her daughter even though she could have done something to avoid it. (2) A policeman observes an individual about to shoot another and does nothing to prevent it, even though he could have. (3) A private security guard is in charge of making sure a dangerous patient from a mental ward does not escape and hurt others. While the guard is escorting the patient to a different hospital building, the patient escapes because the guard did not take proper measures to control him. The patient injures a visitor while the guard looks on without trying to prevent the aggression.

In these three cases, the person that fails to prevent the crime had a legal obligation to keep the victim free from harm.69 The legal duty in the first example stems from the close family relationship that exists between the defendant (mother) and the victim (daughter).70 The legal obligation in the second case arises from the duty that police officers have to protect citizens from the criminal acts of others.71 The legal obligation in the third case stems from the employment contract that requires the private guard to assume the duty to prevent patients from harming others.72 If we assume that in each case the defendant had knowledge of his or her obligation and knew that his or her omission would in some way facilitate the consummation of a crime, there are no legal obstacles to treating all three defendants as accomplices to the perpetrators crime.73 A more difficult problem arises when determining whether the actor who is considered an accomplice by omission should be considered a nonessential or essential accomplice. Unfortunately, the four categories discussed in the previous section do not solve the problem since these categories assume that the accomplices help consists in an affirmative action. Focusing on the scarcity of the good or service provided does not resolve the problem either since the omission in this type of case does not amount to providing a good or a service. Therefore, a different approach is needed in order to adequately distinguish between essential and insubstantial complicity when the help provided by the accomplice amounts to an omission. It is important in these types of cases to distinguish between omissions that
69. 70. 71. 72. 73.

See GIMBERNAT, supra note 45, at 127-33. See id. See id. See id. See id.

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constitute a breach of an obligation to protect the interests of a particular individual and omissions that suppose the breach of an obligation to control the conduct of a particular individual. The distinction between the obligation to protect and the obligation to control is important in the context of American tort law.74 When the obligation of the actor consists of preventing harm to a particular person, there is a duty to protect.75 The paradigmatic case is that of a mother and her son, since it is within the mothers obligations to take reasonable measures to prevent harm to her son.76 Another example of a duty to protect is a bodyguards obligation to prevent harm to the person who hired him. In contrast, a duty to control is the obligation to prevent a person with dangerous propensities from harming others.77 According to the Restatement (Second) of Torts, one who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.78 The typical case is that of a person in charge of a patient in a mental ward or a person in charge of prisoners in a jail. The obligation in these cases is not to protect a particular person from harm, but rather to prevent a particular person from hurting another. That is why it is said that the obligation is not to protect, but to control. The distinction is important because the level of control over the criminal conduct that the person who fails to act has in these two types of cases varies considerably.79 More specifically, the actors level of control when he has a duty to protect the victim is minimal.80 These are situations in which the actor is not in control of the perpetrator and it is thus difficult to argue that the actor contributes to originating the situation that puts the victim at risk of suffering harm. Therefore, the help provided by the actor in these cases does not assist in creating the danger to the victim, but rather in failing to become an obstacle to the criminal conduct of another. In contrast, the actors level of duty in cases in which the perpetrator should have been controlled by the actor is significantly more than when the actors duty is merely to protect the victim from harm.81 As was mentioned before, an actor has an obligation to control a perpetrator when he
74. See John Fabian Witt, The Long History of State Constitutions and American Tort Law, 36 RUTGERS L.J. 1159, 1163-65 (2005). 75. See, e.g., RESTATEMENT (SECOND) OF TORTS 323, 324 (1965). 76. See id. 77. Id. 315. 78. Id. 319. 79. McNamara v. Honeyman, 546 N.E.2d 139, 146-47 (Mass. 1989). 80. See id. 81. Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343, 353 (Cal. 1976) (concluding therapists failure to warn victim was not subject to immunity).

