Looper is a pretty great movie. The story, acting, music, and effects are all top notch. While watching it this weekend, a couple of legal issues came to mind. This post ran a little long, so there will be a second Looper post later this week. There are some spoilers ahead, but I’ve tried to self-censor the most significant ones.
The movie’s premise is that time travel will be invented around 2074, whereupon it will be outlawed. The only groups to continue using it will be organized crime, who use it to commit untraceable murder. The victim is gagged, hooded, and bound, then sent 30 years into the past, where a person (a Looper) waits to shoot them as soon as they arrive, then dispose of the body. The Looper’s payment comes in the form of silver bricks sent back with the victim. The Loopers that we see in the film do not receive messages directly from the future. Instead, they are directed by a mobster from the future, Abe, who presumably does get such messages (e.g. when and where a Looper should be in order to take care of the next victim). There are more details, but I won’t spoil them. That’s enough for our purposes.
The benefits of this scheme are many. It leaves very little physical evidence in the future, and the murder itself occurs in the fairly remote past. The first question that occurs is this: are the future mobsters criminally liable for the murder of the victims, or are they only liable for something like assault and kidnapping?
The mobsters don’t pull the trigger, so they aren’t liable as principals. That leaves three major theories of liability: solicitation, accomplice liability, and conspiracy.
Solicitation is defined in the Model Penal Code § 5.02 thus:
A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission.
If the crime is completed then the solicitor is guilty of the underlying crime. If the person solicited agrees, tries to commit the crime, and fails, then the two are guilty of the attempted crime. If the person agrees but does not attempt the crime, then the two are guilty of conspiracy. If the person agrees, then the solicitor is guilty of solicitation. As a nice bonus, under the Model Penal Code definition at least, the solicitation does not have to be an explicit communication:
It is immaterial … that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication.
Thus merely sending the victims back in time with the money could be seen as “conduct designed to effect such communication.”
Solicitation seems like a good bet, but it’s complicated by the fact that the future mobsters aren’t asking the Loopers directly. Instead, they send messages to Abe, who then directly solicits the Loopers. Is that enough? As you would probably expect, the answer is yes. “[I]t would be criminal for one person to solicit another to in turn solicit a third party.” Wayne R. LaFave, Substantive Criminal Law § 11.1. The case of Com. v. Wolcott is instructive:
Thus, if Jamroz had acceded to the defendant’s request and had found someone else to murder the defendant’s husband, and that person had in turn personally killed her husband, Jamroz would have been indictable for a felony. Whether the defendant solicited Jamroz to personally kill her husband or to find another to do so is thus of no consequence. Either act constitutes a felony, and under either fact pattern, the defendant would be guilty of soliciting a felony.
931 N.E.2d 1025, 1033 (App. Ct. Mass. 2010). So even though the solicitation is a little circuitous, the future mobsters would ultimately be guilty of soliciting the murders and thus liable for any murders that occur.
But of course not all of the future mobsters actually ask for Abe to ask the Loopers to kill someone. Some of them merely kidnap the victims or wrangle them into the time machine. What of them?
II. Accomplice Liability
Accomplice liability can be produced in several ways. Some of the most common are aiding, abetting, or encouraging the commission of a crime. Binding and gagging a victim, sending them to a remote location expecting they will be murdered there, and sending back money to pay the killer are all examples. So the low-level future mobsters that do the dirty work would also be liable for the murders.
Finally we have conspiracy, which has features that make it distinct from solicitation or being an accomplice. Perhaps the biggest one is that it is a separate crime. Solicitation “merges” with the underlying offense; it is only a separate crime if the person being solicited never agrees to commit the crime. And accomplice liability is only a theory of liability, not a crime in itself. By contrast, conspiracy is its own crime and it does not merge with the underlying offense. The usual reason for this is that conspiracies are a serious criminal problem because two or more people are more likely to actually go through with a crime and they can cause far more harm than a single person acting alone.
Basically, conspiracy requires two or more people agreeing to commit an unlawful act. Some jurisdictions also require that at least some overt act be committed towards that unlawful purpose. In this case, we have the future mobsters agreeing with Abe to commit murder by hiring Loopers and we have Abe agreeing with the Loopers to commit murder. Since the future mobsters know that Abe will hire Loopers, and the Loopers know where Abe’s orders come from, this is a “chain”-style conspiracy in which all three groups are liable as part of a single conspiracy. That the people on either end don’t know each other’s specific identities doesn’t matter. This approach is often used in drug cases, where the prosecution alleges a conspiracy between importers, distributors, and retailers. “It is sufficient in a ‘drug-chain conspiracy’ to show that each member of the conspiracy realized that he was participating in a joint venture, even if he did not know the identities of every other member, or was not involved in all of the activities in furtherance of the conspiracy.” U.S. v. Price, 258 F.3d 539, 545 (6th Cir. 2001).
Pretty much any way you slice it, everybody involved in the scheme is liable for the murders ultimately committed by the Loopers. Even if there were no middlemen and the Looper scheme had sort of evolved organically as an implicit understanding between the future mobsters and the Loopers, it’s still possible to find liability through solicitation and accomplice liability. So in this case at least, time travel does not create any major legal loopholes.