Posts Tagged ‘mens rea’

Q&A Roundup Part 2

Friday, September 18th, 2015

I’m writing a response to an essay on “consent as a felt sense” and looking for a deeper explanation of mens rea and the reason why it ought form the basis for not just a legal system, but for the social norms of a community. I know there is some good discussion in the Elonis v. US case, but who are some good sources to read that really lay out the reason why we should (or should not) examine an actors mindset when judging culpability?

Mens rea isn’t really the basis of our legal system, nor is it really the basis of social norms. Mens rea is the legal term for the mental state that makes an act punishable by the state. If I accidentally tripped on a crack in the sidewalk and fell on you, bruising your arm, yes I caused injury to you, but because I had no culpable mental state – no mens rea – that’s not an injury the law wants to punish me for. Whereas if I intentionally whacked you on the arm and bruised it, the state could send me to jail. Same act, same harm, but only punishable because I was trying to harm you.

That’s a very small subset of the law. Mens rea doesn’t come up much in, say, corporate law or contracts or wills or real estate, etc. There may be some question of what parties intended or meant to do, but that’s not the same analysis as whether (or to what degree) they were being evil.

Mens rea doesn’t underlie social norms, either, but is instead a way of looking at why they were broken. It’s the difference between merely being rude or awkward and criminal stalking or harassment. It’s the difference between an accidental killing and murder one. The social norm would be what is or is not done, whereas mens rea is how purposefully you violated it.

Rather than mens rea forming a basis for “just a legal system,” it is instead a basis of “a just legal system,” ensuring that we only punish those who deserve it, who chose to break the rules. Injustice often arises when we punish without caring about mens rea. (See my chapter on strict liability, “Guilt without Fault,” for example.)

As for “consent as a felt sense,” be careful discussing it in the same breath as the law. That phrase is an attempt to redefine “consent” to mean something else. The law is very clear about what consent means.

“Consent” means voluntarily agreeing (or acquiescing) to something, so that it can now happen. If you ask me if you can borrow my bicycle, and I say yes, then I consented to you borrowing my bicycle. Even if while riding my bike you hit a pedestrian, and oh my god if I’d known you were going to do that I’d never have said yes, it doesn’t change the fact that I let you do it. The future doesn’t change the fact that I gave consent now. By the same token, if you steal my bicycle and later ask me if it was okay, even if I say yes I still did not consent to you taking it in the first place. You still committed theft. The fact that I’m okay with it now doesn’t change the past. That’s ratification or something like that, not consent.

“Consent as a felt sense” is really the opposite. It’s a way of saying consent works backwards in time, rather than forwards. It lets me “take back” my consent to you riding my bike, after I find out you later hit a pedestrian. If it was internally consistent, it would let my later acquiescence convert your crime of theft into a non-criminal borrowing, after the fact. The law doesn’t work like that.

It usually comes up in the context of rape – specifically wanting to call consensual sex nonconsensual rape, if afterwards one of the participants feels like he/she wouldn’t have agreed to it if they knew how they’d feel about it now. In other words, “taking back” one’s consent because they regret what they consented to. The law doesn’t work that way, but those who speak of “consent as a felt sense” tend to say “so what,” and say we shouldn’t be so concerned with whether the rules were obeyed at the time as with how people felt afterwards.

The problem in that world – and it’s a big one – is that mens rea is irrelevant. Who cares whether you were trying to do anything wrong or whether you were trying to do the right thing. The important thing isn’t your culpability then, but my feelings now. In that world, you could be punished even though you did everything right, and did nothing wrong. It embodies all the injustice of strict liability crimes, with all the unpredictability of a world without rule of law, where nobody knows what they might go to jail for or why. Can you imagine what kind of a hell that would be?

This is why lawyers – especially criminal lawyers – are super leery of this kind of sociological definition-changing. Utopians tend to make misery. Especially when they don’t understand the law and why it is the way it is.

Another reader’s response: I’m clearly not as experienced as lawyer as this guy (two thirds of a 1L criminal law class woo!), but I thought I’d share my two cents.

