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Hi-Phi Nation: Criminal MindsSeason 4: Episode 1Barry: If you want to start a career in crime, the best person to call is Mike Chase. Mike: so my name is Mike Chase I'm a criminal defense lawyer and the operator of the Crime of Day Twitter account. So I wrote a book called How to Become a Federal Criminal: an Illustrated Handbook for the Aspiring Offender.?It's a federal crime to make an unreasonable gesture to a passing horse in a national park. And that's all the law says. And so-- does the horse have to find them unreasonable? What kind of gestures does a horse find unreasonable? Barry: You go through some gestures that might be unreasonable towards a horse. Can you describe some of these gestures?Mike: well there's the classic the middle finger. But you want to have a strong middle finger, Barry: Like two middle fingers may be the double crime.Mike: I think that that's clearly gonna be evidence of intent right, and so it makes the prosecutor's case a heck of a lot easier.?Barry: I think it's also a little bit controversial whether the middle finger with the other fingers bent oh sure or like curved down is worseMike: Yeah yeah yeah a tight fist with the middle finger versus a little bit of bend. I know. I mean but that that's where you can add a little bit of personal flare right to each gesture. I go into the moon --Barry: Like a little bit of crack?Mike: No all crack, the whole crack, oh you don't want a little bit of crack a little bit of crack could totally be of you you're gonna get acquitted you're gonna get acquitted. Barry: Not quite offensive enough yeah.Mike: Yeah right crack all the way down to the bottom and you're definitely gonna get arrested.?And I personally like the?bras d'honneur believe it's called. It's where you sort of like slap your hand palm down onto your bicep and you hook your other arm in an l-shape upwards and it sort of tells everybody up yours. Like hey, up yours!Barry: That's right yeah. there's also these like ethnic ones too? -- like if the horse might be Italian or something. Mike: The chin flick the chin flick what's the.?It's you sort of like take the back of your fingers with your hand and you fold it under your chin and you just kind of aggressively move it outward from underneath your chin.Barry: Unfortunately, the kind of crimes Mike Chase wants to teach you about aren’t the ones that’ll pay off. If anything, they might actually cost you. But if you wanted a career breaking as many criminal laws as possible without hurting anyone, you should definitely get his book. Mike: if you sell pork from a pig carcass that has a pronounced sexual odor that's a crime. But?if it's less than pronounced it's okay. you just you just you can sell it for certain purposes- it can be comminuted, you know chopped up, it can be put into certain kinds of pork products. And so yeah it leaves some question-- when is a sexual order pronounced and when is it less than pronounced. What is a sexual odor? And it's not defined in the regulation. Barry: There are a lot of margarine-based crimes?Mike: Margarine is a great example because it shows how we ended up with a lot of the statutory federal crimes. Which is that they're the product of lobbying efforts. And so butter was king, and then margarine was the new kid on the block. The Dairy lobby was furious and so they went to Congress and they said we need to ban it. If you are a restaurateur and you're serving individual pats of margarine, they have to be triangular in shape. And you say that's silly and inane. But there's a guy Joseph Troaski here in Hartford Connecticut he got charged for it twice and got hauled out of his restaurant for serving square pats of margarine.Barry: Besides all the food-based crimes, there are also postal service crimes. Apparently it's really serious to dress in a postal uniform when you’re not a postal worker. And there are a surprisingly large number of crimes having to do with the sanctity of our national parks. Where is clogging the toilet a federal crime?Mike: National forests. Yeah any national forest. There are I guess federal toilets right on national forest land. And it's a federal crime to put any substance in a toilet that could interfere with its use. Clog it.Barry: The term is “substance.”Mike: Yeah substance. And it wasn't always substance, there was a time when they said rags cans, objects, things like that. the purpose there clearly was are you putting an object in with the intent to clog a toilet right. That's what we would think would make sense. But there have been revisions to the rule, and in fact additions to the rule, that now make it clear that any substance put in a toilet to interfere with its use,?(5:00)?without regard for intent, that becomes a federal crime. And so it's pretty vague. Even an accidental toilet clogging is totally permissible as a federal crime.