Criminal Justice

Clinton May Get a Pass Based on Her Intentions. So Why Do Democrats Want to Imprison Those Who Make Honest Mistakes?

Justice requires mens rea reform, even if it helps the guilty.

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Supporters of Hillary Clinton should have a new appreciation for the legal concept of mens rea—literally, "defendant's mind"—because it looks like it will save her from federal prosecution for her use of a personal email server as secretary of state. In recommending that the Justice Department not bring charges against Clinton, FBI Director James Comey distinguished her "extremely careless" handling of "very sensitive, highly classified information" from previous cases involving "intentional and willful mishandling."

Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat.

The first two of these incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution. All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law—a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.

The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. The fact that no one knows the precise numbers is itself a scandal, compounded by the fact that many of these provisions include minimal or no mens rea requirements, which specify the mental state required for conviction.

The upshot is that innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That's a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House of Representatives.

Yet Senate Democrats dismiss the proposed changes, which would add culpability requirements to statutes that do not address the issue, as "corporate protection." They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year.

It would be a shame if disagreement on this issue prevented Congress from reducing excessively harsh federal sentences. But Senate Democrats' critique of mens rea reform is seriously misguided, if not downright disingenuous.

Their chief complaint, also voiced by the Justice Department, is that requiring the government to prove a defendant knew he was breaking the law will make it harder to convict people. No kidding. The same could be said of many safeguards widely supported by civil libertarians, including the presumption of innocence, the exclusion of illegally obtained evidence, the requirement of proof beyond a reasonable doubt, and the ban on double jeopardy.

No doubt guilty people, including violent criminals, escape conviction because of these rules. Likewise, if Congress beefed up federal mens rea requirements, some white-collar malefactors probably would escape criminal punishment as a result. But that prospect should not deter Congress from doing what's right.

"The critics of mens rea reform—there's no way of overestimating the cynicism of these people," said Harvey Silverglate, a leading critic of overcriminalization, in a recent interview with Reason TV. "They're saying, 'It would be a terrible thing, because the people we don't like—corporate executives—they will be able to get off by arguing that there's absolutely no criminal intent on their part. So you want absolute criminal liability for people you don't like. However, when they come at you, suddenly you say, 'Well, I didn't intend to break the law.'"

That defense is deeply rooted in our moral intuitions and legal traditions. As the Supreme Court observed in 1952, "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."

To impose criminal penalties on people for inadvertent violations of the law is plainly unjust, regardless of their occupation or social class. That the guilty will sometimes benefit from this principle is no excuse for denying its protection to the innocent.

© Copyright 2016 by Creators Syndicate Inc.

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  1. But all the people in your examples are pleebs!!! If only they were presidential candidates then there intentions would have been taken into account.

  2. http://www.politico.com/agenda…..und-000120
    Fodder for discussion. Good article would like to see some cogent objections

    1. From your linked article.

      Unless one of the bill’s exceptions applied, the legislation would allow the mail carrier to escape liability even if she knew she was transporting a ransom note, but was somewhat uncertain about whether this was illegal. Why should an actor with this level of culpability not be penalized?

      I’d posit the opposite question. Why should the carrier be penalized? Consider the case of the girl who rescued the baby woodpecker. By the standards the article is pushing, she’d be dead set guilty.

      1. Better you have no opp’ty to ransom the kidnapped person? Because, like, rescuing people is bad if somebody makes $ off it?

  3. Showing mens rea in Clinton’s case would be child’s play. She isnt going to develop an appreciation for anything except the rule of man that is allowing her to get a pass.

  4. “But Senate Democrats’ critique of mens rea reform is seriously misguided, if not downright disingenuous.”

    Having no mens rea requirement, complete prosecutorial discretion and 35,000 ways to run afoul of the law is how you institute the rule of man. This way whoever is in power today can prosecute anyone they see fit whenever they like. Might makes right, a complete disregard for the first Iron Law. Of course the Dems are going to object to changing that, and many Rep’s will too.

    We will have CJ reform the day I can fly to the moon on the back of a pig.

    “”Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted ? and you create a nation of law-breakers ? and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.” – Ayn Rand

    1. Yeah, but Ayn Rand and an old, dead white guy. She owned slaves, too, right?

      One thing MUST be understood above all – those people who are minting all these crimes Care, with a capital C, and that matters most. Behavior amongst the plebes, or private businesses are for putrid “self interest”, these people using gangster level tactics Care, and so it is cleansed.

      They DO Care, don’t they?

      DON’T THEY?

