Moriarty on Reckless Encouragement to Reckless Wrongdoers

Daniel Moriarty (Albany Law School) has posted Dumb & Dumber: Reckless Encouragement to Reckless Wrongdoers on SSRN. Here is the abstract:

This paper deals with compound negligence, i.e., situations in which one person’s heedlessness helps another to commit a negligent offense. The conviction of the second party who actually commits the offense poses no unique problem; offenses committable through criminal negligence, such as involuntary manslaughter, are routinely available in every jurisdiction. But conviction of the first party who negligently provided the means or opportunity for the second party’s unreasonable behavior poses significant problems. Accomplice liability is unavailable as complicity requires an intention to aid another, which is absent in such cases. Causation might be tried, but the second party’s criminal negligence is apt to be considered an intervening, superseding cause. Reckless Endangerment, an offense pioneered by the Model Penal Code, may well be available in most States (60%), but by no means all, and where available is generally graded as a misdemeanor only, with a maximum imposable prison term of about a year. This paper argues that in many cases such a relatively minor grading is disproportional to the harm committed, such as death or serious physical injury, and proposes a new statute to address the area. Special problems considered in drafting the proposed statute include the degree of aid that ought to be sufficient for liability, the type and degree of harms that should be covered, and the mens rea that should be required, i.e., in Model Penal Code terms, either recklessness or negligence. Several unfortunate instances serve as case studies.