I think the above lawyer’s analysis fails in regarding consent as something that is given once, rather than a continuous process.  It is not precisely analogous to the bike-giving example because that’s a bailment created for a limited duration of time; meanwhile, in order for an act to be truly consensual there must be consent at each individual action that occurs, and at each moment.  To clear up some possible strawmen, I’m pretty sure that the above lawyer thinks that people can verbally revoke consent in the middle of a sex act.  Conversely, I don’t mean that explicit verbal consent must be gotten every time e.g. someone goes from touching one body part to another.

I think the “consent as a felt sense” can be better understood to modify the actus reus of rape, rather than the mens rea.  Rape is then redefined as “any sexual act done without the subjective experience of consent with another person.”  I think this is the proper definition, since it focuses the crime on where the harm actually occurs; e.g. inside the mind of the person being victimized.  Of course, in order to be morally culpable, much less criminally answerable, there must also be a mens rea; was someone intentionally, knowingly, recklessly, or negligently violating someone’s subjective experience of consent?  Or did they have no way of knowing?  Obviously if someone has no clue that consent was no longer experienced, and had no way of knowing it, they’re not culpable.

So far this looks pretty similar to today’s rape law, but I’d like to bring in an example from my own life to illustrate.  When I was 17, I engaged in my first relationship with a 39-year old man.  Things proceeded pretty quickly, and we started having sex.  When we finally got there, I was clearly distressed; I was shaking, not just trembling, and drenched in sweat that went beyond normal sexual aerobics.  My voice caught in my throat.  I think it’s far to characterize that situation as one where the subjective experience of consent was no longer there, but I also did not have the means to verbalize that to my partner.  My partner, to his credit, stopped what he was doing, we had a discussion, and two weeks and a couple drinks later I had the best experience of my life.

But was it simply to my partner’s credit?  I think what the people who define consent as a felt experience would say that it’s not.  It’s the bare minimum of morally acceptable behavior.  Even if I had given verbal consent prior, anyone who would continue having sex with someone who is clearly in distress merely because they met the empty formalism of rape law is morally culpable.

Spreading the idea of consent as a felt experience, or encoding it into law, is about crystallizing that insight.  Torts law is often about placing the burden of preventing harm on those who are in the best position to be able to do so (to be fair, I got this from my heavily law-and-economics torts professor, so I have no idea if this is the mainstream view).  Surely that’s the person who lost felt consent, since they can verbalize it, but the initiator is also in a position to minimize harm by stopping if they think felt consent has been lost.  It makes sense to incentivize people to stop if they have reason to believe consent is no longer present.

Rape law, and current mores around rape, would say that what my boyfriend did was not obligatory.  I think it is, which is why I want to spread the idea of consent as a felt experience.

You raise a couple of really intriguing points.

The first is the concept of consent as a continuous process. There are at least two excellent classroom discussions to get out of that. First would be whether it’s actually a continuing process. If you have happily consented to have sex with your boyfriend, must you really consent to each tickle, touch, or thrust before it can take place, or have you actually consented to the experience as a whole, however it may unfold? I suspect that the common understanding is the latter, rather than the former – in which case, if your understanding is the former, it might behoove you to so inform your partner, lest there be any unfortunate misunderstandings that ruin your experience or his life.

Still on that first point, another excellent discussion could be whether, and at what point, such consent is revocable. Is it a hard-and-fast rule that, no matter when, the moment you withdraw consent any further continuation of the act is rape? Or is there more of a continuum? Take these three situations: (a) You say “let’s go to bed” and you partner eagerly agrees, but before anyone’s jeans are off you change your mind and say not tonight. (b) You’ve been happily having intercourse, well past the penetration stage, and while he’s going hot and heavy you remember something he did that upset you, you immediately lose interest in continuing and tell him to stop, but he doesn’t stop immediately so you push him off. © You had sex and it was great. Now it’s the next day and you feel really bad that you had sex. Maybe he turned out to be a jerk in the morning, or whatever. The point is you no longer want it to have happened. The question would be, do all three of those acts count as revocation of consent, do only (a) and (b) count, or does only (a) count, and why? The trick with these discussions, of course, is to dig down to the underlying principles behind people’s different positions, to ensure that people aren’t talking past each other despite using the same language.

