Re: Committing the Crime without Committing the Crime

While it's true that intent is "one of the bedrocks of American criminal law," I'm not so sure that accomplice/conspirator liability and felony murder are perversions of this "no intent, no crime" rule, as much as they are direct challenges to it. Why, exactly, should someone's intent determine whether criminal liability is appropriate?

The way I see it, subjective intent is just a somewhat effective proxy for likelihood of harm. Someone who intends to commit a harmful act is (obviously) very likely to create that harm and is punished the most severely. Someone who is acting recklessly has created a probability of harm that is lower than if they were acting intentionally, but still high enough that sanctions are enforced. Finally, someone who harms another through a freak accident isn't punished at all, because the likelihood of harm was miniscule. Viewed through this lens, intent isn't a prerequisite for a crime, but a way to measure the likely consequence of one's action.

And likelihood of harm is, like intent, a cornerstone of the law. The law punishes certain acts simply because they increased the likelihood of harm, without any regard for outcome (or intent) -- drunk driving is a crime even if you don't hit anyone or anything, and so is using a gun in a robbery (even if nobody is shot, it is still punished more heavily than an un-armed robbery). Secondary liability is justified under the same rationale, because one's participation in a criminal scheme greatly increases the likelihood of harm (even though intent for a specific crime might not exist). Not only are more people able to commit greater and more organized crimes, psychological studies have shown that people in groups are more likely to take risks and engage in extreme behaviors than those who act alone. The liability that attaches to groups is therefore appropriate, as being a member of a criminal conspiracy makes the whole enterprise that much more dangerous.

Now, in the case that the articles cites, it's true that loaning a friend a car is obviously not particularly likely to cause harm. However, loaning a friend a car for a robbery is significantly more dangerous -- even though the person loaning the car didn't know that anyone would get hurt, there was still a strong possibility that the robbery could turn violent. If the case in question is troubling, it seems that is less because his actions exposed him to criminal liability and more because his sentence (life) seems unduly harsh for his role in the crime.

The problem with sentencing these crimes is that the crime is partially based on the probability of harm, while the punishment is based on the actuality of harm; as far as liability is concerned, the victim, a la Schroedinger's Cat, is in a quantum state of both harmed and unharmed, but by the time sentencing occurs the waveform has collapsed and there either is or isn't a victim. It would seem that rather than scrapping the system of secondary liability -- which correctly assesses the dangers inherent in group crimes -- we need to take a long look at how these kinds of crimes should be punished.