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The concept of accomplice liability and its application to reckless endangerment cases. the historical background of the distinction between principals and accessories, the various means of communicating approval or encouragement, and the implications of reckless complicity. It also proposes the creation of a general prohibition of reckless conduct to address the challenges posed by reckless aiders of reckless actors.
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648 Southern Illinois University Law Journal [Vol. 34
elements of the proposed statute will be considered in Part III A(5). Part IV
provides the definition of the proposed offense, together with a brief
explanation of each of the elements that have been chosen to constitute its
definition. A final consideration of how the proposed statute might be applied
to the four illustrative cases is also provided.
I. ILLUSTRATIVE INSTANCES
“Shoot me. I’m ready.” These were the last words of twenty year-old
Daniel Wright, who put on what he mistakenly thought was a bulletproof vest
so that he could have the experience of being shot before he joined the
military. His friends gathered at a deserted field at 2:30 in the morning. Just
as Wright instructed, one of the friends fired a shotgun into his chest at point
blank range. It turns out, unknown to Wright and his buddies, that body armor
comes in several different grades, among them the “flack jacket” which is
designed to stop flying shrapnel and such things, not bullets. It was such a
jacket that Wright wore that night, not a “bulletproof vest,” and the shotgun
blast tore fatally into his chest and heart.^1
Twenty-two year-old Jason Welch was not a saint, but he was well
intentioned. Welch, a guest at what the newspapers called a “marijuana-
fueled party” attended by a number of young people in a thirty-unit apartment
house, noticed that someone had tucked a nine millimeter Ruger
semiautomatic pistol under his host’s living room sofa. Recognizing the
danger that such an instrument represented in the midst of such revelry, Welch
took it upon himself to empty the weapon.
Although he had had no formal weapons training, he confidently applied
the lessons he had learned from watching television shows and movies and
ejected the ammunition clip and “racked the slide.” What he apparently did
not realize is that there is a proper sequence in which the operation has to be
performed, with the ammunition clip being removed first and then “racking
the slide” to clear the chamber. Performing these acts in the wrong sequence
by moving the slide first simply replaces the bullet ejected from the chamber
with another stored in the clip. Ejecting the clip afterwards does not remove
the bullet now loaded in the firing chamber. Welch apparently performed the
operations in the wrong order and when he pulled the trigger to finish the job
on what he thought was now an empty gun, it fired.
650 Southern Illinois University Law Journal [Vol. 34
friends who partied with Dan Wright, the person who concealed the gun found
by Jason Welch, the parents who allowed Josh Paniccia to continue to drive
(and the friend who rode with him), and Amilcar Valladares’s competitor to
both society and the law?
These four cases were randomly stumbled upon during the spring and
early summer of 2005. Doubtless there are scores of other similar cases which
happen all the time, but these cases present the inquiry of this article: what is
the best response to the problem of those who recklessly encourage or enable
reckless wrongdoing by others?
Three responses immediately come to mind. First, the law might use the
doctrine of complicity to hold such persons accountable for the acts of the
principal. Second, the principles of causation could be used to hold the
encouragers and aiders directly and personally responsible for the harms
ultimately produced. Both of these strategies seem initially attractive, but
both are ultimately unsatisfactory. A third possibility, the offense of Reckless
Endangerment pioneered by the Model Penal Code, could be employed, but^6
it is not entirely suitable as it does not mark a proper fit between the wrong
done and the punishment imposed.
A. Complicity
The cases illustrated above demonstrate a sort of compound negligence
where one person’s carelessness assists another’s imprudence. Complicity,
or accomplice liability, therefore seems to be an obvious place at which to
begin. Complicity deals with “the circumstances under which a person who
does not personally commit a proscribed harm may be held accountable for the
conduct of another.” 7 The “doer of the deed” (the actual perpetrator) is not the
only person criminally liable for the offense. Those who aided or encouraged
him may also be held liable for the crime committed.
