Shouldn't Intent Be A Part Of Criminal Law?

from the how-many-felonies-have-you-committed-today? dept

We just wrote about a grandmother getting arrested for buying cold medicine, without realizing a state limit on how much pseudoephedrine could be bought in a single week. Even though everyone involved admits that this grandmother wasn't in the meth making business, the police still felt the need to go ahead with the arrest. In the comments, one of our readers, BobInBaltimore, noted that a big part of the problem is the fact that we've pretty much done away with the concept of "intent to commit a crime" as being a prerequisite for establishing criminality.

Indeed, the WSJ just had an opinion piece all about the how modern technology has made accidental criminals out of all of us, based on the new book Three Felonies a Day: How the Feds Target the Innocent. As you can probably guess, the thesis of the book is that modern technology, combined with an increasingly confusing, misunderstood or just downright ridiculous set of laws, means that everyone is committing felonies all the time, entirely without meaning to do so. In the opinion piece, it's argued that we really need to bring back the "intent to commit a crime" requirement, as it would put an end to a lot of these arrests. It makes a lot of sense, which is why it'll probably never happen.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    ChurchHatesTucker (profile), Oct 2nd, 2009 @ 4:57pm

    Hey!

    You've obviously got something to hide!

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Oct 2nd, 2009 @ 5:00pm

    If anyone out there is listening (and you know who you are), I totally disagree with this article. Laws of all kinds are doubleplusgood.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Matt (profile), Oct 2nd, 2009 @ 5:06pm

    Most criminal laws _do_ require some sort of mental state, although rarely intent to commit a crime. Typically, the mental state required is the intent to commit the wrongful act. That is probably the right requirement: if you intend to kill someone, it should be irrelevant whether you know or care that killing someone is against the law. You should still go to pokey.

    There are two problems. First, some of the biggest crimes do not require intent at all, or even _any_ culpable mental state. They are "strict liability": if you do the bad thing, even unintentionally, you go to pokey. Second, the laws are stupid, so it is nearly impossible to kinow in advance of your arrest whether what you are doing is legal. For instance, playing your car stereo too loud on a public street is probably a felony. Wha?!

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Richard (profile), Oct 2nd, 2009 @ 5:07pm

    True - and what about the cost

    100% with you on the intent thing - it's been bothering me for years but there's another point too the cost of it all

    It's strange to me that all the activities of the public purse that are supposed to help people in a nice positive way like education, healthcare (I'm in the UK) social security, old age pensions etc etc are always subject to severe spending limits. They say "well we'd like to purchase that drug to save your life but it's just too expensive" or "of course if we could afford to reduce class sizes we would". However when it comes to being nasty, pursuing people for crime - even for the most ridiculous non-crimes that we are talking about here No expense will be spared. No one says "well the law sort of says we should arrest this person but it would cost £10000 when all the paper work and court proceedings are done so we can't afford it".

    I also note (here in the UK) that air ambulances often have to be funded by public charitable subscription - but police helicopters that spend enormous sums of money pursuing pathetic teenage car thieves are funded by the state without a murmur.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Oct 2nd, 2009 @ 5:08pm

    An interesting idea, but imagine how difficult/impossible it would be to prove that someone intended to commit a crime. Either it would have to be defined so loosely that tax evasion, murder, etc. could be forgiven as an "honest mistake" (I really didn't know the gun was loaded, etc.) or defined so tightly that it would be useless in all but the most blatant cases of stupidity or innocence, such as this one. Simply having prosecutors/police that are reasonably intelligent not pulling stunts like these for some sort of political gain would solve the problem.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    WarOtter (profile), Oct 2nd, 2009 @ 5:15pm

    Not always necessary

    Just because intent cannot always be shown, does not mean that cases should be dismissed because of lack of intent. Granted, in this case, the prosecutor should bite his tongue and not charge the grandmother, since any jury would likely acquit her of wrongdoing. However, to say that something should not be a crime because intent was lacking would suddenly mean that many crimes would go unpunished. Arsonists would be freed early because they could not be held responsible for the death of someone inside the building they torched, and drunk drivers could not be held responsible for the family of four they killed because they had not intended to do so.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    BobinBaltimore (profile), Oct 2nd, 2009 @ 5:27pm

    Re:

    I'm not a lawyer (though I did spend a good deal of time in law classes in grad school likely misunderstanding half of what I heard...). But I don't think the issue here is proving intent, rather it is to establish whether there is a reasonable inference of intent. I'll admit that I'm mildly uncomfortable with even inferring intent, since, when misapplied, it can smack of thought-policing. But I believe, as does the WSJ piece, that the absence of consideration is causing some real problems. Unfortunately, when a law is written that simply says buying more that 3g of a LEGAL substance within a 7 day period is ILLEGAL full stop, it really doesn't leave room to accommodate easily predictable, perfectly reasonable circumstances that might arise.

