Posts tagged criminal justice
12:07 pm - Thu, Jul 19, 2012
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The War On Drugs As War On Fundamental Principles Of Criminal Justice


Actus non facit reum, nisi mens sit rea.

“There can be no guilty act without the guilty mind.”  

It is a fundamental principle of Anglo-American justice that you cannot be guilty of a crime unless you intended for it to happen.  There are of course multifarious nuances in the analysis of what constitutes intent on the part of an actor.  But the basic principle remains.  We should only punish people who intend to do wrong.

At common law, every crime was minimally composed of two elements: the Actus Reus (“evil act”) and the Mens Rea (“evil mind”).  What makes an act worthy of punishment is not merely the harm it visits on others, but the state of mind of the actor.  We punish a person who kills intentionally moreso than a person who kills accidentally because the former is, ceteris paribus, a greater risk to his peers, and less likely to have future conduct influenced by remorse.  We fear a murderer who kills in cold blood more than a negligent driver who accidentally hits and kills somebody because the driver was distracted by, e.g., texting or lighting a cigarette, because the latter is less likely to kill again, or be unmoved by remorse.  So we punish them less.

For those of you unfamiliar, there are generally four levels of Mens Rea:

1. Knowledge/Purpose: this describes a state of mind in which the actor either intends a certain result, or knows with substantial certainty that their actions will lead to a certain result. (example: if I stab somebody in the chest, I can be charged with knowledge with substantial certainty that my act will lead to their death).

2. Recklessness: this describes a state of mind in which the actor doesn’t have purpose to achieve a certain result or knowledge with substantial certainty, but nonetheless knows there is a substantial likelihood that their actions will lead to a certain result, yet proceed anyway.  (example: disciplining a child by breaking a beer bottle over their head instead of spanking them).

3. Negligence: this describes a state of mind in which a reasonable person under the circumstances would have taken precautions to prevent a certain result from occurring.  (example: failing to recognize that an individual is under-age prior to engaging in sexual intercourse with them).

4. Strict Liability: this describes…no state of mind at all.  Strict liability is not so much a fourth category of Mens Rea so much as the absence of the other three forms of Mens Rea.  

It is this last category that generally leads to the greatest controversy.  Strict liability has expanded in recent years, as legislatures and courts abandon fundamental criminal law principles for administrative convenience.  ”Tough on crime” policies have encouraged lawmakers and jurists to take the easy way out; and they are of course supported by a Supreme Court who shares Benjamin Cardozo’s fear of allowing the criminal to go free because the constable blundered.

Many drug crimes are strict liability crimes.  State drug provisions are shot through with rebuttable presumptions of ownership.  Mere possession is often evidence of intent: unwittingly slipping on a pair of jeans with a vial of heroin that belongs to your friend makes you a felon, whether you did it intentionally or not.

Many drug crimes are in fact strict liability crimes, though not all states treat them as such.  Florida, however, has decided not to sweat fundamental principles of criminal law:

Florida will remain one of the only two states in the country that sends people to prison on drug possession charges without first proving the person knew what they were carrying was illegal.

In a decision that will assure thousands will remain behind bars on a charge that many defense attorneys and some judges insist is blatantly unconstitutional, a divided Florida Supreme Court on Thursday upheld the state’s drug possession law.

“There is no constitutional right to possess contraband,” Justice Charles Canady wrote for the majority. “Nor is there a protected right to be ignorant of the nature of the property in one’s possession.”

Dissenting Justice James E.C. Perry makes the obvious point about “what it would be like if this principle applied to other laws:”

Could the legislature amend its murder statute such that the state could meet its burden of proving murder by proving that a defendant touched another and the victim died as a result?” he asked, quoting from a federal judge who like several circuit judges in the state struck down the statute as unconstitutional. “Could the state prove felony theft by proving that a defendant was in possession of an item that belonged to another, leaving the defendant to prove he did not take it?

This is yet another casualty of the Drug War.  Strict liability crimes existed long before the War on Drugs came into existence, but generally they were viewed with extreme suspicion by judges who were schooled in the fundamental principles of the criminal law.  Historically, strict liability crimes were only used where it is extremely difficult or impossible to prove the intent necessary to demonstrate that a particular crime was committed.  

At no time in history, however, have so many state judges become comfortable with strict liability crimes on the scale they are implemented today.  When a prosecutor doesn’t have to prove intent, it becomes much, much easier to convict people of drug crimes.  You can safely bet that this has contributed in no small way to the swelling of America’s prisons with non-violent drug offenders.

Unfortunately, for many state legislators, and judges with a retributive streak, none of this matters.  All that matters is getting those dastardly drugs off the streets.  All that matters is punishing the addicts, the junkies, or the dealers; small-time or big-time, doesn’t matter.  Throw them all behind bars.  And if that means we need to cut down fundamental principles of criminal law to get at those evil drugs, so be it.