The common law devised various categories of participants in crime.
For felonies, the principal in the first degree was the primary actor, the one^8
2010] Dumb and Dumber: Reckless Encouragement 651
who had done the criminal deed, and all others who criminally aided or
assisted him derived their liability from him. Aid or assistance could take 9
many forms, such as soliciting or ordering the commission of the crime,
assistance or counsel in the planning or commission of the crime, incitement
or encouragement of the principal actor to commit the offense, emboldening
him to act, or otherwise aiding or abetting the crime’s commission. 10
Depending on whether or not one was present at the scene of the crime, those
who criminally aided or abetted the principal were either principals
themselves (but in the second degree) if they were present at the scene either
actually or constructively, or, if absent from the scene at the time of the
crime’s commission, they were accessories either before or after the fact. As
a practical matter, there was considerable procedural significance to these
distinctions which could be quite nice, 11 but the substantive result was the
2010] Dumb and Dumber: Reckless Encouragement 653
and negligence are not sufficient mental states to incriminate one as an
accomplice. 16
Recklessness and negligence are conceived of as belonging to a
fundamentally different category of culpability than that occupied by purpose
and knowledge. As Holmes said, “even a dog distinguishes between being
stumbled over and being kicked.” George Fletcher writes of “the classic 17
distinction between dolus (intention) and culpa (negligence)” which he states 18
is the “basic cleavage... [in classifying] the states of mind used in criminal
legislation.” 19 Thus, an individual who acts only recklessly or negligently has
no liability for a crime which requires intent, or perhaps knowledge. Liability
in such a case would be incongruous. In People v. Hernandez , the court dealt
with the analogous situation of intentional attempts to commit negligent
offenses. The court said: “[T]he words ‘attempt’ and ‘negligence’ are at war
with one another; they are internally inconsistent and cannot sensibly
coexist.” 20 As Robinson writes, “[O]ne cannot, it is claimed, accidentally be
an accomplice.” 21 Dressler goes on to explain:
The people being considered here are acting with recklessness or negligence,
likely of a degree sufficient to be considered criminally culpable, but often not
654 Southern Illinois University Law Journal [Vol. 34
with the intent or knowledge requisite for accomplice liability. For example,
in the case of Daniel Wright, who died of a lethal shotgun blast to the heart,
Wright intentionally directed his friend Robert Stottlemire, the principal in the
first degree to a reckless homicide, to “shoot me.” Aside from the pathos and
complications caused by the law of suicide, Wright’s conduct is a classic 23
instance of accomplice liability being incurred through intentionally directing
or ordering another to do a criminal act. But what of Wright’s other friends 24
present in the field that night? Seemingly, the events unfolded after a night
of drinking in which all the young men, aged eighteen through twenty, were
willing participants. 25 Only Wright directly ordered or solicited the fatal shot,
but all are likely to have behaved with gross negligence.
When faced with an inebriated friend proposing to engage in such
heedless behavior, any reasonable man would discourage it. A reasonable
person certainly would not actually encourage this behavior by accompanying
his friend in a drunken revelry to a deserted field in the middle of the night
with a loaded shotgun. It is not clear exactly what was said that night or what
messages the friends implicitly conveyed to each other by their conduct. Yet,
regardless of how reckless the facts may show the friends to have been, 26 they
656 Southern Illinois University Law Journal [Vol. 34
seem to be prime candidates for some criminal sanction, yet the charges
against them stem only from the fact that they lied to the police after the
homicide had occurred. It might be wise to establish a new offense more
precisely tailored 29 to the dangers such persons pose and the personal
blameworthiness that they exhibit.
Similarly, Jason Welch, who tried so clumsily to disarm a pistol found
at a pot party, was also charged as the principal in a murder case. Whoever
put the loaded pistol in the living room sofa aided Welch in the offense by
providing him with the very weapon he used to kill Kathryn Lally. If this
assistance had been provided intentionally, accomplice liability for the
provider would be found easily. Supplying a criminal with the instruments
necessary to commit a crime is another classic instance of the conduct of an
accomplice.^30
However, there is nothing which would indicate any intent to kill Lally.
