In his post below, Eugene asks whether a bystander who cheers on a criminal can be criminally liable as an accomplice. His answer:
Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).This having been said, convictions based on solely encouragement-by-cheering, without any more tangible help, are apparently rare. Unless I’m mistaken, this theory was tried as to some bystanders in the infamous New Bedford barroom rape case, but they were acquitted. ”
I have a somewhat different take. I don’t know of any cases on this, but my sense has been that the answer is probably “no.” The reason is that an “aider and abbettor” must aid and abet, not merely abet. A bystander who merely cheers on a criminal is not actually aiding the criminal, at least absent unusual circumstances. That is, he is not engaging in an act or omission that assists the crime. So I have tended to think that the bystander has not satisfied the act requirement of accomplice liability and therefore isn’t liable.
It’s true that some courts say that “encouraging” the crime can satisfy the act requirement of accomplice liability. But when I’ve looked for cases that purport apply this, I encountered cases in which the encourager was actually helping the crime. It wasn’t just encouragement in the sense of an innocent bystander saying, “Run, OJ, run!,” but stuff more like co-conspirators giving the bad guy a pep talk to override his doubts and make sure he would go ahead with the crime. So my tentative sense of it is that the encouragement has to actually help the crime occur or the bad guys to escape. Of course, I realize the lines are hazy here, but I tend to think the bystander ordinarily can’t be liable under this standard.
D.O. says:
Isn’t there a crime of “inciting to commit a crime”? It could
be reasonably applied to encouragement if encouragement led (beyond reasonable doubt) to a heavier crime or injuries.
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November 3, 2009, 8:44 pmDonald says:
I think you’re right that Professor V.‘s aider and abettor argument may be off the mark.
But what about criminal liability through a theory of complicity, which is generally broader than aiding-and-abetting?
For instance, in Ohio, complicity includes “aiding OR abetting” the offense, as well as soliciting another to commit the offense; conspiring to commit the offense, or causing an innocent person to commit the offense.
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November 3, 2009, 8:52 pmUncleWin says:
I don’t follow. You hypothesize as to what the law requires for aiding and abetting, with the caveat that you know of no cases. But you reference the case cited by Eugene, and that case clearly does not define aiding and abetting as you hypothesize.
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November 3, 2009, 8:58 pmjcm says:
Isn’t there a crime of “inciting to commit a crime”? outside the USA at least yes.
Fighting words?
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November 3, 2009, 9:02 pmOrin Kerr says:
UncleWin writes:
Incorrect. If you read the quote from Avila, it says that aiding and abetting liability requires 1) an “act” plus 2) a mental state of “knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” My point is about the act that is required, not the intent that is required. There must be some act, and the question is what constitutes an act: My sense is that the act must be something that aids in the commission of the offense.
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November 3, 2009, 9:07 pmSplunge says:
So if you not only shouted encouragement but instructions, you’re on the hook?
What if you’re an idiot and your helpful hints are wrong? Run this way, OJ! you say, but alas you’ve got your GPS turned upside down, and direct him straight into the arms of the law. Are you still buggered?
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November 3, 2009, 9:24 pmChrisTS says:
So, Professor K., you are arguing that encouraging — verbally, let’s say — a criminal act does not meet the standard of an act requisite for the offense?
I am not at all sure what the current law is in our many jurisdictions. I do know what I believe the law should be:
1) One who witnesses a crime has a duty to report that crime as quickly as possible so as to either (a) stop the crime or (b) ensure aid to the victim.
2) One who (a) encourages another in the commission of a crime by encouragements such as clapping or making sounds of encouragement, including words, and/or (b) fails to report said crime as quickly as possible so as to either (a) stop the crime or (b) ensure aid to the victim, shall be liable …..
I am not a writer of legislation, of course, and I am not suggesting what the liability should be. I do believe that a society in which standing by and watching, filming, clapping for, or otherwise encouraging violence against a fellow person is legally untouchable conduct is a society on its way to a well deserved death.
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November 3, 2009, 9:36 pmMalvolio says:
18 U.S.C. §2:
Obviously, this only applies to Federal crimes, but it seems to me that if you cheering on a rape, you are abetting, counseling, commanding, and maybe even inducing.
Abetting originally meant to set a dog on another animal, such as a bear or a badger, so you could enjoy watching them fight. Etymology is not authority, but still, that is very, very close to what happened in this case.
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November 3, 2009, 9:43 pmOrin Kerr says:
ChrisTS,
Wait, you’re an Internet commenter: I don’t think you’re supposed to distinguish between what the law is and what you want it to be.
