Guilt Without Pulling the Trigger

Kenneth Reams, The Last Mile (pencil drawing on paper, from deathrow)
Kenneth Reams, The Last Mile (pencil drawing on paper, from death row)


Our criminal laws sometimes subvert justice while wasting both human lives and taxpayer money. Laws that throw the book at people who are only minimally involved in crimes are a prime example. But our criminal laws are structured to do just that, through the law of accountability. The accountability doctrine says that if you in any way help someone commit a crime, then you should be punished as if it was you yourself who committed the crime. This means that if someone aids (or even tries to aid) a crime (or even the planning of a crime), he should be punished as if he were the one who pulled the trigger, mugged the victim, stole the merchandise, etc. In the abstract, this may sound like a good way to discourage people from helping others commit crimes. But when you hear about some of the unfair results, you realize that the law of accountability is too rigid.

First, there is the issue of what it means to aid and abet a crime. With accountability, there’s no distinction made for the level of participation. So sometimes participation means truly culpable conduct, like being the crime’s mastermind or handing the murderer the gun. But often accountability means a serious criminal conviction for far more casual conduct, like pointing out the drug dealer when asked or offering encouraging words when hearing about a dubious plan. Both can lead to accountability and criminal punishment as if the “accomplice” were the one who actually committed the crime.

Then, there’s the issue that an accomplice can be held liable not just for the crime itself, but also for any injury or offense that was a “natural and probable consequence” of the original crime aided and abetted. This can make for wildly disproportionate criminal liability, where relatively trivial conduct causes huge liability and prison sentences. For instance, I represented a teenager named Anthony who was a good kid, but lived in a rough neighborhood where he often had to fend for himself while his mother worked. One afternoon, he was catching a ride to his basketball game, when the older boys giving him a ride told him that they were stopping to buy drugs. They left Anthony in the backseat of the car and told him to “watch for trouble” while they went to buy their drugs. The deal went awry and someone was shot. Tragically, the law of accountability allowed Anthony to be successfully prosecuted for first degree murder and sentenced to twenty years’ incarceration, as if he himself had pulled the trigger instead of being the scared kid waiting in the back of a car for his ride to the game.

And sometimes the law of accountability yields out of synch results where only the accomplice gets convicted for the offense, or the accomplice ends up with a higher sentence for the crime than the actual offender. For example, consider Kenneth Reams. New York Times editorial cartoonist Patrick Chappatte recently published How to Get on Death Row Without Firing a Bullet a powerful comic-styled story depicting Reams’ journey to becoming Arkansas’ youngest death row inmate.  When teenaged Reams and his friend robbed someone at an A.T.M., the friend shot and killed the victim. But because Reams chose to go to trial instead of pleading guilty, he received a death sentence, while the actual shooter received a lesser sentence. Reams has been in solitary confinement, alone in a 6’ x 9’ cell for 23 hours per day since 1993. The justice system has written him off. Nevertheless, from death row Reams has shared art and poetry for the powerful exhibit Windows on Death Row: Art from Inside and Outside the Prison Walls and has also started the not-for-profit organization Who Decides, a group of activists dedicated to educating the general public about the practice and history of capital punishment in the United States. Men like Reams force us to question a system where a teenaged accomplice can be punished more severely than the man who committed the crime.

The laws need to be changed so that a legal distinction can be made based on an accomplice’s actual level of participation in an offense. But this is an issue where it’s far too easy not to care – after all, people found guilty by accountability are invariably hanging out with the wrong crowd, putting themselves in the wrong place, or taking part in a criminal act. Yet care we must. Our society must stop over-charging for crimes, which is part of the cause of over-incarceration. Changing the laws of accountability would help with that goal, while adding more justice to the system.




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