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- Professor of Law, Albany Law School.
D U M B A N D D U M B E R : R E C K L E S S
ENCOURAGEMENT TO RECKLESS WRONGDOERS
Daniel G. Moriarty*
This paper discusses compound recklessness, i.e. situations in which one
person’s heedlessness helps another to commit a reckless offense. The
conviction of the second party, who actually commits the offense, poses no
unique problem. Offenses committable through various forms of criminal
negligence and recklessness, such as involuntary manslaughter, are routinely
available in every jurisdiction. But conviction of the first party who recklessly
provided the means or opportunity for the second party’s acts poses significant
problems.
Part I of this paper looks at several cases which present illustrations of
the kind of situations encountered. In Part II, the paper considers some of the
complications involved in reaching an appropriate resolution of this dilemma.
Part II A considers complicity as a possible solution but concludes it is
unavailable as it requires an intention to aid another, which is absent in cases
of recklessness and negligence. Part II B considers whether principles of
causation might be utilized, but concludes they, too, are unsuitable. The
second party’s criminally reckless or negligent activity is apt to be considered
an intervening, superseding cause, leaving the first party free of any criminal
liability for harms caused by the final actor. Part II C considers the relatively
new offense of Reckless Endangerment, an offense pioneered by the Model
Penal Code which could, unlike complicity or causation, provide a means to
criminally sanction the initially reckless individual who aids another in
committing a reckless offense. Reckless endangerment is ultimately
unsuitable, however, for while it may well be available in most states (sixty
percent), it is by no means available in all, and where it is available is
generally graded as a misdemeanor only, with a maximum imposable prison
term of about a year.
This paper argues that in many cases such a relatively minor grading is
disproportional to the harm committed, such as death or serious physical
injury, and Part III proposes a new statute to address the problem. The policy
arguments which must be considered in drafting such a statute are considered
in Part III A, with the objective elements of the new offense considered in Part
III A(1) (degree of aid or encouragement); Part III A(2) (omissions); Part III
A(3) (resulting harm); and Part III A(4) (circumstances). The subjective
648 Southern Illinois University Law Journal [Vol. 34
- Ruth Ann Krause, Man Linked to Flak-Jacket Fatal Shooting Pleads Guilty , GARY IND. POST-TRIB., July 26, 2007, at A10; Karen Snelling, Victim to Friends:”Shoot Me: I’m Ready,” GARY IND. POST- TRIB., Feb. 12, 2005, at A1.
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
- See MODEL PENAL CODE § 211.2 (1980).
- JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 465 (5th ed. 2009).
- The common law did not develop sharp distinctions in the forms of participation in either treason or misdemeanor. As Perkins and Boyce state, “guilt of such crimes may be incurred by incitement or abetment as well as by perpetration... .” ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 735 (3d ed. 1982). However, the elaborate distinction between principals of various degree and accessories before and after the fact was not employed. The common law did “not descend to distinguish the different shades of guilt in petty misdemeanors.” Id. at 726 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES 36 (1769)). If one perpetrated treason or a misdemeanor, or abetted or incited it, one was simply guilty of the principal offense.
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
- The law of complicity is discussed in some depth in a number of standard text books. See, e.g. , DRESSLER, supra note 7, ch. 30; 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW, ch. 13 (2d ed. 2003); PERKINS & BOYCE, supra note 8, ch. 6, § 8.
- Acts which encourage or embolden another to pursue or persist in negligent action seem to play a significant role in many of the cases, as in the death of Daniel Wright or the injuries caused by Amilcar Valladares. Accomplice liability has been predicated on acts of shouting or otherwise communicating approval and a desire that the principal actor continue in his or her course of conduct. See, e.g. , Wilcox v. Jeffery, (1951) 1 All E.R. 464 (K.B.); R. v. Black, [1970] 72 W.W.R. 407 (Can.). In State v. Ochoa , 72 P.2d 609 (N.M. 1937), a crowd, angered at an arrest occasioned by an eviction, had gathered at the courthouse where a hearing was being held. “[T]hey pounded on the windows, shouted and cursed, and some of them threatened to kick the door down.” Id. at 612. When the prisoner was sought to be returned to jail, a riot ensued in which the Sheriff was killed and others injured. It was not entirely clear who had fired the fatal shot. The court said of accomplice liability: The evidence of aiding and abetting may be as broad and as varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any other means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider’s support or approval. Id. at 615. The encouragement, however, must be given with the purpose of producing the principal actor’s conduct. See Hicks v. United States, 150 U.S. 442 (1893); R. v. Clarkson, (1971) 3 All E.L. Rep. 344 (C-MAC).
