By C J OAKES, July 6, 2016.
I hate politics. I hate Presidential Election years. And I hate that American Justice is failing because too many Prosecutors ignore a basic principle of justice: Intent. In an article for the National Review, FBI Rewrites Federal Law to Let Hillary Off the Hook, this issue is well-illustrated by a very sincere, though politically-motivated Andrew McCarthy.
Sincerity and the Cause of Justice
Many sincere people throughout history have performed heinous acts, claiming the righteous high-road in the process. Hitler was certain he was right as was Stalin and many of the Caesars. Recently, police in Baton Rouge, Louisiana shot a suspect who, by all accounts, was already well subdued–in the name of justice. Last year, riots ensured when city after city chose to ignore justice for wayward law enforcement. And in courts around the country, people are instructed by Judges that if the evidence proves the defendant guilty, that should be the verdict.
Really? What happened to Mens Rea? Clearly, it Only Applies to Powerful Politicians…But it’s a Start.
Mens Rea is a latin term which dates from ancient common-law. It refers to the mental state or attitude of the person who commits an action which is proscribed by law. If the person did not intend to commit a crime when doing whatever it is they did, then there is no crime. Thus, if a person is sleeping one night and someone enters, attacks, and subsequently is killed, the homeowner is not at fault. He went to sleep at night with no intent to kill anyone–the burglar caused the situation by his presence.
A prosecutor who brings charges of murder on the homeowner will likely lose the case. The defense will argue self-defense and win. Both sides know this. But what about the fellow who goes to a movie with his wife and at some point in the evening gets into an altercation with her. In the process she is killed. Was there intent?
Intent Matters in Justice
Intent is a key element in justice. In the scenario above, the man who kills his wife will likely carry the guilt for life. He will likely be haunted by the act. Yet, is he, strictly speaking, guilty of murder?
Likely not. This is why decades ago the laws were altered to provide for Manslaughter charges. This is easier to prove. In fact, in the earlier case with the burglar, manslaughter would likely pass in some cases. But home invasion tends to trump any charges by a zealous prosecutor.
In listening to the Black Lives Matters outcries last year, this was one of the elements that I noticed were completely missing from arguments. No one noted that intent plays a key role in whether a crime was committed or not.
In fact, I noticed that even the Prosecutor’s who had to charge police officers with murder and manslaughter did not bring up the Mens Rea of the case. Instead, they were silent and conducted themselves according to whatever was politically expedient. Why not?
What Could Have Been the Reason Prosecutor’s Nationwide Avoided Mens Rea in Defending Police Killings in Cleveland, Charlotte, NYC, and elsewhere?
I cannot say for certainty, but there can be only a few possiblities.
- Ignorance – Perhaps we have gone so far from the application of Mens Rea that an entire generation of attorney’s have forgotten that the mental state of the perpetrator matters.
- Willful Ignorance – Perhaps, the situation is more akin to the carpenter that covers his mistakes behind trim and paint. Perhaps the prosecutor’s in the nation know that they have been garnering prosecutions wrongfully at the hands of an ignorant public. In short, they do not want to show their hand.
- Fear – Perhaps the reason was that those in charge of the cities wherein police have erroneously killed believe that if they used Mens Rea in order to protect them, the public will not understand. There could have been serious backlash. Maybe. I for one would prefer that this be the explanation.
This simple fact is that during the ‘Get tough on Crime’ era of the 80s and 90s, the public wanted prosecutions. Rather than view the defendant as ‘innocent until proven guilty,’ we somehow turned that around. We did so to the extent that Mens Rea was tosssed.
Mens Rea is Back. Is it? Or is Mens Rea Only Back for the Powerful?
The simple fact is that Mens Rea has always been in place for the powerful. That is why Gerald Ford pardoned Nixon–in the ensuring years we were told that Nixon ‘meant well.’ In other words, there was no Mens Rea in his case–the facts indicate otherwise.
Hillary Clinton is only the latest politician to engage in something which, may or may not actually be criminal. If her intent were criminal, then her actions should be prosecuted. If not, there should be no charges. Intent matters.
This was the point behind the decision by FBI Director James Comey–there was no intent. That said, McCarthy claims that the law does not require intent. Perhaps. But if that is the case, then the law is wrong and must be challenged.
I am no fan of Hillary Clinton, but there can be no escaping the fact that a key element in any crime is the Mens Rea. Without intent, there is no crime, regardless of what the law supposedly supports. Justice cannot be served without intent. So, it seems that her case highlights what has been the standard in America for nearly three decades–intent only matters if you are rich.
Ms Clinton gets a pass because there was no Mens Rea in her case, it would be really nice if that same ancient rule of law applied to the rest of us slobs in the nation.