Felony Guilt or Lesser Offense

Felony Guilt or Lesser Offense

Sorting an actor into one of the four categories the common law recognized (principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact) tells you who the actor was, and the next question is what that actor is guilty of.¹ The answer divides the four along the same timeline used for classification. Those whose help came before or during the felony, from the person at the scene to the absent planner, answer for the felony itself, while the person who acts only afterward answers for a different and lesser offense. The dividing line follows contribution to the crime. A helper before or during the felony adds to the wrong while it is being done and so shares the principal's responsibility for it. A helper after the felony adds nothing to a crime that is already complete and instead interferes with the machinery of justice, which is a separate wrong that carries its own, lighter penalty. The next two sections take the answers in turn, beginning with the three statuses that carry guilt for the target felony and then turning to the accessory after the fact.

Guilt of the Target Felony

Three of the four common-law statuses lead to the same result: the actor is guilty of the target felony itself. The principal in the first degree who commits a robbery, the principal in the second degree who helps while it happens, and the accessory before the fact who helped from a distance are all convicted of robbery, and not of some lesser offense named for a supporting role.² The common-law classification sorted the parties by when and where they helped. Once the procedural obstacles that surrounded those labels were overcome, a person in any of these three categories could be convicted and given the penalties authorized for the felony.³ The sorting done in the last section therefore decides what an actor is called and leaves untouched what the actor is convicted of.⁴

Punishment follows the conviction. In State v. Williamson a Maryland court found the evidence sufficient to make a wife an accessory before the fact to her husband's murder. In discussing what that status meant, the court observed that at common law the classification carried significance even though the conviction was for the crime itself and the punishment was the same as for a principal.⁵ Even the line between the two kinds of principal changed nothing about the sentence, because there was never a difference in penalty between a first-degree and a second-degree principal.⁶

Two reasons support convicting the helper of the felony rather than of a free-standing offense of assisting. The first concerns where the helper's blame comes from. A lookout or a getaway driver adds to the very harm the perpetrator inflicts, so the victim of a robbery has been robbed by the combined effort of everyone who played a part, and a separate lesser crime would rate each helper's wrong below the harm the helper helped bring about. The second reason is an incentive. The absent organizer is frequently the brains of the operation, and a lighter, separate offense for the person who stays away would give planners a reason to keep out of sight when the crime occurs, which is exactly the person the law most wants to reach.⁷ The usual error is to treat the absent planner as guilty of a lesser crime of assisting, when the planner is guilty of the felony.

Because the helper answers for the principal's felony, the helper's liability is derivative, meaning that it takes its existence from someone else's violation of law. If no one commits the felony, there is no felony for anyone to be guilty of as a helper, so the prosecution must prove that some principal committed the crime.⁸ Derivative liability is still personal, because the helper incurs it through the helper's own contribution, and accessorial liability is a way of committing the substantive offense rather than a distinct crime.⁹ Vicarious liability would differ on exactly this point, since it holds a person responsible for another's act because of a relationship such as employer and employee, without asking whether the person contributed anything.

The getaway driver in a bank robbery shows the rule operating in the middle position. A driver who waits outside under the robbers' plan is constructively present and so a principal in the second degree, and the robbery charge reaches the driver directly.¹⁰ Enmund v. Florida shows how much weight the principal label carries. The Florida Supreme Court found support in the record only for the inference that Enmund sat in a car beside the road, a few hundred feet from the victims' home, waiting to help the robbers escape. Under Florida law that made him a constructive aider and abettor, and so a principal in first-degree murder.¹¹ Florida treated a present aider and abettor as equally guilty with the actual perpetrator.¹² The United States Supreme Court later held that the death penalty could not be imposed on a participant who neither took life, attempted to take life, nor intended to take life.¹³ That holding limits the sentence a state may impose. It does not change the point here, which is that the principal label fixed the offense for which he stood convicted.

The guilt that attaches to a helper is also personal to the helper, and a defense of the helper's own can remove it. In the bank robbery Linda commits, Olga puts the cash into a bag only because Linda threatens her with imminent deadly force. Olga's help is intentional and physically the same as an accomplice's, but if duress succeeds she is an innocent agent and cannot be convicted as an accomplice, and if it fails she may be convicted as one.¹⁴ The same act of bagging the money thus produces guilt of the robbery for a willing helper and no accomplice guilt for a coerced one, which confirms that the helper's guilt rests on the helper's own culpable contribution.