- Many writers have commented on the intricacies of the common law system of parties to crime. Dressler cites a number of them in his textbook in the first footnote to his chapter on complicity. See DRESSLER, supra note 7, at 465. Especially interesting observations are made by Richard Bonnie and colleagues. RICHARD J. BONNIE ET AL., CRIMINAL LAW 680-81 (2d ed. 2004) (“the distinction between principals and accessories was critically important.... This scheme invited evasion of justice.”) and by Perkins & Boyce who attribute the nicety of principal-accessory distinctions to a “dissatisfaction... [with] an excessive number of executions in felony cases” which unsurprisingly “tended to prevent conviction despite clear evidence of guilt.” PERKINS & BOYCE, supra note 8, at 751-52.
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
- A related issue arises where an actor intentionally aids or encourages another to engage in particular reckless conduct. If that other person performs the encouraged conduct and thereby commits a reckless crime, there is a question of whether the first actor can be convicted of that reckless crime as an accomplice. This question will be discussed later ( see infra notes 47-66 and accompanying text) but note carefully that the aid or encouragement there discussed is given intentionally; that is not a case of recklessly or negligently stumbling into accessorial liability.
- OLIVER WENDELL HOLMES, JR., THE COMMON LAW 3 (Dover 1991) (1881).
- GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 443 (Oxford Univ. Press 2000) (1978).
- Id. at 442. See GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW (1998).
- People v. Hernandez, 614 P.2d 900, 901 (Colo. Ct. App. 1980).
- PAUL H. ROBINSON, CRIMINAL LAW 327 (1997).
- DRESSLER, supra note 7, at 481. Professor Dressler has, however, begun to consider if complicity could be conceptualized in terms of the accomplice taking a risk that another will commit a crime. See Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense , 5 OHIO ST. J. CRIM. L. 427 (2008). He discusses several articles considering various risk-based analyses and accepts none of them completely; but he does write that “I acknowledge that the criminal conduct of [accomplices] can coherently be seen as a risk-based, rather than a harm-caused, doctrine.” Id. at 446. If excessive risk-taking becomes the focus of accomplice liability, then the emergence of recklessness as a suitable mens rea would seem entirely possible, if not inevitable.
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:
[C]ourts and statutes frequently express the culpability requirement for
accomplice liability in terms of ‘intent’, e.g., the ‘intent to promote or
facilitate the commission of the offense.’... If so, it is logically impossible
for a person to be an accomplice in the commission of a crime of recklessness
or negligence.^22
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
- “Self-destruction is a form of homicide, and a felony under English common law.” WILLIAM LAWRENCE CLARK & WILLIAM L. MARSHALL, A TREATISE ON THE LAW OF CRIMES 623 (7th ed. 1958). The legal treatment of such deaths varied over time, from originally punishing such a “ felo de se ” with ignominious burial and forfeiture of lands and goods to later leaving the conduct unpunished. Suicide, although a deliberate and unlawful killing, did not constitute murder which required the killing of another. See id. at 623-28 and PERKINS & BOYCE, supra note 8, at 119-24. (Both authorities contain extensive citations to common law authority.) However that may be as a matter of history, a deliberate order to another person to unlawfully kill a human being remains an archetypical example of the kind of conduct which supports accomplice liability.
- For a civil case with similar facts, see Michael R. v. Jeffrey B., 205 Cal. Rptr. 312 (Cal. Ct. App.
- (suit for damages where secondary actor urged the primary actor, while armed with a powerful slingshot, “Hey, shoot him, go for it.” The court rejected the defense that there was no tort of “negligent encouragement” and that the secondary party was a mere “verbal bystander.”).