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November 3, 2009, 10:04 pmRicardo says:
I think providing someone individualized advice on how to break the law and get away with it with the expectation that the person might actually take your advice has always been illegal. More general “how to” books on how to make explosives, manufacture illegal drugs or other such things are a slightly different category and I believe the Conspirators have addressed these in the past.
I’m not sure if your advice is stupid or wrong that it gets you off the hook, either. If aiding and abetting is a crime of intent (which I’ll defer to actual lawyers on) then you’re probably still in trouble. If you point a gun at someone and pull the trigger but the weapon is unloaded, in many places you can still be charged with attempted murder as long as the intent was there.
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November 3, 2009, 10:05 pmOrin Kerr says:
Malvolio,
I can’t quite see why you think cheering would violate 18 U.S.C. 2. I’ve generally understood Section 2 to just reflect the common law aiding and abetting concept that we’re discussing above.
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November 3, 2009, 10:07 pmloki13 says:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
Malvolia,
Cheering is not counseling, commanding, inducing, or procuring the commission of a crime.
I’m fairly positive that it is not “aiding” or “abetting” the crime as properly understood, either. The act does not aid the criminal, and abet (in the sense of assist) is not at issue either.
Am I missing something?
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November 3, 2009, 10:22 pmKen Arromdee says:
If the Constitution prohibits cruel and unusual punishment, is punishment that is merely cruel okay?
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November 3, 2009, 10:44 pmhattio says:
ChrisTS says;
So, America has been on it’s way to a well deserved death since it’s birth. And now, it’s perhaps not going to it’s death? I’m so confused.
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November 3, 2009, 11:00 pmRicardo says:
18 U.S.C. 2 specifies that someone who “aids, abets, counsels, commands, induces or procures” the commission of a crime is guilty. Since the word “or” joins these other words together, if we go by the literal text, it seems someone who merely abets rather than aids and abets is guilty. Is there legislative history to suggest otherwise?
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November 3, 2009, 11:10 pmHey Skipper says:
Isn’t there a crime of “inciting to commit a crime”?
Keeping in mind the all important caveat, IANAL, but I seem to remember that incitement to riot is a crime.
Is this incident sufficiently different from a riot to not make that applicable?
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November 3, 2009, 11:15 pmgeorge weiss says:
can we at least agree this is going to depend greatly on the different state’s common law applications of accomplice liability?
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November 3, 2009, 11:56 pmOren says:
Presumably a punishment that is usual (in the sense of not being rare) is not considered by the populace to be cruel.
Moreover, judges routinely hand down unusual sentences — forcing a defendant to bring fried chicken for the court staff, for instance — that I assume that punishments that are merely unusual (again, in the sense of being infrequent) are not forbidden either.
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November 3, 2009, 11:58 pmSplunge says:
I do believe that a society in which standing by and watching, filming, clapping for, or otherwise encouraging violence against a fellow person is legally untouchable conduct is a society on its way to a well deserved death.
As opposed to the police state, where the correct individual decisions on even minor moral issues are legislated and enforced by the government?
Consider some things:
First, the number of people who look to the law to guide their daily behaviour is very small. Most people will not cheer on a rape not because they’re aware of a statute forbidding it, but because their mother wit, natural human empathy and conscience revolts at the notion. They wouldn’t cheer even if the law required it, unless policemen were there with guns to force them, and many would refuse even then. No doubt there’s another slice, thankfully small, of sociopaths which would cheer, but also regardless of the law, again unless men with guns were there to enforce it.
So seriously, how big do you think is the fraction of people who, after consulting their own feelings, aren’t sure whether to cheer on a crime or not, but who nevertheless are at such pains to obey the law that what exactly the law says on the subject will make up their minds for them?
And if they are so dead to human feeling that they aren’t sure whether to cheer on the wounding of another human being, why would they give a damn what the law says anyway, except in the actual presence of is enforcers, e.g. the police? Most people obey the law for the very same instinctual reason they would not cheer on a crime: because it feels right, because they care about whether they are broadly perceived as good and moral people or not.