(flushing sound, clogging toilet sound.)Chau: From Slate, this is Hi-Phi Nation, Philosophy in story form. This season, crime and punishment. Recording from Vassar College, here’s your host, Barry Lam. Barry: Welcome to Hi-Phi Nation Season 4. Lots of things are happening this season, so let me tell you about all of them up front. Each episode of this series looks at a certain stage of the criminal justice system, takes a practice that happens in that stage and dismantles its underlying assumptions, questioning them, see if they contribute to justice or injustice. Today its about the first stage, legislation, when a bunch of people we elect get together and try to formulate what’s a crime and who goes to jail. This season we’re going to be looking at every stage, policing, prosecution, sentencing, what it’s like in prisons and what happens to you when you get out. There’s going to be an exclusive bonus episode following every episode this season with long-form discussion of the issues in each episode, featuring me and a special guest. For the first four episodes, it will be me and Sarah Lustbader, public defender and writer at The Appeal. Sarah: If like me you leave law school and become a public defender, it all kind of breaks down. Barry: The first bonus episode will be free, but all subsequent bonus episodes will be available with a Slate Plus membership. I’m also doing invite-only Zoom events after every episode this season, where I and a special guest get to meet you. To find out how to be invited, go to . Let’s get back to the episode. Barry: Mike Chase has been trying to organize and catalogue the Federal criminal code for six years now. It’s something no lawmaker, nonprofit, or government agency has been able to do, and if I can be frank, Mike probably won’t succeed in doing this in his lifetime. It's like taking a census of the New York roach population. There’s a list of crimes that arise the way we would expect, some one or group lobbies the federal government to say that such and such should be a crime. Congress passes a law, it gets signed, and it’s a statutory criminal law. But then there are the criminal laws that arise from regulatory agencies. The FDA wants to protect us from sexually smelly pork, so they notify pork producers of the new rule. At the same time, Congress will pass this other law that says that regulations coming out of the FDA, or the Department of the Interior, or the US Postal service shall also be criminal laws. As a result then, you get hundreds of thousands of regulations that are automatically criminalized, subjecting its violators to arrest, prosecution, or jail time. It's part of a distinctive American phenomenon called governing through crime.Ben: Governing through crime is a phrase from Jonathan Simon, a criminologist law professor at Berkeley. Barry: This is Benjamin Levin, Law Professor at the University of Colorado Boulder.Ben: And the idea of governing through crime is that the way the government responds, the way legislators respond to each new social problem, each time we have kind of a terrible thing that happens in the world and someone says we need to do something about this. The?way of doing something about this is passing a new criminal statute.Barry: According to Ben Levin, governing through crime is not a left right issue, not a democrat-republican issue, its more a governing by stick versus by carrot issue. Every political party, every ideological orientation, seems to have a preferred set of bad guys they want governed by sticks. The schools are pretty bad, too many behavior problems, how about a few more cops, random locker searches and juvenile arrests.?There have been a rash of hoodlums causing horses to buck their riders off-- let’s give park rangers the authority to arrest and charge them. One particularly powerful tool in governing through crime is to formulate a law that makes it a crime to do something, rather than purposefully do something. That’s an important difference. One makes the act illegal in all situations, the other only makes illegal the act done with a certain motive. Most of these federal crimes say nothing about motive. They don’t say anything about knowledge either. You can’t plead ignorance for instance, if you decide to flush your stash of Vicodin down a national forest toilet and clog it up, leading to your arrest. The toilet-clogging law is a no-intent, no knowledge required criminal law, which means that accidents are no excuse, and ignorance is no excuse. Mike: For the most part many of these have zero mens rea requirement.Barry: and what does that mean specifically?Mike: The government does not have to prove that you acted with any ill-will or criminally culpable mindset. They just have to prove that the act was done and that you're the one that did it. That's it. Even if it was an accident. And that's why that's a problem -is if there's no mens rea requirement, accidents are chargeable.Barry: The technical legal term, a mens rea requirement, is a fancy latin term for something deeply important to morality and crime. You might think that morality is about doing bad things, and crime about the things that are so bad we want to government to stop and punish them. But it's not. There’s this thing we used to talk about in graduate school that, like everything else in philosophy, is either deeply insightful or completely obvious. Its about how no one ever really dies because they get sick, they only die because they get sick and then don’t get better. And if you think about it, no one ever really dies because they get old either, they die because they get old and then don’t get younger again. Criminal and moral responsibility has this exact same flavor. You don’t get punished for doing a bad thing, you get punished for doing a bad thing and not having an excuse. That assumption is always in the background when we think of holding someone responsible for wrongdoing. And according to the theory of responsibility that seems to be codified in law, what it means to have an excuse completely depends on your state of mind in doing the crime. If you give a thirsty child some tap water, and she dies from arsenic poisoning, that’s a bad thing. But whether you’re responsible for the death?or how