    I agree that law enforcement should use discretion, but my read is that they are increasing under fire to follow the letter of the law in far too many cases...laws that are ill-formed, incomplete, overly-broad and too often ignore completely predictable unintended consequences. That said, I do agree that prosecutors and judges who just want to make a point, get re-elected, or go all paternalistic are a big part of the problem. So are incompetent or grand-standing legislators who rarely understand the issues on which the legislate.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Frank, Oct 2nd, 2009 @ 5:29pm

    #5 and #6 have it right

    Think of how easy it is to lie on a daily basis:

    "how are you today"
    "fine" (person actually hates his life)

    Now extrapolate that to trying to prove in a court under modern evidence rules that a person "intended" to commit a certain criminal action beyond his or her objective, visible actions. The police are following the laws as they are written, without intent. It is the job of the prosecutor to use discretion to drop unnecessary criminal trials based on her judgment beyond whether she could actually prove the crime.

    Here, I'd hope the prosecutor would decide, "Hey this strange lady likes to plan for the next flood by stocking up on cold syrup," and move on.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    BobinBaltimore (profile), Oct 2nd, 2009 @ 5:31pm

    Re: Not always necessary

    Agreed!

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Matt (profile), Oct 2nd, 2009 @ 5:42pm

    Re: Not always necessary

    Felony murder (the strict-liability crime that nabs the arsonist) at least requires an underlying felony. And drunk drivers are considered reckless, making the murder of the family of four a vehicular manslaughter charge. Those require at least _some_ culpable mental state.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Matt (profile), Oct 2nd, 2009 @ 5:46pm

    No one has mentioned yet how f-ing stupid it is that there is a limit on cough syrup. What, are we running out? The reason for the limit, of course, is because someone might do something illegal with large quantities of cough syrup. Or their car. Or a pair of nylon stockings.

    It is bad that this crime is apparently strict liability. It is worse that this law criminalizes perfectly legitimate conduct.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Mike Masnick (profile), Oct 2nd, 2009 @ 6:34pm

    Re:

    An interesting idea, but imagine how difficult/impossible it would be to prove that someone intended to commit a crime.

    Except... um... that's exactly how the law worked until recently.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    PrometheeFeu (profile), Oct 2nd, 2009 @ 6:40pm

    Re: Not always necessary

    Actually, involving intent does not necessarily have the effect you imagine. The arsonist intended to commit an illegal act. The fact that that illegal act had more consequences than he imagined does not detract from the fact that those are consequences of his illegal act. So he should face consequences for that too. However, flip the cases around and see if that makes more sense. First case: an arsonist sets a building on fire. A person happens to be inside and died while the arsonist thought the building was empty. Second Case: An arsonist waits until someone is inside a building before he sets the building on fire killing the person. Don't you think the second arsonist should face a stronger punishment than the first? I mean, isn't killing someone intentionally worst than killing someone unintentionally?

    Also, the US really needs to reduce its sentences... It's ridiculous and useless. When someone commits a crime, they assume that they will not get caught. They don't calculate the expected value of their jail sentence and the expected value of the benefit from the crime comparing which is higher. Basically, if you present someone with a 20 year sentence, they will act almost the same way as facing a 30, 50, 100 year sentence... It's forever and they REALLY don't want it. However, your wallet feels the difference between keeping a guy fed, housed and guarded for 10, 20 or 100 years...

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Lucretious, Oct 2nd, 2009 @ 6:49pm

    Maybe this has answered already but how the hell does the state track and find out you've bought over your limit of Pseudoehepdrine?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    ERH, Oct 2nd, 2009 @ 7:49pm

    Intent vs Liability

    I disagree that people shouldn't be responsible for their actions if the intent isn't in place. Someone has to be responsible to clean up their own mess, whether they intended to make a mess or not. If we say that people aren't responsible because they didn't have intent, then we are saying that the mess isn't their responsibility - then whose job to clean up does it become? The governments? The public's?