The second intriguing point you raise is when you say you think it is obligatory for sex partners to do what your boyfriend did. You were exceedingly nervous at the prospect of losing your virginity, but never made it known that you didn’t want to go through with it. Your partner picked up on the fact that this wasn’t very enjoyable for you, and had the good grace to wait until you were more comfortable with it. You would make mandatory his ability to distinguish your distress from the normal apprehension and excitement that accompany many first forays into sex. You would make mandatory his ability to correctly interpret your internal feelings when you have not communicated them. You would make mandatory the gentility and wisdom of an experienced, middle-aged man, and impose them on every 17-year-old trying sex himself for the first time, possibly as distressed as you were.

And to be clear, you’re saying that anyone who gets it wrong, anyone who mis-reads the cues, anyone who isn’t as sensitive or mature as this ideal, should have his future taken away, should be branded a felon, should be imprisoned, should be registered as a sex offender and despised for the rest of his life, denied the opportunity for most education, employment, social involvement, and relegated to an underclass of citizens we like to pretend don’t exist. Because that’s what happens when you make this stuff obligatory.

Hey, maybe that’s exactly what you want. Maybe it isn’t. Don’t let me put words in your mouth. But as someone who’s defended both men wrongfully accused of sex crimes and women charged with making false accusations, I’d caution anybody urging such mandates to be very clear on the outcome they desire. Good intentions, and all that.

Let’s Make a New Law!

Thursday, October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?


“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.


This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.


But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.


Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.


You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:



(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.


(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.



Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.


Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.


Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.



It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.


There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

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…)

A Neat Primer on Neuroscience and Criminal Law

Monday, November 7th, 2011


One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.

Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.

One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?

Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.

We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.

Using Neuroscience to Gauge Mens Rea?

Monday, October 31st, 2011

Over at Edge, in a short video, we get an intriguing look at criminal justice from the perspective of neurological science.

Put all this together, as you can see here, and we discover little areas that are brighter than others. And this is all now easily done, as everyone knows, in brain imaging labs. The specificity of actually combining the centers (where information gets processed) with the actual wiring to those centers has been a very recent development, such that it can be done in humans in vivo, which is to say, in your normal college sophomore. We can actually locate their brain networks, their paths: whether they have a certain kind of connectivity, whether they don’t, and whether there may be an abnormality in them, which leads to some kind of behavioral clinical syndrome.

In terms of the Neuroscience and Justice Program, all this leads to the fact that that’s the defendant. And how is neuroscience supposed to pull this stuff together and speak to whether someone is less culpable because of a brain state?

Then you say, well, okay, fine. But then you go a little deeper and you realize, well, this brain is a very complicated thing. It works on many layers from molecules up to the cerebral cortex; it works on different time scales; it’s processing with high frequency information, low frequency information. All of this is, in fact, then changing on a background of aging and development: The brain is constantly changing.

How do you tie this together to capture what someone’s brain state might be at a particular time when a criminal act was performed? And I should have said it more clearly — most of this project was carried out asking, “Is there going to be neuroscience evidence that’s going to make various criminal defendants less culpable for their crime?”

Well, probably not. Even if this were to become reality — which it isn’t, yet — the whole focus of mens rea culpability is what the defendant’s mental state was at the time he committed the act. Even if police officers were equipped with infallible handheld brain scanners, so they could get a mental reading at the moment of arrest (and oh, the fascinating Fourth Amendment issues there!), the moment of the crime is past. The reading is not evidence of what the brain was doing five days ago, or even five minutes ago.

And at any rate, it’s not usable science yet. So why bother thinking about it now?

To his credit, the speaker, neuroscientist Michael Gazzaniga, admits as much.

Now, the practicing lawyer asks “is this thing useful, can we use it tomorrow? Can we use it the next day? Can’t? Out. Next problem.” So, after four years of this I realize, look, the fact of the matter is that from a scientific point of view, the use of sophisticated neuroscientific information in the courtroom is problematic at the present.

But then he says “it will be used in powerful ways in our lifetime.” What powerful ways? Mainly the ability to show that someone simply couldn’t have thought a certain way, because his brain doesn’t work that way. This defendant shouldn’t be punished like a normal adult, because his brain isn’t wired like a normal adult, and he could not have had the same mens rea as one would otherwise expect under the circumstances. Research is showing that children and teenagers are wired differently, as well, which could affect juvenile justice.

