It is widely accepted that accomplices to crime are to be judged and punished as if they had actually performed the acts that constitute the offense committed by the perpetrator. Those who render even minor encouragement or trivial assistance to a perpetrator may be punished to the same degree as the perpetrator. Therefore, accomplice accountability deviates from the traditional rules of criminal liability. This Article reviews the history of accomplice liability law, demonstrates its inconsistency with the traditional role of causation in criminal law, and discusses utilitarian and moral criticisms of suggested rationales for that inconsistency. The Article then suggests three tests for determining the criminal liability and punishment of accomplices: the "substantial participation" test, the "control or hegemony" test, and the "causation" test. After providing examples of how the more theoretically coherent causation test would be applied in typical crimes and in death penalty cases, the Article proposes alternative versions of specific statutory language governing criminal liability for the conduct of others.
Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem,
37 Hastings L.J. 91
Available at: https://repository.uchastings.edu/hastings_law_journal/vol37/iss1/2