    At the very least, being held liable for your mistakes, even if they weren't intentional, encourages more circumspect behavior before incidents occur, thereby reducing the likelihood of incidents. Just because someone didn't mean to drop the hammer that killed a kid walking below doesn't bring that kid back to life.

    I think the problem is that we have laws against people doing things that shouldn't be illegal. It shouldn't be illegal to buy decongestants, it should be illegal to make or contribute to the creation of drugs, for example. It shouldn't be illegal to cut the tags off a mattress.

    Frankly, I think all laws should have an acid test as to whether or not they should be laws based around the public good and protection of individuals. If the law doesn't speak to that, then it shouldn't be a law. And if it is, it ought not to be enforced.

    Personally, I'm specifically against laws that are for the corporate good over the public good.

    Regards,
    ERH

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    btr1701 (profile), Oct 2nd, 2009 @ 8:03pm

    Re: #5 and #6 have it right

    > Now extrapolate that to trying to prove in a court under
    > modern evidence rules that a person "intended" to commit
    > a certain criminal action beyond his or her objective, visible
    > actions.

    The problem with your argument is that until the last 20 years or so, that's exactly what the prosecution had to do. Most all criminal laws had an intent element that the state had to prove beyond a reasonable doubt. There were only a very few strict liability crimes for which intent was irrelevant to guilt.

    Now we're seeing more and more statutes passed with no intent element included. Why? Because it's too much trouble for the government to bother with any more. And it gets in the way of "protecting the cheeldrunnn".

    As a cop (and a federal one, to boot) I can personally vouch for the fact that the premise of the book referenced above is correct: every single person unwittingly commits multiple crimes every day and if you end up targeted by law enforcement for whatever reason, it's actually a simple matter for a cop or agent to find something to charge you with.

    According to a Louisiana State University Law School study, there are at least 4,450 offenses in federal criminal law, which updates a 1983 count conducted by the Justice Department itself. That tally found more than 3,000 criminal laws — meaning that in just 25 years Congress has created some 1,400 criminal offenses.

    Of course the study admitted that they couldn’t be sure they had found them all because Congress has scattered criminal offenses throughout the tens of thousands of pages of the United States Code.

    From 2000 to 2007, 454 federal crimes were added. That’s an average of about 56 new federal crimes a year, or about one new crime a week. And hundreds and hundreds of these new offenses criminalize conduct that no one but a government lawyer would imagine is criminal.

    A few examples:

    •An Alaskan inventor who never had so much as a traffic ticket was arrested, indicted and prosecuted by the feds because he failed to put the right sticker on a UPS package. He had no idea the sticker was required, and everything else about his shipment was perfectly legal.

    But after being arrested and handcuffed, face-down on the pavement, by a half-dozen SWAT-team officers aiming assault rifles at him, he’s now spending almost two years in federal prison.

    •Fisherman David McNab, a seafood importer, and a seafood distributor are all serving eight-year sentences in three U.S. prisons because McNab packed his catch in a manner that allegedly violated a Honduran regulation. It made no difference to the American courts that the highest officials of the Honduran government certified that McNab had, in fact, violated no Honduran law.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    btr1701 (profile), Oct 2nd, 2009 @ 8:08pm

    Re: Intent vs Liability

    > Someone has to be responsible to clean up their own mess,
    > whether they intended to make a mess or not.

    How does throwing someone in prison make them available to "clean up their own mess"? Being in prison pretty much guarantees someone else will have to do the cleaning.

    And no one's saying people shouldn't be *liable* for their actions, even unintentional ones. But that's what civil courts are for. All we're saying is that people shouldn't be arrested, tried and imprisoned for that which they never intended to do.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    ERH, Oct 2nd, 2009 @ 10:10pm

    Intent vs Liability

    > All we're saying is that people shouldn't be arrested, tried and imprisoned for that which they never intended to do.

    That's genuinely not what I got out of the article. The statement above focuses not on whether or not a person is responsible at all as opposed to whether or not circumstances ought to -mitigate- punishment. I rather had thought I read that if you don't intend to do the crime, you ought not to be punished.

    Also, I'd like to note that I think the scary examples of the use of unusual laws to abuse positions of power above make me rethink once again the wisdom of a state being sovereign over its people. Just scary.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Oct 2nd, 2009 @ 11:14pm

    Noam Chomsky said it best ...

