In a prior piece in this journal, I noted some disturbing developments in the law of accomplice liability. By definition, complicity law attaches guilt to the accomplice for the criminal acts of others. Thus, no matter how trivial the assistance or commitment, she is as guilty as the actual criminal actor. The notion of guilt for subsequent crimes committed by confederates magnifies this injustice, resulting in the conviction of the innocent through the deployment of some version of the “natural and probable consequences doctrine.” The application of that doctrine results in her conviction for all subsequent offenses, provided they meet the criteria for natural and probable. Unfortunately, since no functional criteria exist, it provides a form of absolute, vicarious liability, dispensing with any requirement for personal conduct or culpability.
That prior piece noted the strengthening, even expansion, of that doctrine through recent case law. Worse, it is now enshrined in the statutes of Illinois, capturing it as the doctrine of “common design.” Though in utter conflict with other relevant statutory provisions, its robust survival attests to its traction, and its codification appears to forestall future attacks. So, too, for the dozens of versions of that doctrine existing among the states, usually parading under that rubric of natural and probable.
However, relief may come from a two-pronged Due Process challenge. First, Due Process clearly requires proof of guilt beyond a reasonable doubt. Worse than conclusive presumptions of guilt, “common design” and its siblings attach guilt without any proof at all. It’s automatic, once satisfied. Moreover, these notions also fail because void for vagueness. There’s nothing meaningful to satisfy. Not reducible to any workable decisional rules, they provide unfettered discretion throughout the system for standardless, arbitrary accusations and convictions.