Hiding a loaded pistol in a sofa in the middle of a crowded, alcohol-fueled
party is likely gross negligence. Still, however foreboding the conduct, it is
not practically certain to cause death and the resulting death of Kathryn Lally
can not be punished as a knowing homicide. Absent either a purpose to assist
in the homicide or knowledge that they were doing so, the provider of the gun
bears no accomplice liability for killing Lally.
It is important to note that weapon-possession offenses were charged
against several of the party attendees and that other charges might have been
possible. However, no charges arose out of Lally’s death against any of the
party goers. Again, one might argue that this is as it should be. The gun’s
owner may be careless, even criminally so, but it was the hubris of the ill-
advised Welsh (who thought he knew enough about the workings of deadly
firearms from watching Hollywood productions) that lead to the death of
2010] Dumb and Dumber: Reckless Encouragement 657
Kathryn Lally. Yet, it is only the fact that firearms are heavily regulated that
allows the authorities to take any action at all against the careless owner. 31
In our third case, Josh Paniccia pled guilty to Criminally Negligent
Homicide in the death of David Ryan, the thirty-two year old bicyclist struck
by Paniccia when he lost control of his speeding, souped-up car. Paniccia had
a passenger in the car at the time of the homicide. Had that passenger
intentionally encouraged Paniccia to speed dangerously down the road, the
passenger clearly would have incurred accomplice liability. 32
But what of Paniccia’s parents? The case occurred in New York. New
York law requires parental consent for a minor to be issued a driver’s license.
Additionally, New York law allows the parent to withdraw that consent by
filing a form with the Department of Motor Vehicles which will then cancel
the license. 33 Thus, New York gives parents the power to take away their
children’s driving privileges should the child prove unworthy of them.
However, it is an open question as to whether a legal duty to do so exists.
Paniccia, a relatively new driver, had been arrested for speeding three
times in the twenty-one months preceding the fatal collision and had
committed some other unspecified moving violations before that. 34 His
parents did nothing to revoke his license and get Paniccia off the road.
Instead, they helped him purchase the cherry red car and aftermarket add-on
equipment, including a supercharger and racing tires, which enabled him to
drive even faster than the car would go otherwise. The prosecutor criticized
them pointedly at sentencing for enabling their son to continue to be a menace
to all others on the road. 35 No charges were brought against them, likely
because of the difficulty in establishing a legal duty to act.
But what if a legal duty to restrain their son’s wayward activity could be
established? Then the failure to fulfill that duty would have aided Paniccia by
2010] Dumb and Dumber: Reckless Encouragement 659
offense. But here we are faced with people who stubbornly refuse to 38
recognize the danger posed to others by the reckless action of their loved ones.
Instead of providing proper restraint, they heedlessly assist their child or loved
one in wreaking reckless havoc on us all. In such circumstances it is desirable
to have available a special offense directed at the specific problem they pose. 39
Sara Wall raced Amilcar Valladares through the streets of Gaston, North
Carolina. Both drivers were reckless but only Valladares lost control of his
car, injuring people gathered at a Dairy Queen. Wall had not “bumped”
Valladares or otherwise caused him to crash. 40 She, personally, injured no
one. Any effort to explore the possibility of holding her liable for assault as
Valladares’s accomplice plunges one into the unruly and complex complicity
doctrine. Wayne LaFave, in discussing accomplice liability for assistance or
encouragement of reckless or negligent conduct, says that “the cases in this
area are generally in a state of confusion” 41 and that “there is considerable
diversity in the cases on the subject of whether accomplice liability may rest
upon knowing aid to reckless or negligent conduct if that conduct produces a
criminal result.” 42 Note that LaFave is writing of “knowing” aid or
encouragement (which he finds is “most common[ly]” illustrated by cases in
which an owner knowingly lends his car to an intoxicated friend who drives
recklessly and kills another 43 ) and is not considering the case of aid provided
either recklessly or negligently. It appears from examining numerous cases
that order and consistency are in even shorter supply when courts consider
accomplice liability for reckless offenses where assistance or encouragement
has been rendered recklessly.