In short, if you have a society of normal human beings, not a retirement colony of SS officers who participated eagerly in Katyn, a law against cheering on a crime is generally unnecessary. (Parenthetically, and to address an obvious objection, why are laws against murder necessary, then? Because killing is not felt as immoral per se, unless you are a Jain or Buddhist, and the law is necessary to promulgate and enforce social agreement on which homicides are murder most foul and which are justifiable or even heroic, and which are innocent mistakes, bad judgment, or grievous failures of self-control. There is no similar need to categorize cheering on what we all agree is a crime — there are no situations in which a thing is a crime, but cheering its flourishment feels morally right. Note that I restrict this to malum in se crimes, not “crimes” that are merely violations of public policy fads o’ the moment, such as driving 60 in a 55 zone, fishing without a license, or violating Sarbanes-Oxley.)
Second, even so, does it follow that such a law should not exist? Wouldn’t it be OK even if its practical deterrent effect is zip, more or less as just a statement of public sentiment? A technical hook to nail the sociopaths before they can go on to more serious things, commissions of actual crimes?
Maybe, yes, if we lived in some idealized world in which the appropriate enforcement of laws is algorithmically perfect — in which there are no prosecutors who from human weakness or a certain desire to cut corners in the pursuit of “larger goals” might inappropriately wield the awesome power of the state against individuals.
You know, you’re at a political protest rally at an event at which the President is speaking. A heckler yells out You lie! Death to {Bush,Obama}! Carried away by your partisan enthusiasm, and sure this is just rhetorical excess on the part of the speaker, you hoot and laugh and — alas — are filmed by a local news crew yelling Yea! and pumping your fist in the air. Later, the Secret Service determines the heckler was actually a crazy, had a gun in his car trunk, with ravings on his Facebook about the President needing to die.
And it turns out you’re actually a pretty prominent political donor for the opposite side. Putting you away, or at the least tying you up in Court for a year or two, would be very convenient.
Starting to sound a little worrying? Or do you have 100% faith that These Things Can’t Happen, At Least Not Here? Despite, hmmm, things like funky prosecutions of uppity blacks in the South in the not too distant past?
I’m not saying it will, of course. But historical sad experience tells us that when you start imagining that you need or it would be desirable to have police power prescribing almost every moral decision people make, you have started down a very dark path indeed.
So perhaps every time you think this little law would help snag a few outlying cases of unpleasant antisocial behaviour, so what’s the harm? it’s not a bad idea to think again, to realize that each act of criminalization, each intrusion of the power of the state into individual morality and choice, has a nontrivial risk and cost that should be weighed in the balance. Maybe the benefit of revenge on a very few obnoxious bastards isn’t worth the creeping totalitarianism. Professor OK and the gang at Slashdot might adduce Lori Drew as somewhat of an example here.
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November 4, 2009, 12:13 amJake (guest) says:
Orin, have you ever seen a case finding that somebody aided but didn’t abet, or vice versa? My understanding is that “aiding and abetting” is a single legal code phrase, like “strict scrutiny” or “malice aforethought” or “depraved heart indifference.”
It’s been a while since I researched this, but my recollection is that aiding and abetting breaks down into a mens rea of intent/purpose and a very minimal acts requirement. Remember Wilcox v. Jeffery, the English case where the defendant was convicted of aiding and abetting because he bought a single ticket to a jazz concert. It’s pretty clear that the court is not engaging in a serious counterfactual analysis.
Were I the defense attorney, I would go after the mental element.
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November 4, 2009, 12:36 amShelbyC says:
How about people encouraging, say, public gay kissing in defiance of a ban on public gay kissing?
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November 4, 2009, 12:40 amArrowSmith says:
Name me the ban on gay public kissing anywhere in the Union.
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November 4, 2009, 12:44 amShelbyC says:
Wanna fight the hypo, eh? OK, how ’bout a doctor saying that a little mj will make some of those chemo symptoms go away, especially in a jurisdiction that doesn’t allow medical use? Or a better question: If you believe the results of breaking the law will be positive, is saying so “encouraging” someone to break the law?
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November 4, 2009, 1:33 amBama 1L says:
This is a trick, right? The Katyn massacre was the work of the Soviet NKVD.
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November 4, 2009, 1:59 amIgnoto Fiorentino says:
I was also surprised to see Oren make an argument that turned on the distinction between “aiding” and “abetting.” Like Jake, I had always understood “aid and abet” to be a stock legal doublet, like “null and void” and “goods and chattels,” consisting of one synonym of French derivation and another of English derivation, reflecting the bilingual nature of medieval common-law culture. So I’d also be interested in seeing a citation to a case that distinguished them.