That’s useful for the defense. It could be a valuable tool in raising defenses showing that mens rea was lacking, because it couldn’t have existed. Not useful for prosecutors, more than showing that it was just as theoretically possible as for any normal human, which is sort of presumed for everyone anyway. So yay for science.

Another way it’s expected to be useful, however, is preventing future crimes. Stopping the next mass-murderer before he actually starts shooting kids on campus and whatnot. Of course, we immediately get creeped out the second anyone (more…)

Why Conservatives and Defense Lawyers Should LOVE the New Hate Crimes Law

Friday, October 30th, 2009

hate crime

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.


This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.


But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.


Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.


Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.


Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.


“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

How Would a “Cultural Relativity” Defense Work?

Thursday, July 2nd, 2009


Amir Efrati has an interesting article in today’s Wall Street Journal, headlined “Cultural Background Gains Traction as a Legal Defense.” It’s a well-known fact that some things that are criminal in one society are perfectly acceptable in another. Some lawyers are starting to claim that it should be a defense if a person’s conduct — though perhaps criminal on its face — was consistent with the norms of the culture they come from.

To the extent that this affects the mens rea element of a crime, it seems obvious that cultural beliefs can be relevant. If one’s cultural upbringing makes one’s conduct somehow less purposeful, knowledgeable, reckless or negligent, then it ought to be taken into account.

For example, it’s common to charge someone with possession of a controlled substance with intent to sell — usually a more serious charge than simple possession — based solely on the quantity of drugs possessed. If someone has thirty crack vials in their pocket, in the common sense of American culture it would not be unreasonable to presume that they did not have it for personal use. Intent can be inferred from these facts.

But a Laotian immigrant was acquitted of possession-with-intent-to-sell charges by “an all-white, predominantly Republican, South Carolina jury,” after it heard evidence that 300 grams of opium was consistent with personal use in the defendant’s tribe. “It’s their version of Advil,” his lawyer argued. “They’ve been using this for a thousand years.” There was a cultural explanation of why this particular defendant did not have the intent to sell.

The Journal article also mentions the recent case of Nary Chao, a Cambodian mother who was charged with a felony after some busybody turned her in for kissing her infant son’s penis. This is bizarre behavior in America, sure, but in Cambodia it is an acceptable sign of affection. The prosecution was mollified somewhat by this explanation, and “let her plead to a misdemeanor.” The Maine Supreme Court dismissed a similar sexual assault charge against a Dominican mother for similar reasons. In sexual assault cases, or child-endangerment cases, the law doesn’t care so much why you did it, only that you did it.

Nevertheless, many cultural differences are not going to have an effect. They’re not going to excuse otherwise criminal conduct, or mitigate the sentence. A father who physically abuses his child is going to be just as culpable, even thought it is a cultural norm where he comes from. Our society values the child’s safety more than it does the father’s cultural prerogatives. A fundamentalist Muslim family that commits an “honor killing” is not going to be let off the hook just because it would have been expected back home.

The upshot is that any cultural balancing is going to be weighed within the culture of the judge and jury who are doing it. In America, you’re just not going to see accommodation of customs that jeopardize someone’s safety, or cause physical harm.

* * * * *

The clash of cultures doesn’t necessarily involve immigrants. We’ve spoken to people from inner cities who think it’s unfair to get charged with certain crimes, because those are the “white man’s” laws, which shouldn’t apply to them. In some neighborhoods, it’s just as acceptable to smoke a joint as to smoke a cigarette. It’s a cultural norm. So getting popped for it smacks of injustice.

But is it really unjust? Should cultural sensitivity extend to internal cultural differences? Whatever one’s position on the legalization of pot, why should the law apply to one portion of the citizenry and not to another?

As a white-collar defense attorney, we also see lots of people who, consistent with the culture they were raised in, think it is perfectly acceptable to commit financial crimes. It’s not only acceptable to screw others, it’s something to be proud of. This is an absolutely foreign concept to us, and yet there it is. Should ethical relativism mitigate such behavior? Is a fraud any less criminal if it is acceptable in the offender’s community? What if the victim was also part of that community, and shared the same views?