A basic problem is that accomplice liability for reckless or negligent
offenses can be seen as oxymoronic, a contradiction in terms. 44 As noted
660 Southern Illinois University Law Journal [Vol. 34
Within the Constraints of Intent , 31 LOY. L.A. L. REV. 1351, 1351-52 (1998).
above, there are two distinct forms or types of mens rea: purpose and
negligence (or dolus and culpa if you find the Latin terms useful as conceptual
place markers). Each form may be broken down into subcategories (purpose 45
may be divided into purpose and knowledge while negligence may be divided
into recklessness and negligence ) but each form is considered separate and 46
distinct and, as suggested in Kipling’s poem, “[n]ever the twain shall meet.”^47
That which is done on purpose cannot, by definition, be considered to have
been done negligently, and the negligent actor cannot be considered to have
acted purposefully.
Accomplice liability classically requires a mental state of intention or
purpose (or perhaps knowledge) but reckless or negligent offenses require
only the less culpable mens rea of recklessness or negligence. Not only is the
degree of culpability unequal, but both purpose and knowledge require a
choice to bring about the harmful results or conduct involved, or at least an
awareness that they are certain to occur.
On the other hand, recklessness and negligence both exclude that sort of
choice to do harm. A reckless or negligent actor does not believe that harm
will result from his actions, has not made any choice, and does not have the
awareness that marks the purposeful or knowing offender as so much more
evil and dangerous. 48 It has been held that running the two together, i.e.
662 Southern Illinois University Law Journal [Vol. 34
friend known to be intoxicated. While there will most often be no purpose by
the secondary party to cause a harmful result, if the focus is kept on the
conduct, the required mental state of purpose to aid or encourage can be
found. It is true that the secondary party has been proved an accomplice in
conduct rather than the resultant death or injury, yet one may require only
negligence or recklessness as to that result and still retain, at least in part, an
allegiance to the traditional notion that accomplice liability is purposeful and
not based on negligence. If one has exhibited recklessness or negligence as
to the harm which was caused by the primary party whose conduct one has
intentionally aided, then liability for recklessly or negligently causing that
harm may be imposed without unduly torturing the received dogma on
complicity.^51
Regarding Sara Wall, one could argue that just as it takes two to tango,
it takes two to race. One party to a race desires, needs, and encourages the
other party’s actions so that there is some opponent against whom to
compete. 52 Thus the element of purposeful mens rea traditionally required for
accomplice liability may be found, not in the offense considered as a whole,
but in one component of the offense (i.e. conduct such as dangerous driving
on city streets). The actor who has purposefully aided or encouraged the
conduct may then be classified as “an accomplice in the commission of the
conduct,” 53 and he may arguably be properly held complicit in the commission
of the whole offense if he exhibits the mens rea sufficient for the offense, such
as (in this example) a reckless disregard for the safety of others on the road.
Thus one who purposely aided or encouraged another to drive in a
reckless manner could be held as an accomplice to a reckless homicide
committed by a driver who fatally injured another. This is the technique that
may be teased out of the provisions of the Model Penal Code and its two
editions of official commentaries, 54 but it reaches only those cases where a
guilty intention, or perhaps knowledge, on the part of the secondary party can
be found.
