Mens rea requirements in criminalization

(music) Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas. In this video, we’ll ask whether a person’s state of mind as they act should matter in determining the criminality of their action. There’s a strip of beach on an island near Seattle that’s a beautiful place to picnic. But it happens to be at the base of a private mansion, and there’s a small sign warning any wanderers that they’re trespassing. On a dark summer night, two strangers, completely independently, walked onto the property just a minute apart. One was a tourist who wandered onto the strip while taking a nighttime stroll along the public beach, and decided to sit on a rock to watch the waves. The other was a burglar who was there earlier, and returned under the cover of darkness. The owner had night-vision cameras on the private beach, and called the police, who arrested both strangers for trespassing. Both strangers trespassed on private property. But one of them -- the wandering tourist -- had a very good excuse. It was his first night on the island, and it’s hard to see the sign in the dark. He had no intention of trespassing -- he didn’t even know he was on private property. His trespassing was an innocent mistake. But the wannabe burglar knew exactly what he was doing and did it intentionally. On top of that, the reason he did it was to gather information for a further criminal act. His trespassing was done with mens rea, the Latin term for “guilty mind.” Many offenses are legally punishable only if they are carried out with mens rea. This requirement reflects a powerful moral intuition that was famously articulated as a principle by the 18th century philosopher, Immanuel Kant. According to Kant’s principle, to deserve blame for an action, you must do it with an unethical state of mind. If you violate a moral rule accidentally, unwittingly, or unintentionally, then your action is blameless. What you did was regrettable and unfortunate, but not reckless or malicious. You’re morally innocent. But if you can’t be blamed for your action, it seems you shouldn’t be punished for it either. And according to Kant, blame and punishment is tied to mens rea. If you don’t have a guilty mind, you don’t deserve either. If the law focused solely on giving people what they deserve according to Kant, the wannabe burglar should be punished, but the tourist shouldn’t. However, when it comes to passing criminal laws, things are not so simple. Consider it from the state’s viewpoint. If we were writing an anti-trespassing law, the easy part would be defining trespassing as entering onto private land without the owner’s permission. But what if we wanted to make sure the law only punishes the wannabe burglar -- not the wandering tourist? The best way to do this would be including an additional requirement for criminal trespassing: that the person knows they’re entering onto private land without permission. We might even require that they intend to do something wrong there, like vandalize or commit burglary. But writing these mens rea requirements into the law means prosecutors must provide evidence not only that a person is trespassing, but also that the person knows they’re trespassing -- maybe even that they’re doing it with other bad intentions. Without this extra evidence, prosecutors can’t prove to a jury that the person criminally trespassed. These requirements would probably ensure that the tourist is set free. But it makes it easier for the wannabe burglar to avoid punishment too. He just has to lie, and it's on the government to prove him wrong. To avoid the problem of burglars trespassing and then pleading ignorance, the state might decide not to write mens rea requirements into the trespassing law. This would mean catching someone on the premises without permission would be enough to prove they broke the law. Ignorance or benign intent would never be an excuse. Crimes written in this way are called strict liability crimes. Strict liability helps solve the problem of proving mens rea: now the state doesn’t have to! The wannabe burglar can’t get off by lying. On the other hand, the tourist’s innocent mistake will also count as criminal. Is this trade-off worth it? Many legislators think the question of including mens rea requirements in our criminal laws is about evaluating such trade-offs -- that it’s a matter of asking ourselves which is more important: Easily prosecuting the wannabe burglars of the world? Or ensuring that innocent tourists go free? This means that whether the law requires mens rea would vary from crime to crime, depending on things like what crimes we want prosecutors to be able to prove easily, because of a perception that they’re particularly widespread, for example. In the U.S. today, some crimes -- such as kidnapping and murder -- require mens rea. Many others don’t. These strict liability crimes include traffic violations, possession of illicit materials like drugs or stolen goods, and many white collar crimes. But the Kantian view implies that mens rea requirements aren’t negotiable. They aren’t a tool for engineering public policy. It’s morally wrong to punish someone who doesn’t deserve it, even if it advances some socially good outcome. For the Kantian, prosecuting someone who lacks mens rea is always morally equivalent to scapegoating, or punishing someone as an example to others. This doesn’t mean we can’t use the criminal law and threat of punishment as a tool to solve social problems. But it’s going to be a lot harder to do so legitimately if the state is only allowed to punish people who truly deserve it. What do you think: Should mes rea be a requirement for punishment? (music)