The label still mattered procedurally even though the conviction and the punishment were for the felony itself, and the sections on procedure below explain how. First, the one status that does not carry this guilt needs its own treatment in the next section.

A Separate Lesser Offense

The previous section put three of the four common-law statuses on the same footing, each guilty of the target felony itself. The accessory after the fact stands apart from them. An accessory after the fact is a person who, knowing that a felony has been committed, helps the principal avoid arrest, prosecution, or conviction.¹⁷ Because that help begins only after the felony is complete, the helper added nothing to the robbery or murder while it was happening, and the helper is therefore not a party to the felony.¹⁸ The accessory after the fact is not guilty of the target felony. The helper answers instead for a separate, lesser offense of interfering with the machinery of justice, which modern law labels with names such as obstructing justice, harboring a felon, or rendering criminal assistance.¹⁹

The reasoning has two parts, and each explains a different feature of the rule. The first concerns what the helper is blamed for. The other three statuses each contributed to the felony before or while it happened, so each shares responsibility for the harm it produced. The accessory after the fact had no part in causing the crime, and a conviction for the felony itself would punish the helper for a harm the helper did not help bring about.²⁰ The second part concerns what the helper actually did wrong. Hiding a felon, lying to investigators, or supplying an escape route makes arrest and conviction harder, and that injury lands on the justice system. A penalty fitted to that wrong is a penalty for obstruction, which is why the offense carries its own and lighter punishment.²¹

The history shows the same reasoning at work as a problem followed by a response. In the earliest view the post-crime helper was treated as an accomplice in the felony and so exposed to the felony's punishment, along with the procedural difficulties that came with that classification.²² It was later recognized that a person whose involvement began only after the felony was finished was not truly an accomplice, and a statute in England made post-crime aid a separate, lesser offense.²³ Almost all American jurisdictions followed by prescribing penalties for the accessory after the fact without reference to the penalty attached to the principal offense.²⁴ Modern codes keep that design, so the accessory after the fact is still charged under a separate offense with its own penalty, whatever substantive crime the principal committed, while the other parties are charged with the substantive crime itself.²⁵

For punishment, the consequence is that the helper's sentence is detached from the seriousness of the principal's crime. A person who shelters a murderer and a person who shelters a burglar are each charged under the offense that defines their own conduct, and the statute for that offense fixes the range, not the statute for murder or burglary.²⁶ The helper's offense is lighter than the principal's, so accessories after the fact are punished less severely than principals, even though the helper's liability still depends on the principal's guilt, because a felon must have committed a felony before anyone can help that felon afterward.²⁷ The usual error is to reason that a helper who aids a murderer must be punished for the felony itself, when the helper's exposure is set by a separate offense.

Being a separate offense also changes how the procedural reforms apply. A defendant who aided a principal before or during the felony may now be charged as if a principal and convicted on proof of that aid, because a charge of the substantive crime tells the defendant to meet evidence of participation. A conviction as an accessory after the fact cannot rest on an indictment that charges only the principal crime, because that charge gives no notice that the defendant must answer evidence of help given after the felony was done.²⁸

Two situations remove even the lesser offense, and both show how closely the common law confined it. The first is family. At common law one class was excused from liability as accessories after the fact: wives did not become accessories by aiding their husbands.²⁹ The authorities differ on the reverse case. One account says that no other relationship, husband to wife included, qualified for the exemption, and another treats spouses as protected in both directions.³⁰ The reason for the exemption is that spouses were expected to help one another, so the law treated the help as an excuse rather than a crime.³¹ The same assumption, that a threat of punishment cannot realistically deter people from helping those closest to them, later led many states to extend the exemption to parents, children, and other close relatives.³² Other jurisdictions have dropped any family exemption and prosecute relatives for rendering criminal assistance, sometimes at a reduced degree for certain kinds of help, so a modern fact pattern calls for the local statute and not an assumption that the common-law shelter survives.³³

The second situation is the grade of the underlying crime. The four-part classification existed only for felonies. In a misdemeanor, those who helped before or during the crime were all treated as principals, but there was no accessory after the fact, because aid given to a misdemeanant after the crime was not criminal.³⁴ Without a statute saying otherwise, a person does not become an accessory after the fact by giving aid to a misdemeanant.³⁵ The offense punishes interference with the prosecution of serious crime, and the common law tied it to the felony and left helpers of lesser offenders outside it.

With guilt and punishment settled for all four statuses, the remaining question is how the labels shaped the way a prosecution had to be brought, which the next section takes up.