How about spitting in public? It’s against the law. But in some neighborhoods, hawking a big old loogie onto the sidewalk is almost mandatory. Should people in those neighborhoods be exempt from being ticketed, just because it’s the norm there? Why should they be any less subject to the law than a tourist in midtown?

* * * * *

Cultural relativism can be dangerous, if it lets people get away with conduct that others are held accountable for. It engenders a perception that the justice system is not fair. And it is of critical importance that the system be perceived as generally fair. If the system is perceived to act irrationally, then it’s not going to deter crime.

If the system is perceived to excuse crimes based on vagaries of birth or ethnicity, then the system fails. Some people will be more likely to commit crimes, and society will suffer.

If the populace loses confidence in the ability of the system to protect them, because some people are going to get off based on vagaries of birth or ethnicity, then the system fails. People will turn to other ways of protecting themselves, and society will suffer.

On the other hand, cultural insensitivity can also be dangerous. If people are punished for offenses that are harmless, such as the Cambodian and Dominican mothers’ expressions of affection, the system is just as likely to be seen as arbitrary and irrational. If cultural factors are not taken into account when they legitimately affect a critical mens rea element, then the system will be perpetuating injustice. Society will suffer.

For those who insist that the law should apply to all visitors equally, then does that mean Singapore is right to imprison an American who makes a perfectly true statement that harms someone’s reputation? Does that mean Saudi Arabia would be justified in executing a visiting gay couple merely for being homosexual? There are plenty of laws out there in the world that we Americans would not want applied to us with equal force. We’d have a huge public outcry, get the State Department involved, mobilize the media. So why shouldn’t we provide the same cultural sensitivity that we would demand of foreign countries?

Where should we draw the line?

* * * * *

One dividing line could be the one we alluded to above: a cultural norm should not be a mitigating factor or a defense when it caused physical harm, injury, financial harm, or otherwise damaged another person. If the conduct did not endanger anyone else’s safety or property, then a jury ought to be allowed to at least consider cultural factors.

But that is too easygoing. It lets a jury decide not to punish other crimes that society still wants enforced, even though there is no victim. And there would be unjust disparities. A jury would be allowed to excuse a West Indian pot smoker, but a kid from Kansas isn’t going to have the same defense available to him. A jury could acquit a Chinese for boiling a cat alive in lye before skinning and eating it, because that’s the way it’s done back home, but would have to convict a local for the same animal cruelty. A foreign tourist could be forgiven for swimming nude in public, but a resident would get in trouble.

But can we add an extra exception, prohibiting cultural considerations in crimes that offend public sensibilities? Doesn’t that essentially cover everything else?

As the guy said in the movie, when deciding how to enforce the law in a clash of cultures: “It is a puzzlement.”

Grammar Schooled: Over-Zealous Feds Get an “F” in Adverbs

Monday, May 4th, 2009


In a sort-of unanimous opinion today, the Supreme Court reversed the conviction of a Mexican who’d tried to get a job by using counterfeit Social Security and Alien Registration cards along with a fake name and date of birth. He’d been convicted of aggravated identity theft, 18 U. S. C. §1028A(a)(1) — a federal crime for “knowingly” using “a means of identification of another person.”

There was no evidence that this guy, named Flores, knew that the Social Security cards (plural) or Alien Registration cards (yes, plural) he’d tried to use had actually belonged to anyone else. And in fact, they didn’t, as they were made-up counterfeits. The feds said it wasn’t necessary to prove that Flores knew it was someone else’s ID. All they needed to prove, they said, was that Flores knew that… well… that he was using a means of identification.

The trial court, for some reason, bought that argument. Flores then decided to forego a jury and let the judge decide the case. The judge found him guilty of aggravated identity theft. On appeal, the Eighth Circuit agreed with the trial judge’s ruling.

Writing for the Court today in Flores-Figueroa v. U.S., Justice Breyer gave the feds (and the trial judge, and the Circuit) an “F” in basic English grammar. The phrase “knowingly using someone else’s ID” has a simple plain meaning, which is that you knew it was someone else’s ID. Nobody in their right mind would expect the word “knowing” to only modify the verb “using.” Nobody with a third-grader’s grasp of English would think it did not modify the verb phrase “using someone else’s ID.” In fact, to read the sentence the way the feds wanted to would make no sense whatsoever.