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November 4, 2009, 7:14 amEinhverfr says:
Orin:
Is this a strict common law analysis? Would there be any bar to criminalizing such cheering on. Certainly it seems easy to argue that this is INTENDED to produce imminent lawless action, and one could clearly argue it would be LIKELY to as well. Is there any reason that such a law couldn’t be easily enacted?
Since cheering on criminals is not new (there was apparently a lot of this going on durng prohibition), I would think a lack of cases would indicate that your analysis is correct.
Jake:
I would expect buying a jazz concert ticket that was used in a crime would be an act distinguishable from a pure speech issue such as cheering on booze runners during prohibition as they tried to escape the police (something I understand to be a reasonably common occurrence).
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November 4, 2009, 11:16 amJake (guest) says:
Ignoto Fiorentino: thank you for the superior examples. I suppose another would be the duty of good faith and fair dealing.
Einhverfr: I apologize, I was unclear. The jazz concert in question was held in violation of an immigration law, the purchase of the ticket was held to aid and abet the performance. It wasn’t used to commit some further crime (i.e. the ticket wasn’t resold to a notorious pickpocket or anything). Obviously, it’s hard to argue with a straight face that the purchase of a single ticket was the cause in fact of the concert. It’s a pretty close analogy to cheering. There is the financial support element (which I would imagine makes things easier to prove), but it’s pretty trivial.
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November 4, 2009, 11:30 amKRS says:
In Brandenburg v. Ohio, 395 U.S. 444 (1969), the SC ruled that a KKK rally out in the woods, with much inflammatory speech but no resulting violence, was protected from prosecution by the First Amendment. Conversely, encouragement that arguably made the beating more serious should not be protected from prosecution for incitement.
Conspiracy liability should also be possible. Or is there a problem that the conspiracy wasn’t entered into before the beating started.
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November 4, 2009, 11:31 amChrisTS says:
I’m a legal philosopher. It’s my gig. :-)
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November 4, 2009, 4:38 pmChrisTS says:
Splunge:
Just quickly for the moment: How about laws against rape? If people were normal and decent, we would not need such laws. Most of us do not commit rape because we believe it to be wrong. Still we have laws against rape — laws which are imperfectly effective.
I think once we have a society in which the number of not-normal/decent folks rises to a certain level, it is wise to have the law take a stand against the behavior in question.
The last would largely be the gist of my response to Hattio as well. At the same time, I think it is not an accident that we have come to have a society in which such indifference, even pleasure-taking, in criminal impositions of harm on others occurs with any frequency.
I don’t think the law is the only educational tool we have, by any means. But I think we have reached the point at which our ingrained hositlity to crimes of omission merits review.
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November 4, 2009, 4:50 pmRich Rostrom says:
an “aider and abbettor” must aid and abet, not merely abet.
A defense raised long ago by the Snark (as dreamed by the Banker):
“In the matter of Treason the pig would appear
To have aided, but scarcely abetted...”
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November 4, 2009, 5:18 pmPintler says:
As one philosopher to another, I would opine that having the law take a stand becomes ineffective at a fairly low level of popular resistance. Laws against rape work because almost everyone supports them, while Prohibition I and II are failures because of insufficient popular support.
Does anyone know what percent of the population supports legalization of crack? As a complete SWAG I’d guess a single digit percentage overall, but that is enough that the legal campaign against it isn’t working (in the sense that it is probably available to almost everyone who wants to use it).
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November 4, 2009, 6:25 pmChrisTS says:
Pintler:
Hail, fellow philosopher!
I think you are correct, but I have never seen any data suggesting that many people do oppose ‘bad Samaritan’ liability.
My own SWAG is that most people are horrified when they hear that someone watched a crime and did nothing — much less egged on the criminal. I know my students are always astonished when we cover criminal omissions [or the lack thereof].
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November 4, 2009, 7:34 pmChrisTS says:
Splunge and ShelbyC:
You both offer hypothetical cases that would not be covered by my oh-so-carefully-crafted law (overlooking the bizarre repetition of ‘encourage’ or its cognates three times in one sentence).
The kind of liability I suggested would be restricted to witnessing a crime. This would not include cheering on someone at a rally who shouts at the President, even if the former does turn out to be a loony with a gun in his car.
Further, I would limit this to witnessing a violent crime — not just any act that happens to be against the law at a given moment in history.
It is the failure to notify anyone when seeing another citizen being violently attacked that I think crosses the threshold.
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November 4, 2009, 7:40 pmLargo says:
How about taking obvious pleasure in seeing the progression of the criminal act? Laughter? An approving smile?
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November 5, 2009, 12:24 pm