January 16, 2013
"Punishment Without Culpability"The title of this post is the title of this notable new paper on SSRN by Professor John Stinneford, which ought to be of special interest both to those who think of themselves as criminal justice "originalists" and to those eager for reform of strict liability elements of modern criminal law. Here is the abstract:
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
January 16, 2013 at 09:36 AM | Permalink
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Hmmmm...what comes to mind?
Perhaps the state sex offender registries, with nary a judicial edict behind its draconian punishments?
Posted by: Eric Knight | Jan 16, 2013 12:00:45 PM
A conservative think tank in Texas recently put out a report criticizing the lack of mens rea in many state-level environmental crimes, see here.
Posted by: Gritsforbreakfast | Jan 16, 2013 3:58:19 PM
Criminal punishment without either a guilty mind or gross negligence is a very worrisome trend.
Posted by: Bill Otis | Jan 16, 2013 5:21:40 PM
And even "gross negligence" in the past was generally dealt with via the tort system.
Posted by: Gritsforbreakfast | Jan 16, 2013 5:32:09 PM
Vehicular homicide by gross negligence is traditionally, and properly, considered a crime. Indeed, in extreme cases, it is treated as murder, see, e.g., US v. Fleming, 739 F.2d 945 (4th Cir. 1984), available here, http://www.leagle.com/xmlResult.aspx?xmldoc=19841684739F2d945_11490.xml&docbase=CSLWAR1-1950-1985
Posted by: Bill Otis | Jan 16, 2013 5:51:46 PM
The mens rea.
1) Latin. The language spoken only by a church;
2) Plagiarized from the catechism analysis of mortal sin. (paragraphs 1857 to 1861);
3) Determining the mens rea. A supernatural mind reading power attributed to God, never to man, not even by the Medieval Church. The mens rea does not even exist in nature. It cannot be measured, nor even found. It has the validity of counting chain rattlings at a seance.
Each point violates the Establishment Clause.
Posted by: Supremacy Claus | Jan 20, 2013 6:10:55 AM