The feds, for their part, could not present a single example of a statute being interpreted the way they wanted this one to be interpreted. Their arguments were just lame. And so all nine Justices agreed that this conviction needed to be reversed.

But not all nine could agree with the rest of Breyer’s reasoning. And neither can we. If Breyer had stopped right here, this would have been a great opinion. But he didn’t stop there. Instead, as pointed out by (still concurring) Justices Scalia, Thomas and Alito, he added some unnecessary extra bits of reasoning that only serve to weaken the Court’s opinion.

All three properly called him out for making a baseless statement that courts “ordinarily” read the mens rea of “knowingly” to apply to every element of the crime. Breyer said that there are certainly examples where “knowingly” does not apply to every element. For example, it’s illegal to knowingly transport someone under 18 years old across state lines for prostitution. But you didn’t have to know that the victim was under 18 to be convicted of this crime. The law doesn’t care whether you knew that element or not. All you had to do was know that you were transporting the victim across state lines for prostitution.

Scalia remained “agnostic” on whether courts “ordinarily” interpret laws this way. But Breyer seems to imply that courts should interpret laws this way, and Scalia cautioned against that firmly. “It is one thing to infer the common-law tradition of a mens rea requirement, where Congress has not addressed the mental element of a crime,” he said (a tip of the hat to one of Breyer’s own dissents last week). But “it is something else to expand a mens rea requirement that the statutory text has carefully limited.

Scalia also raised another good point, that Breyer shouldn’t have gone on about the legislative history here. “Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise.” That is especially bad, he added, when doing so would criminalize acts that the text would otherwise permit.

* * * * *

It is clear that the feds improperly charged Flores with identity theft here. Although he clearly used a false identity, and absolutely tried to pass off counterfeit identification documents, it was equally clear that he had never stolen or used anyone else’s ID.

Why did the feds charge him with a crime he clearly hadn’t committed? It’s not as if they didn’t have other stuff to charge him with. Were they just not thinking? Did they just not understand what the law said in plain English? Did they just not care? Or were they intentionally trying to stick it to him?

Hmm… that’s a nice little mens rea question. Their reasons determine their culpability. Were they idiots (and therefore bad at their job, but not bad people), or were they abusing their power (and therefore bad prosecutors, and bad people)? What do you think?

Upcoming New Hate-Crime Law — Nothing Wrong With the Idea, But This One Has Problems

Friday, May 1st, 2009


The other day, by a vote of 249 (59%) to 175 (41%), the U.S. House of Representatives voted to expand the scope of federal “hate crimes” to include crimes against gay people, transgender people, the mentally disabled and the physically disabled. With strong support from the White House and from Senate democrats, we expect to soon see this become law without many changes.

We frankly don’t like hate crimes, but from a jurisprudence perspective there really isn’t any problem with them. More on that below. At the same time, however, this particular bill is problematic. More on that below, as well.

The bill, H.R. 1913 (text here), imposes up to 10 years in prison if you to commit violence because you thought someone was black or gay or whatever. (It also authorizes grants of up to $100,000 per year in federal money to the various state, local and tribal law enforcement agencies. The money is to go towards investigating and prosecuting hate crimes, and programs to reduce the occurrence of hate crimes.)

In the form passed by the house, the hate crimes portion of the law would now do the following:

1. With respect to:
Religion, and
National Origin

…A. In general.

………1) If you attempt to cause bodily injury to someone, or if you willfully cause such injury, AND

………2) If you did so with fire, a gun, a dangerous weapon, an explosive, or an incendiary, AND

………3) If you did so BECAUSE of the actual or perceived race/color/religion/national origin of the victim, THEN

………4) Your maximum sentence goes up to 10 years.

…B. If someone died or you tried to kill, or you kidnapped or tried to kidnap someone, or you also committed or tried to commit aggravated sexual abuse, THEN

………1) There is no maximum sentence, and you can get anything up to life in prison.

2. With respect to:
Religion (again),
National Origin (again),
Gender (I guess they’re referring to biological sex, as opposed to foreign grammar),
Sexual Orientation,
Gender Identity, and

…A. In general.

………1) The exact same stuff as above applies, but only if you acted under any of these circumstances:

…………..a) Either you or the victim crossed state lines or a national border.