  5. As numerous other commenters have said before, mens rea is completely irrelevant to this case as the statue HRC is accused of violating has no requirement of intent to mishandle secret documents. See numerous examples of people who work with intelligence being tossed in the slammer for leaving a classified document on their desk.

    And thats the generous interpretation of events. The fact that she set up a private server shows intent to mishandle secret documents.

    1. The second line is the important part. You could argue that there should be a mens rea requirement in those statutes, even if there isn’t. But it matters not – it’s easy to show mens rea in the Clinton case.

  6. What does mens rea matter when they ignore or assign it at their whim?

  7. We just had some mens rea justice reform yesterday. The rest of us are going to get some too, only in the exact opposite direction.

    1. It’s all about balance. Clinton gets a pass and the other people breaking the same laws get punished twice as hard.

      It’s been all but official. The US has a new aristocracy. Let’s all hail Queen Hillary. May the currupt b*tch eventally choke to death on all that corruption. (And no, I’m not referring to Bill’s penis)

  8. Clinton May Get a Pass Based on Her Intentions. So Why Do Democrats Want to Imprison Those Who Make Honest Mistakes?

    That’s easy. They want to imprison people who they don’t like, and give a pass to people they do like. Principals, not principles.

  9. I know this is not popular, but after chewing it over for a while, I’m not in favor of mens rea since it verges into thought crime when the criminality of an act is predicated on ones’ thoughts. The same principle of mens rea is how for example, a simple misdemeanor can turn into federal hate crime.

    Any real crime should be treated like tort, as opposed to violation of statutes. It’s why all crimes are currently defined as crimes against the state (i.e. “US or state vs defendent”) rather than being based on principle of violating property (land, things we own, or bodies).

    Simply changing statutory law or regs to have a mens rea requirement is also a crutch for real legal reform. Just get rid of the damn laws.

    However I don’t begrudge anyone for trying to rely on it, and in the positive law environment we’re in, it may be the only way out of 3 felonies a day.

    1. In the State of WA, a cop can’t be prosecuted for recklessness or murder in the line of duty unless bad intent can be shown. It is giving armed agents of the state a de facto license to kill. There is a case in particular that keeps popping up where the wrong guy was attacked by a cop because he kinda looked like a guy that assaulted the cop earlier in the night and got away.

    2. If you don’t consider mens rea, then you can’t distinguish between accidentally causing a death and intentional, premeditated murder. That sounds like a bug, not a feature.

      The real problem with hate crime laws is not that it requires knowledge of someone’s mindset when committing a crime. The problem is that it establishes special classes of people. If, because of my race, gender, sexual orientation, religious beliefs, or whatever other reason, you could be punished more harshly for committing a crime against me than for a crime against my neighbor, the law seems to be saying that I am more valued in some way than my neighbor.

      Beyond that, mens rea generally refers to whether an act is intentional or not, rather than weighing the seriousness of a crime based on its motive.

  10. MOST QUALIFIED CANDIDATE

    Shut up, haterz!

  11. I’m not in favor of mens rea since it verges into thought crime when the criminality of an act is predicated on ones’ thoughts.

    I see your point; it’s valid.

    But- I look at mens rea as it’s being considered here as more like the difference between “accidentally” burning your house down because the wind shifted and your brush pile caught the garage on fire, and torching it for the insurance.

    1. I can see objections like that. But I think they are solvable without mens rea. In your example, it would be a violation of the agreement–a trade conditioned by terms stated in the policy–between you and the insurance. So it wouldn’t require specific state statutes with mens rea either.

    2. I’m not in favor of mens rea since it verges into thought crime when the criminality of an act is predicated on ones’ thoughts.

      Mens rea is very slippery, and you should recall that it really arose to protect the accused.

      It doesn’t generally require that you think, in so many words “lets go do some crimes”. Its the weaker sort of intentionality that the Iron Law on unintended consequences gets at.

      A real life example:

      In the late ’70s, I drove a blue Nova. I came out of the store, unlocked the door and got in a blue Nova, and started the engine. At that point, I noticed that it wasn’t my blue Nova, even though the key worked.

      Absent mens rea, that’s grand theft auto, right there, as technically I took possession of a car not my own even though I didn’t move it.

    3. “I’m not in favor of mens rea since it verges into thought crime when the criminality of an act is predicated on ones’ thoughts.”

      I disagree that it’s about thoughts.

      I think it’s about choice.

      Willfully choosing to violate other people’s right to make choices for themselves is the definition of crime.

      Rape is a crime for that reason.

      Buying marijuana is not a crime for that reason.

      1. This. Choice vs intent.

        The girl was trying to rescue the woodpecker.