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has accepted the responsibility to prevent the perpetrator from harming others.82 Therefore, the danger to which the victim is exposed in this type of case originates not only in the perpetrators unlawful behavior, but also in the breach of the accomplices obligation to control the perpetrators conduct. Consequently, the actors complicity in these cases consists not only of failing to become an obstacle to the commission of the offense by the perpetrator, but also of contributing to originating the danger by failing to properly supervise the dangerous individual that ended up harming the victim. Ultimately, the actor who has an obligation to control has more influence over the harmful course of conduct than the one who has an obligation to protect since the actor with an obligation to control is responsible for both the failure to prevent harm to the victim and to adequately supervise the person who committed the crime.83 Given that the actor who has a duty to protect the victim has a minimal degree of control over the perpetrators conduct, he should be classified as an insubstantial accomplice.84 In these cases, it is likely that the crime would have been committed regardless of the accomplices failure to act since the danger to the victim is solely created by the perpetrators conduct, and it is not clear whether the actor could have prevented the consummation of the crime after the perpetrator becomes intent on committing the offense. Therefore, it seems that both the mother in the first case previously discussed and the policeman in the second are non-essential accomplices of the crimes committed by the perpetrators, given that they had an obligation to protect the victims, but did not have an obligation to control the conduct of the perpetrators. In contrast, given that the actor who controls the conduct of the perpetrator has more control over perpetrators course of conduct, he can be considered an essential accomplice.85 In these cases, the actor contributes to the creation of the danger, and it is therefore sensible to conclude that the perpetrator would not have committed the crime if the accomplice had not breached his obligation to control and supervise the conduct of the perpetrator.86 In other words, it is likely that if the accomplice did not let the perpetrator escape, the perpetrator would not have harmed the victim. Consequently, it can be argued that the accomplices contribution in this type of case is essential and necessary for the consummation of the crime.
RESTATEMENT (SECOND) OF TORTS 319 (1965). See Tarasoff, 551 P.2d at 345-46. United States v. Cuavero, 530 F.2d 666 (5th Cir. 1976); see also Ben Ziggy Williamson, The Gunslinger to the Ivory Tower Came: Should Universities Have a Duty to Prevent Rampage Killings?, 60 FLA. L. REV. 895, 910 (2008). 85. See Tarasoff, 551 P.2d at 358. 86. Id. at 342-43 (A hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons.).
82. 83. 84.

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However, a person who becomes an accomplice to a crime by an omission that constitutes the breach of an obligation to control should only be considered an essential accomplice if three additional criteria are satisfied: (1) the actor must be aware that the perpetrator escaped from his control; (2) the actor must be aware that the perpetrator had the intent to harm a particular victim; and (3) the actor had the capacity to prevent the consummation of the crime.87 If these requirements are satisfied, there are good reasons to conclude that the perpetrators conduct may be properly attributed to the accomplice and, therefore, the accomplice deserves to be punished as severely as the perpetrator. It seems that these requirements are met in the third example previously discussed. As a result, the private guard should be considered an essential accomplice to the crime committed by the patient.88 V. CONCLUSION Professor Dressler argued that a rational system of criminal law ought to distinguish between substantial and insubstantial participants to crime.89 He is right. Nevertheless, contrary to what Dressler suggested, the law also should attempt to put forth concrete criteria for distinguishing between essential and non-essential accomplices. Vague formulations will not do. As a result, this essay distinguishes between five different kinds of participation to crime and proposes specific standards to determine when such participations should be considered essential complicity and when such contributions should be deemed insubstantial participation. Such criteria are useful for at least two reasons. First, it is more likely that law reformers will take seriously the proposal to distinguish between trivial and essential accomplices if concrete standards are proposed to help the trier of fact make the necessary distinctions between participants. Second, specific standards that help distinguish between different degrees of participation will likely help judges who are tasked with assessing whether a downward departure for minor participation is warranted under the Federal Sentencing Guidelines (or similar state sentencing schemes).90

87. See generally Jablonski v. United States, 712 F.2d 391, 397 (9th Cir. 1983); RESTATEMENT (SECOND) OF TORTS 281 (1965). 88. See RESTATEMENT (SECOND) OF TORTS 319 (1965). Of course, the patient could not be held responsible due to mental incapacity. Nevertheless, in light of the fact that mental incapacity constitutes an exculpatory excuse that does not eliminate the illegal nature of the authors conduct, the committer can be considered a cooperator to the patients illegal conduct despite the fact that he could not be punished due to his mental incapacity. See id. 89. Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense, 5 OHIO ST. J. CRIM. L. 427, 448 (2008). 90. See generally U.S. SENTENCING GUIDELINES MANUAL (2013).