…………..b) Either you or the victim used an instrument of interstate or foreign commerce.

…………..c) You used a weapon that had traveled in interstate or foreign commerce.

…………..d) Your conduct interferes with the victim’s economic activity.

…………..e) Your conduct otherwise affects interstate or foreign commerce.

Finally, to forestall the criticisms that hate crime laws infringe on First Amendment rights, the statute says it shall not be construed to prohibit any expressive conduct protected by the Constitution. Nor to prohibit any activities protected by the Constitution.

* * * * *

So, what does this mean?

Critics of hate crimes laws, like Rep. Lamar Smith (R-TX), say that such laws undermine the principal of equal justice for all. “Justice will now depend on the race, gender [gah!], sexual orientation, disability or other protected status of the victim,” Smith said during debate. “It will allow different penalties to be imposed for the same crime.” House Republican Leader John Boehner of Ohio said that this “places a higher value on some lives compared to others. That is unconstitutional, and that is wrong. All life was created equally, and all life should be defended equally.”

Such criticisms miss the point, a little bit.

As written, this law does not put greater value on a victim’s life because of their race, sex, religion, or what have you. The victim’s actual status has nothing to do with it. The law doesn’t care if the person actually was black or female or Methodist — it only cares whether the offender thought so.

The focus is not on the victim. It is on the offender’s state of mind. In other words, all this law does is insert a new form of mens rea into criminal jurisprudence.

Mens rea is the legal word for an offender’s state of mind, and is almost always a crucial element of a crime. A harmful act that was committed without the requisite mental state is not going to be a crime. For the most part, society doesn’t want to punish people when they weren’t trying to do something wrong, or when they weren’t breaching any duty to be careful.

The traditional mens rea have coalesced over time into a continuum that looks something like this:

…FAULTLESS. There is no culpability here. You weren’t doing anything wrong, or you can’t be held accountable for your actions. Society doesn’t want to punish you, because it would serve no purpose. It would be mere retaliation, and that’s just not civilized. (Don’t start thinking we’re too evolved, however — we do still have STRICT LIABILITY laws, like statutory rape and certain weapon and drug possession crimes, where society couldn’t care less whether you meant to do it, or even knew that you were doing it. So we still have some holdovers from the old “eye-for-an-eye” days of punishing even mere accidents.)

…NEGLIGENT. This is the lowest level of culpability. You were supposed to be careful, and you weren’t and now someone got hurt. You weren’t trying to do anything wrong, but you did anyway, and you ought not to have. Society wants to punish you for this, but only a little. We want to make sure people are careful when they’re supposed to be. Not paying enough attention while driving, then running over a pedestrian, is a crime of negligence.

…RECKLESS. This is punished somewhat more severely. You knew what you were doing might hurt someone, but you did it anyway. Society wants to punish you more for this, because you were just indifferent to the consequences of your actions. You were putting your own interests above those of the rest of us, and someone could have gotten hurt. Shooting a gun indiscriminately out a window is reckless. Driving so fast that you can’t safely react is reckless.

…KNOWING. This is even more severe. When you were reckless, you disregarded the mere chance that something bad might happen. But when you had a pretty good reason to believe that something bad would happen — even though it’s not what you were mainly trying to accomplish — then society wants to punish you much more. Let’s say you caught your spouse cheating on you, so that Saturday night you cut their brake lines. You’re trying to kill your spouse when they take their mother to church the next morning. The resulting accident kills your mother-in-law as well. You weren’t trying to kill her, but you knew she could die as well.

…PURPOSE. This is the most severe. You were actually trying to do it. Society punishes intent the most severely of all, as it’s the most culpable of the mental states. When you severed your spouse’s brake lines in the example above, you intended to kill your spouse.

There are other mens rea out there, which sort of come at this continuum from right angles. ATTEMPT is the big one. It’s a form of intent, of purpose, but it slips in between each of the standard categories. You were trying to commit a crime, but for whatever reason it failed. If you tried to shoot a gun randomly out the window, but it jammed, you’re guilty of an attempted crime of recklessness — you intended to commit a crime with a reckless state of mind. If you tried to purposely shoot someone, but the gun jammed, you’re guilty of attempted murder, attempting to commit a crime with an intentional state of mind. Attempts aren’t punished as severely, because the state of mind is not the only reason for enhanced punishment — the events themselves also play a part in determining culpability (a fact that some on the Supreme Court seem to have forgotten).

