Can AI Ever Be a Criminal Actor?
Introduction: From Tool to “Actor”?
As artificial intelligence (AI) systems become more autonomous, a pressing question arises in criminal law theory: can AI ever be considered a true criminal actor?
Self-learning algorithms, autonomous vehicles, robotic surgeons, and decision-making systems in finance and defense increasingly act with minimal human intervention. When such systems cause harm — sometimes in ways not anticipated by their creators — the boundaries between “tool” and “actor” seem to blur. This article examines whether AI can, or should, be recognized as a criminal actor, and what this would mean for the foundations of criminal law.
1. What Does It Mean to Be a Criminal Actor?
Criminal law does not punish events; it punishes actors who are blameworthy for prohibited conduct. Traditionally, a criminal actor is:
- A natural person with consciousness and free will,
- Capable of forming mens rea (intent, knowledge, recklessness, or negligence),
- Someone who can understand norms, foresee consequences, and respond to sanctions.
Even when legal persons (such as corporations) are held criminally liable, the law still presupposes underlying human decision-making within the organization. Extending this category to AI requires us to ask: does AI satisfy any of these criteria in a meaningful way?
2. The Case for AI as a Possible Criminal Actor
Some scholars argue that, under certain conditions, advanced autonomous AI systems might be treated as criminal actors. Their arguments usually rely on three pillars:
2.1. Functional Autonomy
Modern AI systems can:
- Operate without direct, real-time human control,
- Take decisions in complex, changing environments,
- Adapt their behavior based on feedback and data.
From a functional perspective, AI can behave like an actor: it initiates actions, makes choices between alternatives, and influences the world. Proponents argue that if the law focuses on behavior and risk, rather than metaphysical free will, AI could be seen as an actor.
2.2. Predictable Patterns and “Machine Intent”
AI does not have intentions in the human psychological sense, but it does pursue optimization goals encoded in its design (e.g., maximize accuracy, minimize loss). Some suggest that this goal-directed behavior may be conceptualized as a form of “machine intent”, sufficient for legal purposes if:
- The system consistently behaves in a certain way,
- Its “choices” are not random but structured,
- It can be said to “prefer” some outcomes over others according to its programming.
Under this view, the law could adopt a fictional or functional concept of intent, similar to how it treats corporate intent.
2.3. Electronic Personhood and Liability Funds
There are proposals to grant certain highly autonomous systems a limited electronic personhood, allowing them to:
- Own assets in a liability fund,
- Be registered and monitored,
- Be “punished” through deactivation or operational restrictions.
This would not make AI human, but would treat it as a legal construct capable of bearing some responsibility, easing compensation and risk allocation in complex AI environments.
3. The Case Against AI as a Criminal Actor
Despite these proposals, there are strong objections to treating AI as a genuine criminal actor.
3.1. Lack of Consciousness and Moral Agency
Criminal law, especially in its retributive dimension, presupposes:
- A subject who can understand norms,
- Experience guilt, shame, or fear of punishment,
- Reflect morally on right and wrong.
AI systems lack consciousness, subjective experience, and moral understanding. They perform calculations, not moral judgments. For many theorists, this makes genuine culpability impossible, which in turn undermines the legitimacy of punishment.
3.2. Sanctions Lose Their Meaning
If AI cannot suffer or morally appreciate punishment, criminal sanctions become purely instrumental:
- Deactivating the system,
- Restricting its functions,
- Modifying its code.
But all of these are ultimately actions taken by human agents. Punishing AI in this sense might hide human responsibility and provide an illusion of accountability while the real decision-makers remain in the background.
3.3. Risk of Diluting Human Responsibility
Recognizing AI as a criminal actor could:
- Allow companies and developers to deflect blame onto “the algorithm”,
- Fragment responsibility across technical and legal entities,
- Undermine incentives to design and deploy AI responsibly.
Instead of clarifying liability, this might weaken human accountability, which is precisely what criminal law seeks to enforce.
4. Alternative Approaches: Humans Behind the Machine
Given these difficulties, many argue that AI should not be treated as a criminal actor, but that criminal law must adapt to capture human responsibility in AI-driven environments.
4.1. Focusing on Developers and Operators
Criminal law could focus on:
- Developers who recklessly deploy unsafe systems,
- Manufacturers who ignore known risks,
- Operators and users who rely on AI without proper oversight.
Here, AI remains an instrument, even if a very complex and partially unpredictable one. The key questions become:
- Who decided to build and release this system?
- Who knew, or should have known, about its risks?
- Who failed to take reasonable precautions?
4.2. Strengthening Corporate Criminal Liability
Since many AI systems are created and used by corporations, corporate criminal liability is a natural vehicle for addressing AI-related harms. Companies can be punished through:
- Fines,
- Compliance and monitoring obligations,
- Restrictions on certain high-risk AI activities,
- In extreme cases, dissolution.
In practice, this may be more effective and realistic than trying to redefine AI as a criminal subject.
5. Hybrid Solutions: Symbolic “Actor”, Real Human Responsibility
A more nuanced, hybrid approach is also possible. AI systems might be:
- Symbolically treated as actors for the purpose of system-level analysis (e.g., “the AI committed fraud”),
- While legal responsibility is always traced back to identifiable human or corporate agents.
In this model:
- AI is an analytical lens, not a legal person,
- It helps courts understand complex causal chains,
- But does not replace the requirement of a human or legal person as the ultimate bearer of criminal liability.
6. Conclusion: No Criminal Actor Without Moral Agency
So, can AI ever be a criminal actor? In a strict, traditional sense — no. Without consciousness, moral agency, and genuine capacity for culpability, AI cannot satisfy the deeper justifications of criminal punishment.
However, the debate is far from irrelevant. By asking whether AI can be a criminal actor, we are really asking:
- How should we restructure human responsibility in highly automated systems?
- How can we prevent actors from hiding behind algorithms?
- To what extent should designers, corporations, and users be criminally liable for AI-driven harms?
The most defensible future model is one that:
- Keeps humans and corporations at the center of criminal liability,
- Uses AI’s “actor-like” behavior as a descriptive tool,
- And resists the temptation to transform AI into a scapegoat.
In short, AI may look like an actor, but in criminal law, true criminality still belongs to human beings.
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