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Abstract: In every American jurisdiction, accomplice liability is “derivative” in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states as well as cases where the principal’s conduct is causally efficacious but the accomplice’s is not.
American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory’s liability was wholly derivative of the principal’s, now most jurisdictions judge the accomplice by her own affirmative defenses and mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus.
This Article urges the law to complete the process of doctrinal evolution by abolishing derivative liability for accomplices. In some cases, judging the accomplice by her own actus reus and mens rea would not change the outcome because the accomplice’s actus reus and mens rea constitute the same type of crime as the principal’s. In the remaining cases, judging the accomplice by her own actus reus and mens rea would change the outcome for the better.
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