So all “hate crimes” laws like this one do is define a new mens rea. This one does not fall within the standard continuum, however. It does not care so much whether you were negligent, reckless, knowing or purposeful. It only cares what you believed to be true of the victim, and that you acted because of that belief.

This really doesn’t even come at the continuum from right angles. It’s wholly separate and apart. It’s a one-off. It’s not even on the same piece of paper. It’s a new kind of mens rea, because it has less to do with your mental state with respect to your actions, and more to do with the reasons why you’re committing them in the first place.

But does that make this new mens rea improper? Not really. It just so happens that, over the past couple hundred years, our national culture has gradually come to consider harmful — actually harmful to society — mistreating people based on attributes beyond their control. People can’t help what color they are, or where they were born, or what religion they were raised in, or what turns them on, or whether they have Down syndrome. Mistreating them because of such things is, to modern eyes, harmful to society.

Society punishes harm to itself by criminalizing it. So it’s a simple step to criminalize mistreating people because you thought they possessed certain attributes beyond their control. That belief, the reason for the criminal act, is just a new form of mens rea, and a harmless one at that.

* * * * *

However, just because we don’t have a problem the concept of this hate crime law, that doesn’t mean we think it is a good one. In fact, there are significant problems with it.

For example, there is a real vagueness with respect to religion and national origin. On the one hand, they’re the same as race, and don’t require additional circumstances. On the other hand, they are grouped in with the new categories requiring additional circumstances. It has to be one or the other, and this vagueness could make hate crimes based on religion and national origin void, under the Rule of Lenity.

Of course, the Commerce-Clause-related circumstances could make this merely a distinction without a difference. But if it there was no difference, then why did Congress go to the effort of writing those conditions for certain victims, but not for others? A savvy defense attorney might well argue that these particular hate crimes are unenforceable.

In addition to this unnecessary vagueness, the law is also overbroad.

Let’s back up. The policy underlying this (and pretty much any other American law against discriminatory behavior) is that we don’t want people being singled out for mistreatment for reasons they have no control over. Again, people can’t help what race they are, so it’s bad to mistreat them for it. It now seems pretty clear that people can’t help what their sexual proclivities happen to be, so it’s bad to mistreat them for that as well.

But there are sexual proclivities that society still wants to punish. There are those who can only get sexual gratification from acts involving children. For the most part, they can’t help this, which is why they usually cannot be rehabilitated. So we have two competing interests here: society’s desire to protect those who can’t help being the way they are, and society’s desire to protect children from sexual predation. It should be obvious to most who read this what the policy ought to be on this. But this law doesn’t go there.

So you could have a situation where a father catches a sexual predator making moves on his young child, and beats him severely with a metal baseball bat. The act was committed primarily because of what the victim was, and it was based on his sexual orientation, so now the father is facing prosecution for a hate crime in addition to the assault.

Or you could have a religion whose believers are sworn to kill all redheads on sight. You happen to be a redhead, and members of that religion just established a temple down the street from your house. You willfully torch the temple, and someone gets hurt. Now, in addition to the arson, you’re looking at a hate crime.

These are extreme examples, to be sure. It’s not something that’s likely to happen. It merely shows that the law is inartfully written, and that it is conceivable that it could therefore be applied in ways that were not contemplated by Congress. These merely illustrate that the law could serve to protect those whom the law does not wish to protect, and penalize those whom the law did not wish to penalize.

These examples also raise a policy question as to defenses. In the first, the father could raise a defense of temporary insanity to challenge the assault claim. In the second, the arson might be challenged with perhaps a Bush-doctrine preemptive self-defense.

But is there room for such defenses in this law, the way it’s written? Temporary insanity is a defense to mens rea. It posits that the necessary mental state did not exist, because circumstances were such that the offender could not have been thinking that way. But here, the temporary insanity would be proof that the necessary mens rea did exist. It’s the result of the knowledge that the victim was a sex offender, and tends to show that the violence was inflicted because of it.

* * * * *

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But this one seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.

So what’s new?

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.