responsible you are, completely depends on your mental state, not the act itself. Did you know there was arsenic in the water? Did you put it there specifically to kill the child, or did you think it was a vitamin? Or maybe you knew it was arsenic, but didn’t know it was poisonous. Was there a warning about arsenic in the tap water that you ignored? Or maybe you didn’t ignore it, you just didn’t think it was a realistic risk.?Which one of these deserves to be a crime, and which ones are just unfortunate accidents that the person has to live with, but doesn’t have to be punished for? That’s what a men rea requirement is supposed to be. It encodes the responsibility side of morality, telling us that responsibility is a matter of having a certain mindset at the time you did the bad act. Gideon: I'm Gideon Yaffe, I'm a professor of law, philosophy and psychology at Yale University. Barry: Right. what are some of the mens rea requirements? if you can give me some examples. Gideon: So one thing to note is that by default every crime has mens rea requirements. and with some exceptions every crime has multiple mens rea requirements. Consider burglary.?so burglary is entering somebody else's residence, often at night, with the intent to commit a felony inside. So in order to make out the case against the defendant, the prosecution would have to show that he actually entered somebody's home, that's just a fact about how his body moved. But then they would also need to show that he knew that it was somebody else's home. So that's a knowledge requirement.Barry: So if somebody was like mistaken what that you know, drunken, thought oh this is my house I'm breaking in because I forgot my keys that would be an excuse.Gideon: Yes so it would be it would show that they didn't have the mental state that was required for the crime which includes knowledge that you're breaking in.?Barry: Factual knowledge is a requirement for a criminal mind. No knowledge, no responsibility.Gideon: Knowledge isn't the only fact about your mind that would need to be shown for burglary. You also have to show that the person intended to commit a felony inside.Barry: Intent is a requirement for some crimes, but intent also requires knowledge. What if the intent in breaking in?was to do drugs inside? And doing those drugs happens to be a felony in that state? But you didn't know that? This would be legal ignorance. And the question is whether legal ignorance gives you an excuse in this context. For every crime, what you need to know in order to be culpable is as complex as the crime. And that's just knowledge and intent.?There are two even weaker mens rea requirements that figure just as prominently in criminal law, which is itself supposed to be a reflection of moral common sense. Gideon: So recklessness is awareness of risk—Ben: That a certain result will occur as a result of his actions. So the action represents a gross deviation from what the reasonable person would do. Barry:? An example of recklessness would be if the city warned you that there might be arsenic in the water so don’t drink it, but you disregarded the risk and gave the water to the child anyway. You didn’t know it would kill her, didn’t intend it, but you took an unreasonable chance. Gideon: And then there's also negligence. So cases of negligence are ones where people are completely oblivious to some fact, but if they've been thinking straight, if they've been thinking reasonably, if they'd been caring enough about other people, they would have noticed. So for instance in lots of jurisdictions in the United States rape has a mens rea of negligence. So that if one person has sex with another and they think that person is consenting but a reasonable person in their shoes would have known that in fact the person was not consenting, then that would be an instance of negligence. So negligence, recklessness, knowledge, intent, those are the four main categories of mens rea.?Barry: what is it that's important to us about having these different kinds of requirements? We can imagine a legal system with only one requirement, why do we have so many?Gideon: So I think it's a fantastic question and it's actually incredibly elusive to know what the right answer to it is. Notice you could ask the same question about ordinary morality. So for instance-- you walk outside one morning and your car's missing. Then you find out later that your neighbor had it and you say you know dude what were you doing, and he says oh well I thought you probably didn't mind. Depending on your relationship with your neighbor that might or might not work right. If you have a certain kind of close relationship with your neighbor you might feel like well okay but you know maybe next time you could like check right. But if you don't even have that kind of relationship with your neighbor, if this just like your neighbor who once, five years ago, you lent your car to him, you might say that's just not good enough. What do you mean you thought I wouldn't mind? So your neighbor in that situation, the way you put in legal terminology is your neighbors saying I was reckless. I didn't know that you weren't consenting. I thought there was a chance you'd consent, I thought there was a chance you wouldn't consent. I just kind of went ahead not knowing one way or another right. Ordinary morality tells us that whether or not that's a good excuse depends on this subtlety of relationship between the two people involved. It's and it's really hard to explain like in a principled and rigorous way what facts about that relationship