    "You are responsible for the predictable results of your actions."

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    okwhen (profile), Oct 3rd, 2009 @ 12:56am

    Stupid laws for stupid people

    The intent of state and government is to blanket us with laws vast enough to confuse. After all, there is no excuse for ignorance of the law. Even lawyers have no idea of all the laws on the books. Our country has the best laws money can buy. No matter what you circumvent, such as including intent, they will simply change the playing field. The states and government treats the people and secondary to their success. Conclusion, laws may get you arrest however it is the stupidity of the jury that locks you up.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    The Idiot, Oct 3rd, 2009 @ 2:03am

    Well, here's an amusing statistic (if, by amusing you really mean shenanigan-filled):

    In the UK, since 1997, there have been 3,400 new criminal offences added to the code. And intent was removed from the law in 2003, when the Terrorism act came into effect.

    And those are both in the UK. Just a thought.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    PT (profile), Oct 3rd, 2009 @ 2:06am

    Re: Re: #5 and #6 have it right

    "... in just 25 years Congress has created some 1,400 criminal offenses."

    Perhaps if the media would stop calling them "lawmakers", and instead call them what they are, "representatives", they wouldn't be quite so productive.

    Besides, it's bad journalism. The media and press knows perfectly well that "lawmakers" are hired, not elected.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Richard (profile), Oct 3rd, 2009 @ 3:47am

    Re: Noam Chomsky said it best ...

    "You are responsible for the predictable results of your actions."

    Exactly right and the problem with the law now - on both sides of the Atlantic - is that (goaded by the sensational press) the law is being applied to the actual results instead. The outcome of this is to punish the unlucky.

    I'll give an example.

    In 1994 Chef Michael Caines (now quite well known in the UK) fell asleep at the wheel. His car spun off the road, rolled over, and he lost an arm. However, as far as I am aware, he was never prosecuted.

    A few years later another driver fell asleep at the wheel. By misfortune he went off the road at a point without adequate barriers, careered across a field and ended up on a main railway line. Woken by the incident he contacted the railway authorities but it was too late - by mischance an express train was already within about a minute of his car and could not be stopped. Now trains are of course much heavier than cars and so the train was not seriously damaged by the incident. It was however derailed. Under normal circumstances it would just have slowed down, a few people would probably have acquired minor injuries and that would have been that. Unfortunately a heavy goods train was traveling in the opposite direction and there was a major impact with significant loss of life. He was sentenced to five years in prison.

    Now what he did (driving whilst tired) was exactly the same as what Michael Caines did (and it is also quite common - I believe anyone who has driven a car for more than 10 years is practically certain to have done it at some time). The difference was just bad luck.

    You can even estimate how bad. His journey was about 100 miles and the "window of opportunity" for getting onto the railway line cannot have been more than 20 meters wide giving a 1 in 8000 probability. Combine this with the probability of his speed being in the correct range (say 1 in 4), the probability of the express being within 3 minutes (say 1 in 10 - it was night time with few trains) and the probability that the goods train was where it was (say 1 in 30) and you have a combined probability of around 1 in 10 million (and I have been conservative in my estimates).

    Of course we know why he was prosecuted so severely. It was to distract attention away from the fact that the highways agency had not fenced off the road from the railway adequately - which was the real cause of the incident.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Richard (profile), Oct 3rd, 2009 @ 4:24am

    Re: #5 and #6 have it right

    Now extrapolate that to trying to prove in a court under modern evidence rules that a person "intended" to commit a certain criminal action beyond his or her objective, visible actions. The police are following the laws as they are written, without intent.

    Two problems with this. First it does considerable damage to a person's life (often the more damage than the eventual punishment if you started as a "respected member of the community") simply to have the police investigate you. SO the fact that the prosecutor eventually drops the case may not be much comfort to you. The expense of the police investigation to the public purse should also be considered here.

    Second the "intent" thing has never been interpreted as a strict requirement to prove the exact mental state of the defendant. In practice it revolves around proving that the defendant had motive (in practice the test might be if a reasonable man would have had motive) and sufficient knowledge of the likely consequences of his actions (eg did the arsonist know there was someone in the building).

    Only if the defendant used some kind of "insanity" defence would his actual mental state enter the equation and few defendants will try to use that defence without basis - for reasons that should be obvious.