- See Ruth Ann Krause, One-Year Term For “Flack Jacket” Lie , GARY IND. POST-TRIB., Aug. 31, 2007, at A5.
- The influence of crowd psychology in instigating negligent behavior can be seen at illegal road races, an increasingly common occurrence. These more or less organized events include crowds of spectators, encouraging the contestant drivers in exciting demonstrations of skill, daring and really stupid, i.e. grossly negligent, behavior. In one, detailed in a 2008 article, the crowd surged onto a rural highway behind two drag racers who had just started down the road in a cloud of smoke from spinning tires. Another driver then came over a rise in the road, could see nothing for the haze, and plowed into the hidden crowd, hurling bodies in all directions, killing eight. In an ironic twist, it seems that the driver may himself then have been engaged in another road race. See Brent Jones, Racing Deaths Charges: Two Men Indicted on Eight Vehicular Manslaughter Counts , BALT. SUN, July 30, 2008, at 1B. See also Victoria Kim, Nearly 200 Arrested at Street Racing Site in Ontario , L.A.TIMES, Sept. 29, 2008, at B4. In another, detailed in a 2002 Washington Post article, two police officers were charged with “neglect of duty” after they watched such a race, taking place just beyond their jurisdictional boundary, while
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
- It is notable, for example, that no black citizen of Gary, Indiana was in fact shot and killed, while Daniel Wright was. One might wish to distinguish the two situations by imposing an appropriately more severe sanction in the case where death occurred as opposed to where it was “only” risked. Similarly, firing a shotgun directly at a man’s heart with only a “bullet proof vest” of unknown provenance between him and eternity might be regarded as an act amounting to sporting with human life, of significantly greater depravity than exposing citizens to a chance of official harassment or violence. Such elements of result and mens rea are discussed later in connection with the proposed statute penalizing compound recklessness.
- Thus Lady Macbeth, who had in fact killed no one, felt unable to wash the blood of the murdered King Duncan (and others) from her hands. She had “laid their daggers ready” for her husband to use in the bloody deed. WILLIAM SHAKESPEARE, MACBETH act 2, sc. 2.
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
- Equally reckless assistance in the misuse of unregulated materials may well be immune from police or prosecutorial intervention. For example, if the person who had hidden the gun had instead hidden a large kitchen knife or an elaborately ornamented samurai sword behind the sofa cushions, their actions might still forebode ill consequences, yet kitchen equipment and oriental collector’s items are not normally subjected to close regulation.
- See, e.g. , People v. Madison, 51 Cal. Rptr. 851 (Cal. Dist. Ct. App. 1966), where the passenger urged the driver who was pursuing another car to “Get him, Bill” and “Don’t lose him, Bill.” Id. at 853. Where the passenger had “prodded” the driver to drive recklessly and “spurred her to elude the [pursuing] police,” the Maine Supreme Court reached a similar conclusion of liability using the language of proximate causation rather than complicity. People v. Saucier, 776 A.2d 621 (Me. 2001).
- N.Y. VEH. & TRAF. LAW § 502(2)(d) (McKinney 2004).
- Pam Allen, Fatal Crash Driver Had Been Cited , DAILY GAZETTE (Schenectady, N.Y.), July 13, 2004, at B1.
- Leigh Hornbeck, Victim’s Mother Speaks of Betrayal , TIMES UNION (Albany, N.Y.), June 7, 2005, at B1.
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
- The commentaries to the Model Penal Code discuss briefly the possible imposition of accomplice liability for omissions of legal duties. See MODEL PENAL CODE § 2.06(3)(a)(iii) cmt. 6(d) (1985).
- Sanford Kadish hypothetically discusses a similar case of a “vexatious youth” who, as is well known by his father, “is just beginning to learn to drive, has proved singularly inept, and has displayed an alarming proclivity to taking wild and irresponsible risks.” Nevertheless the father gives him the family car to drive, with fatal consequences when the son drives recklessly. Kadish is very concerned with expanding criminal law for reckless complicity too widely, but nevertheless he believes a case might be made against the father in such a situation. Sanford H. Kadish, Reckless Complicity , 87 J. CRIM. L. & CRIMINOLOGY 369, 380-81 (1997).
