Document Type

Article

Publication Date

Summer 2023

Publication Citation

55 Arizona State Law Journal 431

Abstract

The “hard cases” for the law relating to accomplices deal with the definition of what counts as aiding and abetting a crime. A retailer might sell a murder weapon in the ordinary course of business, while an accomplice might do nothing because their help was simply not needed. How do we distinguish between these cases? The Capitol Riot is a striking example of this sort of hard case because there were so many people involved in so many different and ambiguous ways. Outside of the conceptually easy cases of someone caught on camera making off with property or attacking officers, who should be found guilty of what? A lack of a rubric for answering these questions makes collective crimes like the Capitol Riot especially challenging for the law.

Drawing on philosophy of action and game-theoretic reasoning, we develop a novel model of complicity built on the concept of standing in reserve and show how it helps to understand joint intention and responsibility in complex social situations, such as those where only a proper subset of participants may actively engage in the primary criminal act. This model of complicity is consistent with the fundamental normative commitments of criminal law, such as the central importance of mens rea and punishing only intentional actions. Standing in reserve thus offers a principled, coherent approach to identifying complicity in these hard cases.

Through a series of applications, we show how the standing in reserve model sheds light on the Capitol Riot as well as related controversies including guilt by association, terrorism, and felony murder.

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