The following exchange from A Man for All Seasons, via Erik Kain, comes to mind:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!


(via theamericanbear)

9:44 am - Fri, Jun 22, 2012
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Privatized prisons save money by employing fewer guards and other workers, and by paying them badly. And then we get horror stories about how these prisons are run. What a surprise!
Paul Krugman, Prisons, Privatization, Patronage  (via wisconsinforward)
3:30 pm - Wed, Mar 28, 2012
1,047 notes

The difference between Trayvon Martin and Allen Coon.


This story has been spreading around on conservative blogs and message boards for the past week or so, as the Trayvon Martin story’s gathered momentum. The short version of it is that a 13 year old boy in Kansas City was attacked by two black teenagers, set on fire, and told, “That’s what you get, white boy.”

It’s a horrible story and I’ve zero interest in arguing that one is “worse” than the other. Conservative blogs, meanwhile, have been pointing to the fact that Trayvon Martin’s story has been the subject of a lot of interest and attention, while Allen Coon’s has not, as proof that “it doesn’t matter” because the victim was white.

Here is exactly why that’s absurd: Because it does matter that Allen Coon was attacked. It matters so much that the police immediately responded. They branded it ahate crime. They conducted an investigation, and put out an APB on the attackers. They treated it exactly the way that police treat crimes that matter.

So there’s no need to hold vigils for justice in the case of Allen Coon, because justice has swiftly and readily been sought by the people tasked to seek justice.

The reason people are outraged over Trayvon Martin’s shooting is not, ultimately, because a black teenager was shot. That happens all the time, frankly. What people are outraged about is that the police didn’t seem to treat it as though a crime had occurred. They don’t feel as though justice was sought on behalf of Martin or his family, and that is why they’re outraged. This isn’t about “no child should ever be attacked and society should not rest when it happens,” because we don’t live in a world where that would be practical. It’s about the police, and the prosecutors, in Florida who failed to seek justice in any way that the people observing the case recognize as seeking justice.

Or, in short: Allen Coon’s attack was tragic and wrong, and if the police had responded to Trayvon Martin’s in the same manner that they had responded to Coon’s, this would never have become anything close to a national news story.

(via karnythia)

12:08 pm - Thu, Sep 22, 2011
60 notes
My son was conceived in Texas. A place where my family has lived in relatively the same place for nine generations. Texas is the place where my family’s home and labor and blood are built in the soil. Where their race had for most of those generations determined their destiny. James was also conceived in “the field” or what social scientists call the places where we conduct our research. For just one year I had returned to Texas to immerse myself in this place where my intellectual efforts, if not my body, are always toiling. I visited death row. I attended hearings. I sat next to lawyers who were my teachers and models for how to be a lawyer and the ability of lawyers to change and save lives. I read. I wrote. I conceived a child. Despite being submerged in the history and sadness of the death penalty, I had not connected that part of my life to the part that was about to be a parent until the day the sonographer said, “it is definitely a boy.” Happiness became worry when I thought about the black men I had met in prisons, jails, and other unproductive places over the years. I thought about how easy it can be for black men to be caught up in a system that does not value their survival or preservation. I thought about the first day he would be pulled over by the police for performing the ordinary task of driving an automobile. I thought about the intra-racial contests of masculinity that have lead to young black men being, at times, their own worst enemy. I thought of how, because he is my child and will surely have my mouth, the public school system will try to pathologize what I know to be precociousness. I thought about my father who only learned the grown up art of parenting a few years before his death with his 14th child and 3rd son who was too young at his death to fully benefit from his late maturation. All I could see were the negative statistics on the lives of black men I trade on in my professional life. If I could save anything with my work, it would be those first hours of elation without the gradual worry for the physical and mental health of the black man in my womb now born. When asked by Nikky Finney what I would save to do the work I do, I thought about that day when modern medicine confirmed what I knew from mother wit? I would save the world, if I could. I would save it for James and all the other black men, women and children, high yellow and pitch black whose mothers have the right to have their burden of worry free from the concern that their children’s blackness will make them vulnerable in ways our arms and love will not be able to protect them.
3:41 pm - Mon, Sep 12, 2011
597 notes

Most Horrifying Sentence on Our Site Today


Texas’ Deputy Attorney General for Criminal Justice, Don Clemmer, later testified that his office didn’t have the resources to investigate allegations of sexual abuse at a TYC facility in Ward County because at the time the local agent was busy investigating charges of voter fraud by a 68-year-old Hispanic woman.

Your morning must-read: Why did Rick Perry wait six years to clean up the culture of child rape at Texas youth detention and rehabilitation centers?

(via amorphousblob)

1:14 am - Sun, Sep 4, 2011
64 notes


Sheriff Saves $1 Million By De-Privatizing County Jail

Sheriff Michael Page of Hernando County, Florida, is the latest in a line of Sheriffs to inherit the headache that is the county jail. After being operated by CCA for 22 years, the facility had fallen into exceptional disrepair, after CCA had neglected to perform millions of dollars worth of required maintenance. The county took over the facility a little more than a year ago and started the long process of upgrading the security, staff, and conditions of the jail.