make one kind of plea an excuse or that same kind of plea wouldn't be an excuse with a more distant relationship. You have the same kind of thing with mens rea requirements, which is or what we're really talking about are the relations among citizens and what we expect from each other and what we owe to each other. Without a systematic accounting of those different relations and how those work among citizens, it's very hard to specify with any kind of precision why one kind of mens rea requirement would be appropriate in one context and not in another. So why a negligence standard for non consent in rape? this has everything to do with sexual morality, with the way in which arousal affects psychology, with the magnitude of the harm involved in it. And that's just one crime right. Like what is it for credit card fraud, what is it for criminal trespass, what is it for burglary, what is it for murder.Barry: When it comes to the criminal mind, the job of a legislature is the same as the job of an ordinary person. You’re trying to formulate what mindset you think deserves a criminal sanction. The legal system and common sense treats the four mens rea mental states as making up a kind of hierarchy of evil. Negligence is the least evil mindset worthy of blame for some crimes. Its when you fail to know something society expects you to know. Recklessness is second, knowledge without intent is third. And finally intent, or the purposeful infliction of harm is the most evil. Set mens rea high, and every bad mindset below is an excuse, set it low, and every mindset above is worthy of punishment. Crimes without mens rea requirements bypass the hierarchy entirely. It allows for crimes without any criminal mind. If that’s a problem, its important to know why human beings care so much about mindset for moral responsibility. Why do they care so much about intent, or the difference between intent and knowledge, knowledge and recklessness, recklessness and negligence? Gideon Yaffe has a theory. Gideon: Often very subtle psychological differences, differences that are super hard to measure in the lab conditions, are make huge differences intuitively to responsibility.?So a very good example of this, I think, is perception of risk versus knowledge. Barry: Indulge me for a second on hypothetical example. Suppose there’s a guy trying to scare his neighbors into turning down the music that’s been blasting all night. He reaches into his safe filled with loaded guns, takes one, goes and waves it in his neighbors face. Horrible, maybe even criminal. Now compare that to a guy who reaches into his safe, but his safe is full of fake Hollywood movie guns, only one gun out of a dozen in the safe works, but he hadn’t loaded it in years. Now this guy goes and waves the gun in his neighbor’s face. Less bad, even if both guys do the exact same things with the exact same intent. Gideon: So this very subtle psychological difference makes a big difference in responsibility. So why? So the person who knows he has a gun and moves forward in a certain instance really just cares a lot less about other people's safety. But?if he thinks there's a chance that he doesn't have a gun, so that he might not in fact be actually risking whatever harms the person others might suffer at the hands of his gun, he's less bad. What's less bad? What's less bad is that he weighs the impact of his conduct on other people more heavily in guiding his conduct when he moves forward only aware of risk then when he moves forward in the state of knowledge. Or similarly, somebody who intends to harm somebody else, as opposed to thinking as he runs a stop sign, gee I might harm somebody else, instead he's running that stop sign aiming to run the guy over, he takes the harm to somebody else as a positive reason in favor of his conduct. Not as a reason to hold back. These facts about how we grant reason giving weight, I would say, to the effects of our conduct on other people, those are what's morally significant I think. And those are what's indicated by these subtle facts about our psychology. So it's that fundamental idea about how we how we work with and transact with the effect of our conduct on other people, what kind of weight we give that in our deliberations about what to do that is the fundamental issue that sits behind the choices of mens rea requirements.?Because that's what we're getting at when we prove that the person intended harm. Barry: So is this is this a accurate way of putting it-- so your view is that what's important to us is the way a person values their own interests compared to the interests of other people? That's really the thing that's underlying all of these mens rea requirements. Gideon: Yeah I think that that's right. That is the fundamental thing. Barry: Mens rea requirements are then policing the attitudes that we have toward other people.?Just like criminal acts are supposed to be so contrary to the interest of other people that we need to prohibit them, mens rea requirements say that certain ways of thinking about other people are so beyond the pale that we need to prohibit them. The flip side is that when you do not have these states of mind, you’re innocent, morally blameless even if the state can prove you did the crime. Its why intending to steal but failing is a crime, but stealing without intending is not. These are the moral dimensions of mens rea requirement. Its how criminalization is supposed to work. There should be no crime without a criminal mind. But there is another dimension to criminal states of mind, a political one. A