The Criminal Mind
If you ask a non-lawyer to identify a principle of law, he or she is likely to respond with "Ignorance of the law is no excuse." For much of our history, this would have been a perfectly sensible response. Traditionally, the purpose of the criminal law was the punishment of those who wrongfully caused harm to others, not the regulation of interpersonal affairs. One does not need notice of what the law requires to know that one should not intentionally harm one’s fellow citizen. The mens rea requirement of the criminal law embodies the fundamental principle that punishment requires personal fault.
As legislative bodies have exhausted every possible permutation of malum in se offenses, the ones everyone knows or should know are wrong without having to be told in explicit detail, they have increasingly crafted malum prohibitum to be used as a regulatory framework to control more behavior that isn't inherently wrong, but that they have decided for whatever reason shouldn't be done. These offenses don't necessarily involve any moral fault on the part of the perpetrator, but rather a choice between various options, one or more of which has been denominated a crime.
The concluding paragraph sums up the position nicely:
By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted. There are many things a liberal government may do to improve social welfare. Government may properly ask individual citizens to make significant sacrifices for the common good. However, there are also many things a liberal government may not do. Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them. Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault. Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.
Even amongst lawyers, even criminal defense lawyers, this has become an increasingly troubling issue. Criminal law has become result oriented, to the exclusion of any concern about mens rea. When someone is killed, a crime must have been committed. When someone is harmed, it must be because of a crime. The fact that the conduct was innocent or negligent no longer seems to deter the demand for punishment. It's all about the outcome and that every harm must have a crime to combat it.
Even Doug Berman has difficulty finding this to be too much of a problem:
Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends. What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability.
Of course, this assumes that once criminal law is used to discourage socially undesirable conduct, the slippery slope tends to encourage increasingly harsh penalties if the effect of the law isn't easily achieved. One need look no farther than the draconian War on Drugs to find an example of this affect.
The notion that innocent or negligent behavior should be criminalized is one of the foundational problems as legislatures continue to increase the number of crimes and the volume of human conduct that subjects people to criminal punishment. Rarely does anyone ask whether there is any moral culpability attached to the conduct at stake, and rarely does anyone care whether the crime sweeps in the innocent along with the guilty. We want to stop a result, and we're prepared to take no prisoners in the effort. But crime isn't what comes as a consequence of conduct, but what motivates the conduct in the first place.
This is indeed a development that compels a return to the basics of criminal law, the mens rea requirement. This is not to say that law cannot or should not be used to encourage or discourage behaviors that impact on society. But it is to say that converting otherwise innocent or merely negligent conduct into a crime is not the way to do so.
Trackbacks
-
1/25/2009 9:02 AM
Simple Justice wrote:
Another voice chimed in on the discussion of whether it was advantageous to work both sides of the fence before deciding where to spend the rest of your life, defense or prosecution.
I love this post. Why isn't anything just an accident anymore? Why is it that in every news report about someone getting hurt in a car accident the story ends with "no word whether charges will be filed?"
In Florida the biggest discussion around this issue is in the cases of DUI Manslaughter. Even some hard core prosecutors talk about how troublesome it is that someone goes to prison for 15 years for this, while of course the other side has merit as well. You choose to drive drunk and "happen" to kill someone, you pay the price.
Still, we live in a time where it seems like every "event" has a corresponding criminal case attached. There are no more "mistakes."
Reply to this
I'm very glad you like it Brian. And I'm also happy to see that you got your cap lock fixed between the time you typed in your name and the time you typed in your comment. You must really have some pull with the Geek Squad.
Reply to this
I dunno. I think both of you are just looking for some excuse to spring one of your clients who is caught with a "short lobster," to avoid the social disgrace.
"What are you in for?"
"I'm alleged to have hacked a little old lady to death. Luigi 'Three Fingers' Scungilli, there, well, he was supposedly paying off some building inspector who caught him torching a place. You?"
"Short lobster."
And they all moved away from him on the bench.
Reply to this
"You can get anything you want, at Alice's Restaurant (excepting Alice)..."
Reply to this
Very interesting post.
What is the purpose of punishing people according to the consequences of their conduct as opposed to the intent behind there conduct(mens rea.) It seems to me that the former serves a retributive goal while the later serves a utilitarianism goals.
One cannot be deterred from committing crimes that they do not intend to commit. We cannot rehabilitate a mind that has no criminal intent. When we punish people without strongly considering the mens rea, are we essentially seeking to satisfy a desire to see someone who has caused harm suffer, regardless of the intent behind the harm that was caused?
Reply to this
Absolutely. To the extent it makes any sense, retributive punishment does provide a degree of deterrence by creating a higher level of awareness that might avoid some negligent conduct. But it's primarily retributive, and hence serves no legitimate function.
Reply to this
I was informed by my bank that I was violating the Patriot Act by making too many electronic transfers from my saving account. They were rather snotty about it until I pointed out that it was not possible for me to do that without their assistance and that meant they were an accomplice. To make this even nuttier all this had been done years before there was a Patriot Act.
I wonder how many other folks have committed a future crime.
Reply to this
You mean you were one of those venal bank account multiple advance transferers, and by doing so are aiding the terrorists?
Reply to this
Not really. My son used to go to money laundering conferences and from what he told me about it I would be in over my head.
Reply to this
No doubt. But it can be hard to tell what normal monetary transactions will set off the alarms from day to day.
Reply to this
Criminalizing acts with no mens rea also has the effect of concentrating more power in the hands of DAs, police, judges and government.
I believe a lot of the time the reason a ridiculous crime (like the Texas oyster felonies) is prosecuted is the desire to exercise this punitive power. Speaking from my experience here in Texas, I think a lot of prosecutors, police officer, judges, et cetera find it very satisfying to have complete control over a subclass. Many people working in the justice system here affect a skinhead look and walk around in a threatening manner that you just don't see in NYC. Here in Texas it's just accepted. A lot of times when state troopers stop people for speeding, their partner stands outside the car and points at cars driving past, as if to say you are next, we are going to get you.
Because there is no justice in prosecuting without mens rea, the public is put in the position of accepting random and perverse punishments. This emphasizes the power of the 'justice' system and induces a kind of learned helplessness in the population most affected by this punitive control.
Essentially, the message is you don't have rights. The state can take you away at its pleasure.
In Russia under Stalin, Kruschev and Brezhnev, if people made a mistake on a form they filled out (so many were required by the Soviet bureaucracy) they would be sent to the gulag. These "mistakes" included flaws in cyrillic penmanship.
How far are we from that in Texas? Not very ....
Reply to this