    The law here used to distinguish between deliberate actions (most serious), reckless actions (where the intent was an intent to ignore the possible consequence), negligent actions (usually a civil matter and generally coverable by insurance) and sheer bad luck.

    For example

    Drive your car directly at your wife's lover in order to kill him - deliberate.

    Drive your car twice over the speed limit and/or drunk and hit a pedestrian - reckless.

    Drive a little too fast on an icy road (but within the speed limit) lose control and hit a pedestrian -negligent.

    Meteorite fall from sky and causes your bonnet to flip up - obscuring your view - and hit a pedestrian. Bad luck no one is liable.

    In a suicidal mood attempt to drive your car into a wall - but actually hit pedestrian - mitigation due to diminished responsibility.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    HelpfulJonesey, Oct 3rd, 2009 @ 4:51am

    I think...

    The world needs more "Andy Taylors" and far fewer "Barney Fifes".

    All law enforcement officers are allowed a rather wide margin of discretion in the performance of their duties -- simply because it is impossible to legislate for each and every conceivable set of circumstances.

    It is the job of law enforcement management to ensure that discretion is used appropriately. It is also the prosecutor's job to decline to prosecute those cases that do not merit prosecution.

    However, we have the government we deserve. The general sense of right & wrong back in the 50's and early 60's became passe'/uncool and our societal mores have changed -- most would argue they have changed for the worse. Since the govt we elect (and demand) generally reflects society (they are just "people"), we get the govt we deserve.

    But it would sure be nice if we had more "Andy Taylors" and far fewer "Barney Fifes"...

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    gr8oldies (profile), Oct 3rd, 2009 @ 5:24am

    Re: I think...

    Good point.It seems that law enforcement has this "Nail Em And Jail Em All" attitude it's all black and white there is no common sence used now days.I mean come on now a grandmother making meth? give me a break come on use your noodle.I'm sure with just a small effort from the cops they could have figured this one out.

    I have a friend that is a cop and he was whining to me that no one ever calls them for domestic squabbles anymore. And I told that's because when you guys show up somebody always has to go to jail and it ends up costing em a whole bunch of money that they probably don't have instead of sitting em down and working out the problem(which is what you used to do)

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    DS, Oct 3rd, 2009 @ 5:47am

    It's sad, intent is considered for some things (murder), which indicates that we do consider intent to be part of the equation, but when there are headlines involved, and votes to be got, who cares about how the laws actually work.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Jesse, Oct 3rd, 2009 @ 7:19am

    In this particular case, perhaps the intent of the law needs to be better coordinated with the law. The only reason that buying a certain quantity of cold drugs is illegal is because they are worried about meth production, but it is not as though a meth producer that bought less than the limit wouldn't still be charged, right? Why not say that if a person buys more than the limit, that is enough to get a warrant for a search?

    I am not sure what other laws a problematic like this one (probably many), but in addition to taking the intent of the defendant into account, I think the intent of the law is important too...

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    Jimmy the Geek (profile), Oct 3rd, 2009 @ 10:35am

    This is intentional.

    The powers that be want all of us breaking the law all the time. That way, if you become a problem then they can neutralize you with an arrest and make you look like a criminal.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Ron, Oct 3rd, 2009 @ 2:10pm

    Common Sense

    I don't disagree that "intent to commit a crime" needs to comeback but what is needed even more is the return of common sense. At every turn the need to exercise a little critical thinking is removed in favor of "zero tolerance" policies. It's really no different than the high school ball player being arrested for having a weapon in his car at school when that weapon is a baseball bat. Or the girl arrested for having a steak knife in her car. No one wants the responsibility for making a decision so they shut down their brains and say "we have no choice, it's the law." Critical thinking and common sense are on the verge of being dead in America.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Gene Cavanaugh, Oct 3rd, 2009 @ 2:22pm

    Intent in criminal law

    In the opinion piece, it's argued that we really need to bring back the "intent to commit a crime" requirement, as it would put an end to a lot of these arrests. It makes a lot of sense, which is why it'll probably never happen.

    That proves that "the only experts are people who know little or nothing about the subject".

    The reason intent is left out is that it is too hard to prove, and skilled lawyers were putting hardened criminals back on the street - sure, it would be nice, just like it would be good to require photographic evidence of every crime - if you could make it work!

