February 10, 2005

How Does The Supreme Court Work?
#3 Mens Rea, Justification and Affirmative Defenses

I've written two pieces on the SCOTUS and I expect at one point to post them on my website under tutorial issue articles, but for right the blog will do. The first one is available here and the second one here. This one is not strictly on the Supreme Court, but rather toward courts in general. I think it applies since in the US all federal tribunals and courts are inferior to the Supreme Court and ultimately answerable to that body.

The most fundamental tenet of common law court systems is that the rights of the accused must be afforded the utmost protection, therefore the principle every child knows: you are innocent until proven guilty. This gives rise to related protections and concepts, most notably the idea that a criminal conviction must be proven beyond a reasonable doubt.

However, when a defendant decides to make an affirmative defense the protections afforded to the innocent go out the window - as does reasonable doubt. A normal defense case is simple: the accused didn't do it, and hopefully has an alibi or some other argument to make to protect himself. He only has to defeat the prosecution's case, and holds no burden of proof - only the (lesser) burden of rejoinder, roughly meaning that the accused has to respond or the prosecution will probably win by default, but not necessarily. The accused in a normal case doesn't have to prove that anything is true, only that the proseuction's version MIGHT be untrue. This is a very low burden, because the prosecution has to prove that their case is almost certainly true, while the defense just has to raise enough doubt to get close to 'maybe' territory.

Moving to an affirmative defense changes this burden. The accused claims that criminal punishment is unwarranted, even if it is proven that the accused committed the crime. The defense presents an affirmative case, providing evidence or experts that prove punishment is inappropriate. Instead of presenting their case under a standard of beyond reasonable doubt, the defense has to present one with a lower standard, either clear and convincing or preponderance of the evidence.

In traditional cases, the accused theoretically states that, though punishment for the crime is just and good, the accused is innocent of the crime. In many cases, however, the accused states that he is innocent of the charges, but insinuates in some manner that maybe punishment for such a crime is overblown (for example, maybe the black victim deserved to be murdered, the gay victim deserved to be assaulted, or the topless dancer victim deserved to be raped) without saying it so directly. In some cases, usually in movies and TV shows, the accused admits to committing the crime, but then argues punishment is not warranted. If the accused admits to the crime, then the protection of innocent until proven guilty is eliminated, as is the reasonable doubt standard on the prosecution. If the defense fails to prove that there's a good reason not to punish the accused, then the accused is found guilty and punished.

Lots of affirmative defenses of the last variety fail, since the burden flips from the prosecution to the defense. Stipulating to the commission of the crime is practically a death blow, and only a very well argued justification or insanity plea can bring the defense's case back to life.

Reasons why punishment is undeserved start most popularly with insanity. Since a critical element of crime is knowledge that it was wrong and ability to stop it, an insane person committed no punishable crime (though that doesn't mean the insane person can avoid being locked up in a psych ward for years). Insane legally does not mean insane psychologically. A sane man might be legally insane while a legally sane man might be insane. However, they do tend to overlap a good deal. The simple division is that a legally insane person cannot distinguish between right and wrong.

Personally, I don't put much stock into insanity defenses, beyond somehow proving that a guy is something like a total vegetable or spins around in circles because he lives all the day in another world. Maybe there's a little more credibility than that, but it seems to me that anybody who commits a crime has something wrong in his head - emotional problems, social problems, hormonal problems, chemical problems. Why are we going to excuse the people who had chemical problems beyond their control but punish the people who had social or emotional problems beyond their control? It seems arbitrary in a lot of cases, and overused in the end. Most violent criminals are slightly crazy, from the perspective of knowing right versus wrong. Anyway, it's only tried in one out of every fifty or a hundred cases, of which four out of five fail. For more on skepticism on the insanity defense, check out Thomas Szasz; for an informative team debate with Szasz and Ronald Kuby look here.

The insanity defense comes from the wider idea of competency: mens rea. Mens rea is a Latin term coming from the phrase Actus non facit reum nisi mens sit rea, where the full phrase translates roughly to 'an act does not make a man guilty unless his mind be also guilty' and mens rea means 'guilty mind.' Mens rea is the difference between intent and accident. If you swerve off a road on a dark night and accidentally kill someone, you lack the mens rea to be prosecuted for murder, and would instead get charged for vehicular manslaughter or negligent homicide, depending on the jurisdiction, or maybe just probation. If you drove your car off the road in order to kill someone (e.g. for fun, for revenge, or for money) then you definitely have the mens rea to be prosecuted for murder, if anyone can prove that.

There are four levels of mens rea, with corresponding degrees of guilt. The lowest is negligence: you didn't mean for the crime to happen and didn't know it could happen, but there is some basic duty you ought to have fulfilled that either allowed or caused the crime to happen. The one beyond that is recklessness: you knew that your actions had an overly high risk of resulting in the crime, but disregarded the risk and acted anyway. Even worse than that is knowledge: you knew that your actions would certainly result in a crime but didn't specifically target the actual victim. The top level is purposefulness: you wanted the crime to happen against that particular victim. None of these four levels requires malice, only intent. You could, in theory have purposeful mens rea but either no malicious intent or have even benevolent intent (like killing someone for his own good). In this way, a legally insane defendant could have mens rea, but no malice and insufficient appreciation that the criminal act was wrong or bad (of course, the issue is much more complex than this).

Although the insanity defense relies on the concept of mens rea, they exist separately. Even if the insanity defense were stricken from the law, mens rea would still exist. The biggest legal difference is that the insanity defense requires psychologists on each side to determine who's crazy and then the jury decides which is true, whereas simple mens rea determinations can be made by the jury without expert testimony. The biggest practical difference is that mitigating factors in a mens rea determination can lead to reduced sentence - from murder one to manslaughter one, to negligent homicide, for example. An insanity determination, if found appropriate by the jury, vacates criminal punishment almost entirely and replaces it with civil commitment (going to the psych ward of a hospital for many years).

Separate from the issue of insanity is justification defense. This means that the defendant committed the act (which is called actus rea, guilty act) and had the mens rea or intent of the act, but it was not wrong and not illegal because he had a good reason to do it. One of the most famous is self-defense; if you had not committed the crime, it would have put yourself in grave danger. Other justifications include defense of others, defense of property and necessity. These are pretty self explanatory arguments. People also argue consent as an affirmative justification, if a crime was committed but the victim consented to it beforehand (assuming the victim had the right and the ability to consent - statutory rape cannot be defeated with a consent justification).

One of the more controversial justification arguments is resisting unlawful arrest. Crimes can theoretically be justified if done in the defense of the self from an unlawful arrest. A dramatic example of this is from Ruby Ridge. There were a number of inappropriate police actions from that siege (possibility of a cover-up, executing an unarmed woman holding a baby, taunting the husband with her death, etc.) performed to serve a warrant on a minor weapons charge (selling sawed-off shotguns that were slightly too sawed-off). One the US agents involved in the siege was shot and killed by Randy Weaver. Weaver was found not guilty by a jury by way of resisting an unlawful arrest, and the deadly force was allowed since the police had fired the first lethal shots. There are of course other examples, but the point is that you can avoid punishment for a crime even if it's the police you're defending yourself from.

The real point of mens rea and justification/insanity please is that we punish people who committed crimes but could have avoided it.

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