Initial projections by then-Sheriff Richard Nugent hypothesized that the county could save up to $200,000 compared to what CCA would have charged. It turns out that de-privatizing the jail has actually saved Hernando County taxpayers more than $1,000,000 this year. Maybe Ric Scott and JD Alexander ought to reconsider their bullheaded push to privatize half the state’s prison system.

Imagine that…

11:24 am - Fri, Aug 19, 2011
19 notes

Surprise court hearing for “West Memphis 3” spurs hopes



 A judge has called a surprise hearing for Friday concerning three men - known as the West Memphis Three - convicted of “satanic” killings in 1993 of three 8-year-old Cub Scouts in Arkansas.

 The announcement on Thursday fueled speculation among supporters that the hearing could mean good news - including a new trial and possible release from prison - for those who believe the men were wrongly convicted.

I don’t have enough flail to express how excited this makes me. 

Convicted with no physical evidence, largely on the basis of a coerced confession from a mentally disabled person that was riddled with factual errors.

I showed the episode of Cold Case that was based on the West Memphis 3 case for extra credit in a general sociology class, and all the students in the discussion afterwards were all, “BUT THE COPS CAN’T REALLY DO THAT.”   And I was like, “The cops do that all the time.  And get convictions.”  They were flabbergasted that almost none of the basic facts of the case had been changed for the episode.

(Source:, via knitmeapony)

10:40 am - Thu, Aug 11, 2011
39 notes


Recent DNA testing has proven the innocence of 10 men from Cook County, Illinois who were forced to confess as children to crimes they didn’t commit. Some of them have been imprisoned for nearly 20 years. Despite the overwhelming genetic evidence, which has linked the crime to the real killers, State officials have refused to recognize their innocence.‬

More information here.

Take action here.

HT: Karen Fink.

(via )

8:05 pm - Thu, Jul 28, 2011
137 notes
Nothing can be done to bring Mr Breivik’s victims back to life. The most compelling, non-mystical case for vengeance is that it offers some consolation to those wracked by desolation and fury at the murder of their loved one. But the point of a criminal justice system in a civilised society is not the mental peace of those collaterally wounded by crime. All evidence supports the proposition that Norway’s criminal justice system is both practically and morally superior to America’s. If America’s abominably cruel and unjust system delivered results even remotely comparable to Norway’s enviable level of civil peace and order, then there might be some reason to take seriously American animadversions against Norway’s short sentences and humane prison. But we don’t. We’re not even close. So Americans should just shut up and watch. It could do us some good to see how a civilised society handles such a horrifying crime.
5:01 pm - Fri, Jul 15, 2011
58 notes


Perverted Justice: Sex offender laws represent the triumph of outrage over reason

American policies regarding sex offenders mark them as a special category of criminals for whom no stigma is too crippling, no regulations are too restrictive, and no penalty is too severe. This attitude, driven by fear and outrage, is fundamentally irrational, and so are its results, which make little sense in terms of justice or public safety. Like the lustful predators of their nightmares, Americans pondering the right way to deal with sex offenders seem captive to their passions. […]

Human Rights Watch interviewed the father of a 10-year-old boy accused of touching his 5-year-old cousin’s genitals. “My son doesn’t really understand what sex is,” he told the group, “so it’s hard to help him understand why he has to register as a sex offender.” This policy of tarring minors as sex offenders undermines a central aim of the juvenile justice system by burdening people with the mistakes of their youth for the rest of their lives. […]

State penalties for possessing child pornography can be even harsher. In Arizona, one count of possessing child pornography carries a 10-year mandatory minimum sentence, each image qualifies as a separate count, and the sentences must be served consecutively. That’s how Morton Berger, a former high school teacher with no criminal record, ended up with a 200-year sentence in 2003.

In 2006 the Arizona Supreme Court upheld Berger’s sentence, rejecting his argument that it violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Writing in dissent, Vice Chief Justice Rebecca Berch noted that “Arizona’s sentence for this crime is by far the longest in the nation and is more severe than sentences imposed in Arizona for arguably more serious and violent crimes.” For example, “the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault. A presumptive sentence for possession of two images of child pornography…is harsher than the sentences for second degree murder or sexual assault of a child under twelve.…For molesting a child, one might receive the same sentence that Berger has received for possessing one picture.” […]

Worth reading in full.

I once worked for a town government that, in conjunction with county government, was always looking for ways to drive sex offenders into Long Island Sound by restricting where they could live and work. At one point, the County began to house homeless offenders in trailers, which they would then tow to different public lands, so that residents wouldn’t be exposed to living within the vicinity of ex-cons. Of course, the offenders were homeless due in part to the restrictions placed on their place of residency. Cruel and irrational.

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