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37 Hastings L. J. 91 (1985-1986)
Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem

handle is hein.journals/hastlj37 and id is 109 raw text is: Reassessing the Theoretical Underpinnings
of Accomplice Liability: New Solutions
to an Old Problem
The law of accomplice1 liability is perhaps now so widely accepted
that few scholars have examined the soundness of its theoretical founda-
* Professor of Law, Wayne State University Law School. B.A. 1968, J.D. 1973, Uni-
versity of California at Los Angeles.
1. This Article uses the terms accomplice and secondary party or actor in generic
form to include all persons who were described at common law as principals in the second
degree or accessories before the fact. The term accomplice does not include the perpe-
trators of crime (primary parties or actors), who were identified at common law as princi-
pals in the first degree. For the definition of these terms, see infra notes 12-14 &
accompanying text. Those described at common law as accessories after the fact now are
punished less severely than other accomplices and principals in the first degree. W. LAFAVE &
A. ScoTT, HANDBOOK ON CRiMINAL LAW 495 (1982). Because such actors do not assist in
the commission of the crime, but rather hinder law enforcement officials in their apprehension
of the perpetrator and accomplices, the theories and reforms described in this Article do not
apply to them.
In addition, this Article does not discuss in detail the law pertaining to the substantive
crime of conspiracy or the legal accountability of conspirators, as distinguished from tradi-
tional accomplices. Usually, there is no need to consider separately the two forms of accounta-
bility because a co-conspirator will actually aid in the crime; at the least, the act of agreeing
encourages, and thereby aids the other actor. Note, Developments in the Law-Criminal Con-
spiracy, 72 HARV. L. REv. 920, 998-99 (1959). As such, the co-conspirator is punishable as an
accomplice. In many cases an accomplice is a co-conspirator, subject to prosecution for the
inchoate offense of conspiracy. Some jurisdictions purport to punish co-conspirators for the
actions of their criminal partners, even if they do not assist in the crimes. See, e.g., Pinkerton
v. United States, 328 U.S. 640, 646 (1946) (defendant held responsible for the crimes commit-
ted by his brother while defendant was in prison because the crimes were committed in fur-
therance of their conspiracy or were reasonably foreseeable as a necessary or natural
consequence of their unlawful agreement). In fact, however, the conspiracy doctrine is usually
applied to an actor sufficiently involved in the planning of the offense that usual accomplice
doctrine suffices. See MODEL PENAL CODE § 2.04(3) comment at 22 (Tent. Draft No. 1, 1953)
(current version at MODEL PENAL CODE § 2.06(3) (Proposed Official Draft 1962)). The Pink-
erton doctrine has been heavily criticized, W. LAFAVE & A. Scor, supra, at 515, and is
rejected by the Model Penal Code. See MODEL PENAL CODE § 2.04 comment at 20-21 (Tent.
Draft No. 1, 1953) (current version at MODEL PENAL CODE § 2.06 (Proposed Official Draft
1962)). The author, too, would abolish the doctrine, to the extent that it really exists. How-
ever, for purposes of this Article, all of the arguments pertaining to the moral significance of
the requirement of causation to accomplice liability, see infra notes 65-96 & accompanying
text, apply even more forcefully to Pinkerton conspiracy theory.

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