- See Commonwealth v. Levin, 135 A.2d 764 (Pa. Super. Ct. 1957).
- LAFAVE, supra note 9, § 13.2(e).
- Id. § 13.2(c).
- Id. § 13.2(e).
- Audrey Rogers noted the relative paucity of writing upon the “extent to which a person may be an accomplice to an unintentional crime” and suggested that it was at least partially explained by the fact that “some courts view the concept of intending to aid in the commission of an unintentional crime as oxymoronic.” Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining
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).
- See FLETCHER, supra notes 18 and 19.
- There obviously is a certain taxonomical inelegance here in using the same term, either purpose or negligence, for both a genus and a species. The Model Penal Code avoids this linguistic problem by providing a general requirement for “culpability” and then defining four specific mental states, “purposely,” “knowingly,” ”recklessly” and “negligently,” which are required before an actor can be guilty of an offense. It does not further categorize the elusive mental element of criminal conduct. See MODEL PENAL CODE §§ 2.02, .05(1985). To distinguish blameworthy conduct that is done “on purpose” from that which is done “only accidently,” more categories must be used than does the Model Penal Code. There is virtue here in adopting the Latin terms “dolus” and “culpa,” but one can get along quite nicely by bearing context in mind.
- RUDYARD KIPLING, The Ballad of East and West , in BALLADS AND BARRACK-ROOM BALLADS 3, 3 (1897), which opens with the lines “Oh, East is East, and West is West, and never the twain shall meet.”
- Herbert Wechsler and Jerome Michael discussed the difference between advertence and inadvertence as it bore upon the character and danger of offenders in their seminal article “A Rationale of the Law of Homicide.” They noted there regarding inadvertent homicide that “[w]hatever his ends, we have no reason to believe that he would have sought them in the same way had he been aware that his behavior was homicidal. So far as we know, the preservation of life occupies a place in his scale of values which is at least close to that which we think it should have.” Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide II, 38 COLUM. L. REV. 1261, 1275 (1937). Thus, they argued, the unknowing man, even if he caused a death, was not of the same ilk as one who had knowingly killed another. Similarly, where one has not purposely joined with another to accomplish a criminal end, or does not know that his conduct will certainly assist in doing so, we have insufficient reason to believe that he is a bad and dangerous man who is apt to do such a thing again
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
- Justice David Souter (who was serving on the New Hampshire Supreme Court at the time) also struggled with this problem in State v. Etzweiler , 480 A.2d 870, 876-77 (N.H. 1984). Joshua Dressler explains the process rather nicely in his textbook. See DRESSLER, supra note 7, at 481-82, 500-01.
- See, e.g ., People v. Abbott, 445 N.Y.S.2d 344, 346-47 (N.Y. App. Div. 1981), cited with approval in Riley v. State, 60 P.3d 204, 210-11 (Alaska Ct. App. 2002).
- See MODEL PENAL CODE § 2.06(4) (1985).
- See id. at cmt. 7; MODEL PENAL CODE § 2.04(4) cmt. (Tentative Draft No. 1 1953). This interpretation of the Code’s language is an example of how easy interpretation can appear once you know what the authors had in mind when they wrote. Such interpretive adeptness seemed to elude the Supreme Court of New Hampshire when it decided Etzweiler , 480 A.2d 870; s ee id. at 876- (Souter, J., concurring).
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
- People v. Madison, 51 Cal. Rptr. 851 (Cal. Dist. Ct. App. 1966).
- Id. at 853.
- Id.
- Id. at 855.