mens rea requirement tells us what the government needs to prove about a defendant’s state of mind, before they can convict them for a crime. And for some kinds of crimes, the truly criminal mind might be pervasive, but hard to prove. So what do you do? Maybe get rid of mens rea requirements.Chau Tu: Hi-Phi Nation will return after these messages. Todd:??I'm state senator Todd Kaminski. I live in Long Beach New York, and represent parts of Nassau County. Prior to that I was a prosecutor for?ten years, I did a little over six years in the Eastern District US Attorney's Office, mostly doing political corruption, but also other other cases too.Barry: Street crime can be scary, but white collar crime is far more costly. Take it from a prosecutor turned legislator who is trying to pass laws that criminalize more harmful white collar conduct. Consider the example of lead poisoning in water, or cancer-causing carcinogens in the air or soil, or the financial crash that devastated the US economy. Why isn’t anyone in jail for these things? The answer is mens rea. Todd: Yes, so in white collar cases in particular it gets really hard. Because you have to prove bad faith. You have to prove someone knew what they were doing what's wrong and did it anyway. In any other case you know what crime happened, the questions who did it. there's a dead body, there's a kilo of cocaine, there's a weapon. But in a white-collar case it's really hard you know you know the the pivotal moment is and then the money was transferred to the Morgan Stanley account-- ba boom. Yeah it's like alright is that a crime? So you know first you got to prove there's a crime, it's really hard. And then you got to prove what the person was doing was wrong and did it anyway. And they and most of the time in these white collar cases these people have really good expert attorneys who kind of know their way around the courtroom, know their way around accounting documents, have experts come in giving their opinions that what they're doing is ok. Barry: Think about how much easier it is to manufacture reasonable doubt about mens rea for a white collar crime than for a street crime. My client didn’t know about this obscure federal law, and even if he did, look at all the lawyers and experts who themselves disagreed about whether his action was harmful-- how could he possibly have known it was. Now compare that to arguing that you didn’t know stabbing someone might lead to their death. White collar crime has this paradoxical effect on our moral psychology. If nothing too bad results from it, like cheating on your taxes, it doesn’t feel like a crime, so the mind that committed it doesn’t seem to harbor any ill will. On the other hand, the worse the effects of the crime, like plunging an entire country into a severe recession, or poisoning 12,000 children, the easier it is to plead ignorance and therefore blamelessness. I mean who could have foreseen all these bad consequences? It's easier for white collar actions not to feel wrong because of their epistemic remoteness from their harmful consequences. And so how do you fix that problem for a prosecutor if you care about white collar crime? You get rid of mens rea requirements. Gideon Yaffe: A lot of statutes defining criminal conduct were written with tons and tons of either ambiguity about their mens rea requirements or just no specification of the mens rea requirements at all. The law just might say-- it is a crime to cause another person to ingest poison. And it doesn't and then when you have the person who says?(15:00)?-- well you know I just gave my child in a couple of Advil, I had no idea that that many Advil were toxic, question is whether their failure to know that serves as any kind of excuse. and the statute doesn't really say because the statute doesn't say anything about knowledge. And prosecutors like to win, and the fewer things they have to prove, the more likely they are to win. And police like to be able to arrest even without any kind of suspicion about anything about the mental states of the people whom they're tracking. And so both prosecutors and police have an incentive to interpret statutes that are either vague or unspecified on mens rea, to interpret them in a way which goes to their side and against defendants.Barry: A very efficient way to govern through crime is to interpret any criminal statute with an unspecific mens rea requirement as a strict liability crime. A strict liability crime is a crime where the state doesn’t have to prove knowledge, or intent, or recklessness, or negligence. It takes away the power of a defendant to claim that they had an innocent mindset. That way, all of the power gets transferred to the government to use their discretion to deal with you. Maybe they’ll go easy on you, but that’s not because they’re forced to by law. It might sound scary, but it's funny how quickly that goes away when we start looking at the right kind of bad guys. John: My name's John Guidry, I'm a criminal defense attorney here in Orlando, Florida. I've been defending criminal cases since 1993.Barry:?We’ve been talking about federal regulatory crimes, but street crimes are not immune from lax mens rea requirements. Florida has sort of a tasting menu of strict liability crimes. Barry: Statutory rape.John: it's a real strict liability when it comes to having sex with somebody that is underage. so in other words. It is not a defense in Florida that you did not know this girl was 15 or 16 years old and you're 25. That doesn't matter. You should have known. That's what they say.Barry: