Girgis on the Mens Rea of Complicity

Sherif Girgis, known to readers of Mirror of Justice for his scholarly contributions in other contexts, has published an extremely interesting note proposing a new view of the mens rea of accomplice liability. Rather than focusing on the accomplice's state of mind as to the principal's offense, Girgis argues that one should focus on the accomplice's state of mind as to the principal's state of mind. To put it in concrete terms, if Cassius sells Brutus a knife and Brutus kills Caesar with the knife, then in order to convict Cassius as an accomplice, we ought not to focus on the degree to which Cassius knew or intended that Brutus would kill Caesar with the knife, but instead on Cassius's investment in Brutus's intention (not in Brutus's act) to kill Caesar. For Girgis, this would allow us, for example, to convict Cassius of accomplice liability if he drives Brutus's getaway chariot, having gotten his payment for doing so up front. It would justify accomplice liability whether or not Brutus was ultimately successful in killing Caesar. It's Cassius's disposition toward Brutus's intention, not Cassius's disposition toward Brutus's act, that makes the difference in Girgis's account. "So we can infer that Cassius at some point stands ready to promote Brutus’s intention—to get him to stick to the plan, if he starts to waver."

It's a very interesting approach, and one that, as Girgis rightly notes, ought to be of particular interest to those that recognize retributivism as a legitimate penological function (Girgis does not defend accomplice liability on any specific ground--his aim in this paper is to explore the mens rea of complicity). One question I had concerns the mens rea of knowledge. Girgis writes that accomplice liability for knowledge alone picks up too many cases in which we would not want to assign liability, while accomplice liability for purpose to accomplish the malign end is too demanding. I agree with the latter view. But I can imagine situations in which knowledge might shade into the sort of culpable state of mind as to the principal's intent that matters to Girgis. Suppose a gun salesman knows that it is extremely likely (bordering on certain) that the guns he sells will be used by the purchasers to kill members of rival gangs. And suppose further that nearly all of the gun salesman's revenue comes from selling these guns to these purchasers. Couldn't we say that at that point, the gun salesman's stance as to the purchasers' state of mind is culpable--that he "intends" the purchasers' "guilty minds"? I suppose it might depend on the level of specificity that we require as to the victim (killing X vs. killing unspecified members of rival gangs). But if we could say that, then it seems that we would need a graduated approach to the mens rea of knowledge in these kinds of cases (I think Girgis alludes to something like this at 477). At any rate, read the piece.