Causation and Repentance: Reexamining Complicity in Light of Attempts Doctrine
The doctrines governing complicity, attempts, and results-based crimes all employ very different causation requirements. A defendant can never be held liable for murder unless his actions caused the death of the victim. Nor can he be convicted of an incomplete attempt to murder unless it is likely that he would have murdered the victim but for timely intervention by a police officer. But in the case of an accused accomplice, causation is almost irrelevant. This Note will examine the reasons for this disparate treatment, and ultimately argue that accomplice law should be modified so as to be more closely in line with the current state of attempts law.
Attempts law and accomplice law are both concerned with the same problem: how should criminal liability be determined for behavior that may not have caused any actual harm, but which is nevertheless socially undesirable? In an incomplete attempt, the defendant has not committed the substantive crime for which he is punished. Under accomplice law, the defendant is punished for his effect on another person’s behavior. Determining the appropriate punishment in accomplice and attempts cases requires the jury to resolve much more difficult counterfactual scenarios than are present in the typical criminal case. This unique problem creates the need for specialized bodies of law. What is striking is that the two bodies of law that deal with this problem have set quite different thresholds for liability.