Possession of child pornography.John: I had a I had a child porn case where they figured out that child porn was being downloaded in this home right. And they come in and they arrest the dad. As it turns out it was the 19 his 19 year old running out and say my dad didn't do this I did this. They said hey this was in your home you must have done it. That guy was going to prison.?Barry: Drug trafficking. John: The legislator decided that we don't want the prosecutors? to have to prove that somebody knew a drug was in their car. We're going to go ahead and say if the drugs were in your car and if they were illegal drugs, we're going to send you to prison or whatever the punishment may be. You could help your buddy move, for example, and you don't know what's in his boxes and they're in your trunk and you're moving his drugs, now you've got a felony and you're going away even though you had no idea what was in those boxes.Barry: And finally, death by dealer.John: We've had a lot of overdose deaths right. I've represented plenty of clients that have dealt drugs and they are literally charged with the murder or attempted murder of the person that they that they gave the drugs to.?Now that's where you're getting the strict liability. The crime says we don't care whether you intended to kill him or not, your drugs killed this guy, and you're getting charged with murder.Barry: Every state can have hundreds or thousands of mens rea ambiguous laws. And as we know from Mike Chase, the federal government can have hundreds of thousands. And so, in the interest of criminal justice reform, Republican legislators have come to the rescue.Gideon Yaffe.Gideon: So what the Republican bill was trying to do--Barry: The Mens Rea Reform Act, 2018.?Gideon: Was to impose a default mens rea requirement. To make it the case that a default rule was just in place in federal law. So that if the statute didn't say then on the Republican bill prosecutors would have to prove knowledge. Barry: Under the standard, both factual and legal ignorance could be excuses for violating federal criminal laws that did not have explicit mens rea requirements.?Mike Chase.Mike:?the notion that ignorance of the law was no excuse made sense back at the founding of the country. When you could actually open a book and read everything that's a crime and conform your conduct to it, fine. When there are potentially a half-a-million federal crimes on the books- yeah ignorance of the law should definitely be an excuse.Barry: Ben Levin.Ben: There's support for the mens rea reform, generally speaking, from conservatives, from libertarians, and folks on the political right, because a lot of these federal criminal laws are viewed as an extension maybe of government run amok. This is big government in its in its scariest form right. And these expansive criminal statutes are seen as a as a component of over-regulation.?(20:00)?From a liberal perspective, from a progressive perspective, or left perspective, there's support for mens rea reform in large part because of concerns about mass incarceration, because of concerns about over criminalization. Too many people are being punished. We know that there tremendous disparities based on race, based on class, and giving prosecutors too much power seems to be enhancing those dynamics, those disparities.?Barry: How did it become a partisan argument then?Gideon: It became a partisan argument because Democrats interpreted Republicans as being interested in this solely out of an interest in protecting corporations. Because many of the strict liability crimes that were prosecuted were ones that can only be committed by corporations. Things like environmental harming.?Ben: This is really a way of shielding people who commit white-collar crime, who commit financial crime or economic crime from any kind of accountability, accountability through the legal system.Todd I'm very careful about putting more restraints on our prosecutors.Barry: State Senator Todd Kaminsky.Todd: My argument is that we're not arresting young people from from disadvantaged neighborhoods, we've just been arresting our way out of issues. We've been stocking our jails full of people and the answer to society's problems, most of whom are poor. I agree with that. But, if you limit this to white collar cases, you'd be arresting white collar criminals. I want to make it easier to prosecute white collar cases. It would mean making it easier to get at a lot of the white collar theft out there. They are not held in on crimes, they're not high sentences.Barry: Do you think that white collar criminals just have good attorneys and the laws are formulated in their favor?Todd: Yes. Barry: Okay you think that. Because the Republican and libertarian talking point is that there are a bunch of people who don't know what the laws are because there's too many damn laws, and so like and you can't hold people to knowing some obscure federal regulation about dumping or something like that. Like that's their argument. but your view is that no-- people know that they're doing wrong shit they just have better lawyers to get get away with it .Todd: Yeah, I mean or there's not enough resources for law enforcement getting at that stuff. I mean look, the example you gave, I have a law that would create a crime called criminal disposal. There is no law right now about dumping. Like large construction companies,? take fill from their construction sites that are toxic, go to poor neighborhoods, and dump them in their parks. That's crazy. No one could tell me they don't know what they're doing