Posts Tagged ‘criminal intent’

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…)

Thought Police?

Monday, October 20th, 2008

brain scan

Guilt or innocence, one might say, is all in the mind. After all, there are very few crimes that can be committed without the requisite mens rea, or mental state. If we’re going to punish someone, their acts cannot have been mere accident. We want to know that they had some knowledge that their actions could cause harm, and we want that awareness to be sufficiently high as to require punishment.

The standard criminal levels of mens rea are “negligence” (you ought to have known bad things could happen), “recklessness” (you had good reason to believe that bad things would probably happen), “knowledge” (bad things were probably going to happen), and “intent” or “purpose” (you wanted bad things to happen). If your foot kicks someone in the ribs while you’re falling downstairs, you’re not a criminal. But if you kick someone in the ribs because you don’t like them, then society probably wants to punish you.

We cannot know what anyone was thinking when they did something, however. So we rely on jurors to use their common sense to figure out what an accused must have been thinking at the time.

In recent years, however, there have been enormous advances in neuroscience. Brain scans, the software that processes the data, and good science have approached levels that would have been considered science fiction as recently as the Clinton years. Experts in the field can see not only how the brain is put together, but also what an individual brain is doing in real time. Experimental data show which parts of the brain are active when people are thinking certain things, with good detail.

Functional magnetic resonance imaging (fMRI), in particular, can act as a super lie-detector. Instead of measuring someone’s perspiration and heart rate while they answer questions during a polygraph exam, fMRI looks at actual real-time brain activity in areas having to do with logic, making decisions, perhaps even lying. Experimental data of large groups is pretty good at identifying what parts of the brain are associated with different kinds of thinking.

Every brain is slightly different, of course. Brain surgeons have to learn the individual brain they’re operating on before they start cutting. So general group data don’t translate to an individual person 100%. So any lie-detector use for fMRI would have to require some baseline analysis before proceeding to the important questions.

The issue is whether it will be admissible in court. Polygraph tests generally aren’t admissible, because they’re more an art than a science. But fMRI is all science. In addition, brain scans are already widely admissible for the purpose of reducing a sentence because the defendant had damage to his brain. As forensic neuroscience expert Daniell Martell told the New York Times in 2007, brain scans are now de rigeur in capital cases. In Roper v. Simmons, the Supreme Court, ruling that adolescents cannot be executed, allowed brain scan evidence for the purpose of showing adolescent brains really are different.

Outside the United States, brain scans have already begun to be used by the prosecution to show guilt. In India, a woman was recently convicted of murdering her ex-boyfriend with the admission of brainwave-based lie detection. There was other evidence of guilt as well, including the fact that she admitted buying the poison that killed him. But the brainwave analysis was admitted.

There are deeper policy issues here. Is reading someone’s brain activity more like taking a blood sample, or more like taking a statement? The Miranda rule is there, at heart, because we do not want the government to override people’s free will, and force them to incriminate themselves out of their own mouths against their will. That’s why the fruits of a custodial interrogation are presumed inadmissible, unless the defendant first knowingly waives his rights against self-incrimination. And because the DNA in your blood isn’t something you make of your own free will, by taking a blood sample against your will the government has not forced you to incriminate yourself against your will.

So is a brain scan more like a blood sample? Is it simply taking evidence of what is there, without you consciously providing testimony against yourself? Or will it require the knowing waiver of your Fifth and Sixth Amendment rights before it can be applied?

We’re interested in your thoughts. Feel free to comment.