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Bradley Stewart, Oct 3rd, 2009 @ 3:26pm

    There's The Spirt And Then There's

    the intent of the law. A very obvious example of this would be if one were walking down the street with a news paper tucked under ones arm and without knowing it a section slipped out and fell on the street. As luck would have it a copper standing across the street happened to notice what had happened and also noticed that the individual just walked away from the fallen section. Should the Policeman give this person a ticket for littering? Of course not. Yet if the Policeman only considered the intent of the law surely a ticket would be given.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    anon, Oct 3rd, 2009 @ 3:51pm

    Lets say you live in a state where sodomy is illegal

    You have consensual sex, its dark. You are drunk. You slip it in the wrong hole.She likes. She tells her sister. Her dad finds out. He is the local District Attorney. You get fined or go to jail.

    Intent matters

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Fred McTaker (profile), Oct 3rd, 2009 @ 6:46pm

    Re:

    Intent is already an important part of most crime law definitions. That's why "temporary insanity" is still an acceptable yet difficult line of defense in a murder case -- if you were insane, your actions cannot be attributed to intent. "Premeditated" actions are also punished more harshly than accidents or even crimes of "negligence". The problem Mike and the WSJ are talking about here actually have more to do with laws designed to predict and prevent crime, rather than solve any actual crime.

    My parents were both cops when I grew up, and I know how they think. They are continuously frustrated with their inability to really prevent crime on their own, yet having to deal with the invariably depressing aftermath. So, being the types with a law enforcement hammer, and thus seeing all crimes as nails, they work with politicians and legislators to interpret actions that *usually* lead to crimes, and re-define them as crimes within themselves. Thus the law about hording pseudoephederine products -- that's something Meth manufacturers do way more often than anyone else, so rather than having to prove the crime of methamphetamine manufacture after the fact, they just make this preparation step a crime in itself.

    I personally think a better approach is to deal with the social and community problems that lead to crime, rather than attempting to "prevent" crime by criminalizing pre-crime actions. In fact I think community development is the only ethical way to lower crime rates, and criminalizing (even statistically valid) pre-crime actions is a horrible encroachment on personal liberty. Everything else constitutes trying to make cops into psychics, and they can't do that on TV very well yet, much less in real life.

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Fred McTaker (profile), Oct 3rd, 2009 @ 6:54pm

    Re:

    Pharmacists have Federal, FDA, and State regulations they need to abide by to operate and keep their license. After the Pseudoehepdrine limit laws were passed, one of those regulations became reporting sales of Pseudoehepdrine products, with special attention to large sales.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 10:52am

    Re:

    Most criminal laws _do_ require some sort of mental state, although rarely intent to commit a crime. Typically, the mental state required is the intent to commit the wrongful act.

    Exactly. BobInBaltimore and Mike seem to arguing for some sort of standard where you have to first prove that someone knew an act was illegal before they could be convicted of it. That would seem to me to be likely to create a system where ignorance would truly be bliss and it would to an individual's advantage to remain as ignorant of the law as possible.

    I don't think I've ever known of a case where someone went out and broke a law simply because they just wanted to "break a law". No, they always had some other intention, such as personal gain, for example. Is "personal gain" illegal per se? No. So, should that excuse otherwise illegal activities to that end? I don't think so.

    Another example are the drug laws. If a person's intention is to make themselves feel better (not illegal per se), should they be exempt from any drug laws they violate in the process? Some people would argue "yes", but so far society in general has said "no".

    And that brings us to the case of the grandmother. Her intention may have been simply to obtain drugs to make herself feel better, but that is still no legal excuse to violate the law. It may be a bad law, but that's a different issue from whether or not she violated it.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 11:01am

    Re: Re:

    Except... um... that's exactly how the law worked until recently.

    Except... um... it didn't.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 11:33am

    Re: Re:

    Intent is already an important part of most crime law definitions. That's why "temporary insanity" is still an acceptable yet difficult line of defense in a murder case -- if you were insane, your actions cannot be attributed to intent.

    Whoa, whoa, whoa...
    The insanity defense usually requires that it be proven that the defendant was "unable" to realize that their actions were illegal. Not that they actually did. And even then the burden of proof is on the defendant. That's hugely different from ignorance of the law or even requiring that the prosecution prove that their primary motivation, or intention, was a desire to break the law.

