Pirate's Cove

Well, here’s something one doesn’t see in the Leftist opinion pages of the NY Times: support for a Republican proposal. Granted, it’s written by Gideon Yaffe, a professor of law at Yale, not the hoity toity Editors, but, it is unusual

(NY Times) THESE days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposalfavored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind. That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.

As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be. Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it. Ordinary citizens may assume that this common-sense requirement is already the law of the land. And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it.

That is a very interesting proposal, which goes along with many other justice system reforms offered by the GOP in Congress. This particular idea comes from James Sensenbrenner, and would apply to many, many more laws. The article notes many convictions where this would come into play, such as

…the president of a company that mistakenly shipped mislabeled drugs was convicted of a crime even though he had no way of knowing that the labels were incorrect. In another, a truck driver crossing the Canadian border into Washington to deliver cases of beer was convicted of drug trafficking even though prosecutors produced no evidence that he knew or should have known that the truck had a secret compartment filled with drugs.

Democrats are whining that this would make it harder to go after corporate executives whose companies cause harm, but, that’s what we have jury trials for, and, the proposal would not apply to all. Certainly, if someone murders another person, the murderer would not be let off because he/she didn’t have a “guilty mind”. Here’s where the article breaks down a bit

Consider a New York law banning “gravity knives” — folding knives that open with a flick of the wrist — that lacks mens rea protections. The statute does not require proof that a defendant knew her knife was a gravity knife, much less that gravity knives are banned in the state. As a result, the law has been used by the police in New York City to pick up thousands of people, most of them minorities, even if they had the knives for innocent purposes. And in Baltimore, Freddie Gray died in a police van after being arrested for violating a very similar statute that also lacked a mens rea requirement.

There is still the notion that “ignorance of the law is no excuse”. And picking people up is different from prosecuting them, which is where mens rea is aimed. It’s not really up to the police to determine mens rea, though, of course, there are times they have discretion. Making police determine will gum up the legal system. Freddie Gray supposedly had an illegal knife on him. He was a habitual offender. It was the officer’s job to pick him up and take him to be charged. It was the government legal system’s job to determine whether it should be taken to court.

Is this a good idea or bad idea? Sensenbrenner’s amendment only applies to federal criminal cases. We see this in subchapter B

“(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

I get the sense that this is aimed more at the myriad amount of laws passed by Government that people really do no know, because they pass quite a few. Think of all the people prosecuted by the IRS for failing to follow some law, one which the IRS agents probably didn’t know.

Anyhow, what do you think: good idea or bad idea?

Crossed at Right Wing News.