        That said, we don’t know if she later kept it in a cage for 6 months. And we don’t really know there was a cat involved. All we know is that she took possession of the bird.

        That said. WTF. Is she accused of running some sort of smuggling ring?

  12. Am I being biased or is this some of the lamest shit imaginable? This is the best these douche bags can come up with?

    http://thesmokinggun.com/docum…..lan-645391

  13. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

    To me, mens rea is fundamental to justice generally and libertarian justice specifically.

    Among other things, mens rea effectively means that a criminal effectively consents to be punished for violating someone’s rights–much like a someone who signs and dates a contract consents to his obligations and legal penalties for breech.

    Every right is a choice, and by virtue of possessing the right to make choices for ourselves, we are necessarily obligated to respect the right of other people to make choices for themselves. When a criminal willfully violates someone’s right to make a choice, I believe he or she is willfully accepting the responsibility for that crime. Willfully accepting the responsibility for violating someone’s rights is, thus, an integral part of what I mean when I talk about “mens rea” or having a guilty mind.

    Thus, I would argue that mens rea means the true purpose of a jury is to determine whether the defendant willingly forwent the legal protection of his or her rights to liberty and property by way of mens rea.

    1. But you see, you don’t have “consent” to commit a crime. You can still be negligent and accidentally destroy someone’s home or even accidentally kill a person and your state of mind shouldn’t matter or change the responsibility or the restitution required.

      Look at it in the way nature’s laws are discovered and defined. They are defined in terms of results, or effects rather than causes. A simple but fundamental one is Force = mass x acceleration. In the determination of force, we don’t know and don’t care what the actual cause of that force is, only the effect: when some object (mass) accelerates.

      This would be a good analogy as a corollary to the NAP since it means that the only justified use of force is against force. So how then would that be determined? The only objective way is to use this kind of bounds-based method (can be physical bounds or meta-physical like terms of contract) as opposed to what I think are subjective evaluations that make a crime.

      1. “But you see, you don’t have “consent” to commit a crime. You can still be negligent and accidentally destroy someone’s home or even accidentally kill a person and your state of mind shouldn’t matter or change the responsibility or the restitution required.”

        I mentioned this briefly in comment below. Even in cases of negligence, we’re talking about someone willfully disregarding someone’s rights.

        Surely, there’s a difference between someone who accidentally leaves the stove on and someone who willfully disregards the danger to other people’s person or property, and that difference absent-mindedly making a mistake shouldn’t be a crime but willfully disregarding the danger to others’ person or property should be a crime. And, one again, the difference there is mens rea.

        I hope it’s clear that I”m not saying people who absent-mindedly leave the stove on and burn down the neighborhood shouldn’t be held accountable in civil court, but there’s should be a difference between that and criminal negligence.

      2. You can still be negligent and accidentally destroy someone’s home or even accidentally kill a person and your state of mind shouldn’t matter or change the responsibility or the restitution required.

        Are you saying intent doesn’t matter? If I accidentally stab someone, apologize, call for help, administer first aid, etc. it’s the same as purposefully carrying a knife while I hunt them down and stab them? Or stab them in the midst of a fight. Or f I stab them during a robbery? Or if I stab them while they are trying to rob me?

        In most states such intent is the difference between charges like manslaughter, capital murder, murder, or justified self-defense.

  14. This speaks directly to the idea that our rights are inalienable–which is to say, they can’t be taken away by government. A jury “of your peers” means specifically that the jury is made up of regular citizens and is not the government. It also speaks to the idea that juries shouldn’t find anyone guilty of anything unless someone’s rights were willfully violated. Even in cases of criminal negligence, aren’t we talking about a defendant who willfully disregarded his or her obligation to respect someone’s rights?

    There is no true justice without mens rea. Without mens rea, justice is at best a popularity contest.

  15. Better 10 innocent men convicted than one guilty man go free.

  16. This is a smokescreen for get out of jail free cards for much more serious crimes, such as insider trading or destruction of records. Yeah, I didn’t know those were illegal. How about, if you even suspect there might be a problem, you don’t do it?

    1. I still don’t understand “insider trading.” How is it criminal to know too much about your investments? And just what does count as “insider trading?” And, per Martha Stewart, if the feds can’t prove insider trading, why can they just keep throwing charges until you can’t afford to fight back?

  17. “Disini juga menyediakan jasa pemasangan baja ringan, yang ditangani langsung oleh SDM berpengalaman,” tukasnya.
    Klik

    konstruksi sambungan baja
    jasa konstruksi gedung

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