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Publication Date

10-4-2026

Abstract

In recent years, criminal prosecutors have pursued homicide charges against the parents of teenaged school shooters. Two high-profile cases—one from Michigan and one from Georgia—provide paradigmatic examples. In each case, the parents provided their children with weapons and ammunition despite obvious signs of each child’s dangerousness and instability. Criminal liability for such reckless conduct is appropriate. But homicide charges are not. This Article critiques this new trend in prosecutions as distorting the substantive criminal law to obtain an outcome that is otherwise unavailable without criminal code reform.

It is a long-held criminal law tenet that intentional wrongful conduct by one party—such as a school shooter—severs the chain of causation that might otherwise tie earlier wrongdoing—such as the provision of weapons— to prohibited results. In order to seek convictions against the parents of school shooters, prosecutors and judges have been discarding this foundational tenet of criminal causation and replacing it with a tort-like assessment of simple foreseeability. This distorts the substantive criminal law in dangerous ways, radically expanding the number of people and types of acts that can be said to have caused the deaths in question, misattributing blame, producing punishment out of proportion to culpability, and undermining the criminal law’s commitment to free will.

Meanwhile, more appropriate theories of liability, such as accomplice liability, are foreclosed by strict mens rea requirements that do not reflect the parents’ wrongful acts in these cases. Prosecutors thus find themselves stuck between pursuing inappropriate charges and taking no action at all.

To forestall any further corruption of the criminal law’s causation doctrines, and to more accurately sanction the parents’ problematic conduct, this Article calls for the creation of a new class of accomplice liability: reckless accomplices. A reckless accomplice is one who is aware of a substantial and unjustifiable risk that their actions will materially facilitate another’s criminal wrongdoing. Importantly, unlike traditional accomplices, who share a criminal purpose with the perpetrator, reckless accomplices would not be liable for the crimes they facilitated. Rather, legislators should create a standalone crime with punishment statutorily cabined to reflect the accomplice’s individual contribution to the crime. In most cases, this would be a small fraction of the punishment authorized for the principal offender. Criminalizing reckless accomplices in this manner would provide a relief valve for our punitive instincts in the wake of sensational tragedies, without the overcriminalization and overpunishment that attend homicide prosecutions. And it may, more broadly, invite us to reconsider the derivative nature of accomplice liability generally, which holds accomplices responsible for harm that is more properly attributable to the acts of others.

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