    Insanity and lack of intent are not the same thing. If they were, then the grandmother in this story that so many keep claiming had "no intent" could just as well claim "insanity". Good luck with that one.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 12:18pm

    Re: I think...

    It is the job of law enforcement management to ensure that discretion is used appropriately. It is also the prosecutor's job to decline to prosecute those cases that do not merit prosecution.

    Then let's just make everything illegal and let law enforcement use their "discretion", otherwise known as "selective enforcement".

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 1:09pm

    Re: Lets say you live in a state where sodomy is illegal

    I'm not sure how many states still have sodomy laws, but what you describe is certainly within the bounds of what those laws were intended to cover.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    Squashed, Oct 4th, 2009 @ 2:39pm

    Re: Common Sense

    I don't disagree that "intent to commit a crime" needs to comeback but what is needed even more is the return of common sense. At every turn the need to exercise a little critical thinking is removed in favor of "zero tolerance" policies.

    I've had a little experience with cops applying their "common sense" and "discretion". Back when I was a teenager (many years ago) I was rear-ended by a drunk driver while stopped and waiting to make a left turn. I can't say for sure how fast he was going when he hit me, but the speed limit there was 60 MPH. The collision completely totaled both vehicles and several witnesses and onlookers stopped to offer aid. I was pretty banged up, but no broken bones or lacerations (my seat belt kept me out of the glass). The other driver was driving a big, brand-new Cadillac. He got out smelling like a brewery and staggering drunk and the witnesses there all wondered how he managed to drive at all. Well the highway patrol finally got there (two of them) and the guy introduced himself to them as "***** *****, President of ***** Oil Company". Think he went to jail? No way. The troopers exercised their "common sense" and "discretion" to decide that the state's drunk driving laws obviously weren't intended to apply to oil company presidents. In fact, one of them even gave him a VIP ride home so that he wouldn't have to wait for a ride. Trying to get his insurance to even pay for my car since "he didn't even get a ticket" was then another battle.

    Law enforcement "common sense" and "discretion"? Yeah, I know all about how that works.

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Tek'a R (profile), Oct 4th, 2009 @ 5:14pm

    Re: Re: Common Sense

    you seem to be conflating different terms in your eager bid to send grandmothers to jail for buying medicine.

    What happened in your case, it it happened at all, was corruption and abuse of power. Likely some bribery, etc. There is a world of difference between a dumb cop easily awed by a big name and a smart law enforcement officer who knows when it would be against the best interests of the public to follow the letter of the law.

    think before you make foolish statements, please.

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Anonymous Coward, Oct 4th, 2009 @ 8:20pm

    Re: Re: Re: Common Sense

    What happened in your case, it it happened at all,

    You mean "if" it happened at all? I can assure you it happened and there were plenty of witnesses. Do you usually go around calling people liars without any evidence? If so, then I can just imagine what your idea of "common sense" and "discretion" must be like. Does your "common sense" tell you that anything that conflicts with your preconceived notions must be untrue?

    was corruption and abuse of power. Likely some bribery, etc.

    Again, do you have anything to back that accusation up, or are you just making crap up based upon your "common sense"?

    There is a world of difference between a dumb cop easily awed by a big name and a smart law enforcement officer who knows when it would be against the best interests of the public to follow the letter of the law.

    Oh, so "discretion" should be reserved only for "smart" cops, huh? What do you propose to do, put signs around their necks saying things like "Dumb Cop" or "Smart Cop"?

    think before you make foolish statements, please.

    Common sense says that you should follow your own advice.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Ed, Oct 5th, 2009 @ 8:26am

    Richard illustrates the heart of the point, with his stories of two different drivers falling asleep. The law (whether as written or as now interpreted) is more concerned with headlines and scapegoats, than genuine crime and punishment. The media, and therefore the public needed someone to "blame" for the train accident. In the grandmother's case a prosecutor wanted to look good, like he was hard on drugs. So, he took a hard line attitude, which basically resulted in his looking like a fool (to sane people at least). Under these circumstances, common sense goes out the window.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Mike, Oct 5th, 2009 @ 12:01pm

    Should it always?

    Your opinion doesn't seem to fit with your previous opinion in the Lori Drew case. It seems her intent was obviously malicious and yet you want to continually shout from the rooftops how she's unfairly being railroaded as the "face of cyber-bullying". Was bullying Megan Meier her intent or not?

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This