- See, e.g. , Jacobs v. State, 184 So. 2d 711, 718 (Fla. Dist. Ct. App. 1966) (Carroll, J., dissenting) (a road racing case in which one participant killed both himself and an oncoming motorist and another participant was convicted of manslaughter through “aiding and abetting): [There is no testimony] from which reasonable men could conclude that the defendant knew that Kinchen [the deceased racer] was planning to try to pass the racing cars... and certainly not a word that the defendant knew or had the slightest notion that Kinchen would be so reckless as to try to pass Carter’s car by turning into the east lane in the face of oncoming traffic [at the crest of a hill]. Judge Carroll’s dissent failed to convince either of the two other judges who formed the majority, who ruled that the defendant was “an active participant in the unlawful event out of which the deaths arose.” Id. at 716. Each case is of course fact specific but nevertheless, if the critical issue is seen to be whether the secondary party knew that the primary party was going to engage in particular reckless conduct, the sentiments expressed by Judge Carroll may be expected to be at play in many such cases. Jacobs and a similar case, State v. McFadden , 320 N.W.2d 608 (Iowa 1982), have been contrasted with Commonwealth v. Root , 170 A.2d 310 (Pa. 1961) by Kadish and his various co- authors for almost forty years. Compare SANFORD H. KADISH AND MONRAD G. PAULSEN, CRIMINAL
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
- Id. at 874-75.
- See N.H. REV. STAT ANN. § 626:8 (2007).
- See State v. Anthony, 861 A.2d 773 (N.H. 2004).
- Perkins & Boyce state “[a] superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” PERKINS & BOYCE, supra note 8, at 781 n.79 (citing RESTATEMENT (SECOND) OF TORTS § 440 (1965)). Kadish argues for the special analytical significance of intervening acts because “we perceive human actions as differing from all other natural events in the world.” Sanford H. Kadish, Reckless Complicity , 87 J. CRIM. L. & CRIMINOLOGY 369, 393 (1997) (citing his earlier work Complicity, Cause and Blame: A Study in the Interpretation of Doctrine , 73 CAL. L. REV. 323 (1985)).
- Ronald Boyce, Donald Dripps, and Rollin Perkins begin the causation section of their casebook with quotations from ten such sources. See RONALD N. BOYCE, DONALD A. DRIPPS & ROLLIN M. PERKINS, CRIMINAL LAW AND PROCEDURE (10th ed. 2007). Dressler similarly begins his discussion of causation in his text with a citation to nine excellent books and articles. See DRESSLER, supra note 7, at 181 n.1. Dressler discusses causation specifically as it relates to accomplice liability in a section of his article. Joshua Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to An Old Problem , 37 HASTINGS L.J. 91, 98–108 (1985). He recently renewed that discussion in his article Reforming Complicity Law: Trivial Assistance as a Lesser Offense? which is written in part as a response to what Dressler characterizes as “perhaps the finest article published in an American law journal written on [complicity].” Joshua Dressler, Reforming Complicity Law:
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).
- The cases are, of course, legion, but two will give the flavor of the issues involved. In Stephenson v. State , the defendant had abducted and debauched Madge Oberholtzer while traveling on a train, subjecting her to various forms of sexual perversion, including the infliction of extensive and severe bite wounds. Stephenson v. State, 179 N.E. 633 (Ind. 1932). Distracted by pain and shame she attempted suicide, ingesting bichloride of mercury, and became violently ill. Stephenson drove her home, refusing to stop when she screamed for a doctor. Her parents summoned a doctor who treated her for ten days until she died. During that time all of her wounds healed, although one had become infected for a time. The medical cause of death was a combination of many factors, including shock, poison, infection, lack of rest and food. The court affirmed a conviction of murder, holding that to deny Stephenson’s causal connection to Oberholtzer’s death would be a “travesty on justice.” Id. at
- For an excellent discussion of the case, see Comment, Criminal Law and Procedure)Homicide) Causal Relation Between Defendant’s Unlawful Act and the Death , 31 MICH. L. REV. 659 (1933). The other case involved a wife who secretly mixed poison into a medicine which had been prepared by an apothecary upon the prescription of a physician for her sick husband. The husband took the medicine and became ill, as did his father-in-law who also tasted it. The father-in-law complained to the physician, who in turn complained of the apothecary, who defended his own work by mixing it all together more completely and eating the electuary. He died. All the Judges of England considered the case and agreed she was guilty of murder for “if the law should not be such, this horrible and heinous offense would be unpunished; which would be mischievous, and a great defect in the law.” Agnes Gore’s Case, (1611) 77 Eng. Rep. 853 (K.B.).
- See, e.g., Moreland v. State, 139 S.E. 77, 78 (Ga. 1927) (reckless manslaughter case where owner of automobile was “liable for the acts of his chauffeur done in his presence”).
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