2010] Dumb and Dumber: Reckless Encouragement 663
An example of the kind of case in which this analysis works most easily
is People v. Madison. A jealous teen-age suitor, together with eight of his 55
friends, chased his rival for approximately twenty minutes through suburban
California streets intending to “kick his ass.” The defendant, Michael 56
Madison, was not the driver of any of the pursuing cars but urged his friend
who was driving to “[g]et him.” Their quarry eventually crashed and was 57
killed. The pursing driver was convicted of involuntary manslaughter for his
grossly negligent driving. Madison was convicted as an accomplice because
his encouragement and direction as the group’s leader was intended to urge
the driver to engage in a “hazardous pursuit, fraught with peril to all of the
participants... .”^58
This kind of case is easy because of the personal presence of the
defendant on the scene where he solicits or encourages specific acts or
particular courses of conduct. Since the purpose of his actions is to produce
the conduct of the primary party, it is not a great stretch for the law to attribute
legal responsibility for those actions to the one who instigated them.
However, actors may not always act with such a manifest guilty intention, or
at least it may not be possible to prove beyond a reasonable doubt that they
did so. As a result, a number of the Sara Walls of this world may not be
reachable by this technique.
Drivers in fatal road races, who have not themselves killed or injured
others, may often argue rather convincingly that they had no knowledge that
their competitor would behave as stupidly as he did and that they therefore did
not knowingly aid or encourage that particular conduct. 59 Whether their
2010] Dumb and Dumber: Reckless Encouragement 665
committing.” The New Hampshire legislature subsequently amended their 65
statute in 2001 to reflect more closely the Model Penal Code approach noted
above and it now appears that Etzweiler, should he repeat his earlier ill- 66
advised conduct, could indeed be convicted of homicide. 67
B. Causation
Causation provides another approach to imposing liability. The negligent
actor, such as the owner of the pistol Jason Welsh used, could be found to
have proximately caused the harm and to be criminally liable for its
occurrence. Such an approach would not rely on some form of vicarious or
accomplice liability deriving from Welsh’s criminality but would focus
instead on the owner’s own responsibility for having caused the result. Welsh
would be regarded not as a criminal with whom the owner is associated and
in whose guilt he or she shares, but simply as another link in a chain of
causation connecting the owner to the death of Kathryn Lally when the gun
discharged. This is a conceptually clean, indeed elegant, approach to liability
which avoids the complications of interjecting a negligent mens rea into a
doctrine of complicity viewed as essentially intentional in nature.
The approach would therefore seem to have much to offer. Of course,
the problem is the concept of superseding cause. 68 Causation is one of the
law’s perennial conundrums, extensively, even avidly, discussed in articles,
books 69 and learned opinions. 70 One of the issues regularly discussed is the
666 Southern Illinois University Law Journal [Vol. 34
Trivial Assistance as a Lesser Offense? 5 OHIO ST. J. OF CRIM. L. 427, 430 (2008). Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine , 73 CAL. L. REV. 323 (1985). See also FLETCHER, supra note 18, § 5.2.2; JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 247-95 (3d ed. 1960).
responsibility of an actor whose conduct has initiated a chain of events which
leads to a harmful result, but only after another actor has intervened. This will
be an issue in all of the cases considered here. In all of them a reckless actor
engages in conduct which initially hurts no one. It is only after a subsequent
actor’s own reckless conduct combines in some way with the initial harmless
conduct that injury results. Kathryn Lally was not shot dead until the reckless
acts of Jason Welsh combined with the conduct of the owner of the gun in
recklessly leaving it stuffed under a sofa cushion in the middle of a party.
There are many variable factors which may go into determining potential
responsibility. It is possible that the second actor who actually causes the
harm is in some fashion an agent of the first, his principal. If an agency
relationship can be established then the acts of the second actor, the agent, are
in law the acts of his principal, the first actor. If the acts of both persons are
legally attributable to the first actor, no question of intervening, superseding
cause can arise.^71
Where there is no agency type relation, things get much more
complicated. There is the possibility that the original actor’s conduct will
itself be found to have substantially and independently contributed to the harm
at the moment of its occurrence. Thus, if Kathryn Lally had been shot twice