Archive for December, 2011

Be Right Back

Wednesday, December 21st, 2011

Any SEO guru worth his fee will tell you that, once your blog gets some mention or award or whatnot, you need to pump out a lot of content right away. Otherwise, people who come to visit out of curiosity will stop coming back when they don’t see updates. And I have no reason to doubt that they’re right.

Nevertheless, we don’t write this for the hits. So after the ABA Journal very kindly put us on their blawg list a couple of weeks ago, we didn’t start churning out more posts — on the contrary, we’ve only had one substantive post since then. There has been plenty to write about, but we just haven’t gotten to it.

The reason, of course, is that we started doing our illustrated guide to criminal law about the same time, and the response has been so unexpected and overwhelming that we’ve felt obligated to get at least the introductory sections finished before the holidays. Starting off with first principles, we’ve covered what crime and punishment are, and the various purposes of punishment, and now we’re working on a sixth installment on mens rea and culpability. With any luck, we’ll have that out this week.

And then we’re taking a break with the family, which usually means even less time to write than usual, so there might not be another update here until after New Year’s.

So if we don’t get a chance to rap at ya before then, here’s wishing you a merry Christmas, happy Hannukah, cool Kwanzaa, super Solstice, and a very happy New Year!

Best wishes,

Nathan

Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

Wednesday, December 14th, 2011

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when (more…)

Worth Watching

Friday, December 9th, 2011

Harry Morgan died this week. When we were in grade school, we knew him as Col. Potter on M*A*S*H and as the Sheriff in “The Apple Dumpling Gang,” two characters that seemed to our young eyes to be the most “real” on either show. But of course he did a lot more than that. Plenty of excellent eulogies have been written elsewhere, but we thought we’d share a clip from his old “Dragnet” days that seems as appropriate now as it did then.

 

So apparently we’ve got a Tumblr

Friday, December 2nd, 2011

 

So now we have a Tumblr.

It was bound to happen, really. There are plenty of questions, issues and misconceptions about criminal law; we like explaining things; we like drawing things (poorly); people like learning stuff with pictures… So doing a webcomic sort of guide to criminal law just seemed natural.

And making a Tumblr out of it makes more sense than posting them here on the blog. The voices are just too different to put them both in the same place. And Tumblr’s more of a visual medium.

We’re calling it “The Criminal Lawyer’s Guide to Criminal Law (with pictures!)” We are very creative with titles, as you probably are aware.

We’ve got several posts already planned out, and the first one is up here. They’re going to be very rudimentary at first, but soon we expect to have worked through to some tougher concepts.

It’s silly, sure… but it’s fun. We’ll get a kick out of it, even if nobody else does.

Thanks!

Thursday, December 1st, 2011

The Criminal Lawyer made the ABA Journal Blawg 100 today, much to our surprise. We are quietly proud.

Be sure to check out the list, there are a lot of excellent blogs there that might be new to you. And weren’t you just saying to yourself how you need some fresh stuff in your RSS reader?

During the month of December, the ABA Journal is having people vote for their favorites in each category. If you’re so inclined, you can give us an upvote in the “Criminal Justice” category here.

More importantly, we’d like to thank those who nominated us (whoever you are), and especially thank all of our sexy sexy readers. You guys are awesome, and not just because you have excellent taste in blogs.

Thanks!