when they're driving out in the middle of night and dumping stuff somewhere- that's clearly a crime.?I think we need a whole white-collar reform movement in Albany. It has gone nowhere. There's no appetite for having more arrests.?Barry: It seems like the momentum for criminal justice reform on the side of street crime is being used to also make my collar crime harder to prosecute. Would you agree with that ?Todd: Yes and it's totally perverse.Ben: Elizabeth Warren has been a vocal opponent of mens rea reform, President Obama was a vocal opponent of mens rea reform. They're very concerned that mens rea reform is going to make it harder for federal prosecutors to prosecute people committing white-collar crime.Gideon: To me, it's completely unjust to be punishing people in the absence of proof of mens re. Completely unjust to punish people without giving them an opportunity to offer excuses on their behalf. And so any default rule is a step towards justice, because it's going to make it gonna require prosecutors to prove what to me is absolutely essential to the justification of punishment, which is something about responsibility, something about the mental state of the defendant. The bill that the Republicans were proposing, it was step in the right direction because it was a step towards against the kinds of highly manipulative practices that were being engaged in both by prosecutors and police to try to bypass what is to me an absolutely essential element to just punishment.?Barry:?So here we are with a choice. We have a strong feeling of injustice when someone is?charged and convicted of a crime they never intended and never knew they were committing. At the same time, requiring the state to prove either intent or knowledge lets a lot of people off the hook, people who are already rich and powerful and do some of the most wide ranging and serious harms in a society. What to do? When we return, Blackstone’s ratio and mens rea reform. Or, whether it's ever okay to build a law that convicts the innocent in order to ensnare the guilty. And then, just when should ignorance be an excuse, not just in law but everyday morality? What if the answer is always? Chau 2: Hi-Phi Nation will return after these messages. Barry: All right Sarah Lustbader, you’re my cohost for the first four Slate Plus episodes this season so you’ve been listening to these issues, what do you think about the choice between the morality of mens rea and the need to prosecute white collar crime. Sarah: This is where theory and practice diverge. So in theory of course I think it's abhorrent to criminally try and convict anyone who didn't intend to do anything wrong I think that it's it's pretty hard to argue otherwise. On the other hand, progressives like senator Elizabeth Warren have opposed mens rea reform and I think it's a false choice. I think that the idea of mens rea reform across the board is a false choice that the bill that i think she was referring to was basically tailored to make it easier for people to commit corporate crimes. It made it was harder for the government to prosecute specifically corporate crimes and we know that that if you want to talk about the intent of the Republicans who are trying to push that, they I believe we're actually trying to block criminal sentencing reform, so like it sentencing reform for like street crime that affects people of color more unless Congress would agree to a mens rea amendment. So actually they saw those two things as in conflict with one another. So I think in practice what what we see is that it's a false choice to say oh you have to do across-the-board mens rea reform you know we should if you want to make it harder to put people in prison at all if you want to roll back mass incarceration you actually have to be kinder to corporate defendants. I don't think that's true there's no reason that you can't go through laws and say I choose these laws to be to be tougher on. I think when it comes to corporate crimes it's just different, these crimes I believe are more deterrable, so like literally in corporations people ask their attorneys what can I get away with and the attorneys will say this law is never enforced go for it you know or they'll say you know if we do it this way actually it'll be harder to prove intent you know people who are arrested for street crime generally don't have the like their lawyer friend “how can I show the least evidence of intent so it will help me evade prosecution?” Barry:?There’s more longform discussion with me and Sarah Lustbader in the Slate+ bonus segment this week. But she makes a good point. The whole purpose of governing through crime is that you’re trying to calibrate your criminal laws to fit the outcomes you prefer, the outcomes you think are just. There’s this famous maxim?attributed to Sir William Blackstone, famous English jurist of the 19th?century. You’ve definitely heard of it; better to let ten guilty go free than convict one innocent person. There’s also this other maxim no one ever talks about. I call it the Converse Blackstone maxim, but don’t look that it up, I just made up the name; it says better to convict one innocent person than let 11 guilty ones go free. The Blackstone maxim says don’t make the standards of proof too low, the Converse Blackstone maxim says don’t make them too high. Better to put some blameless person behind bars in order to get many truly culpable people who are just faking an excuse. People take the Blackstone ratios to justify a kind of universal burden of proof in criminal law, proof beyond a reasonable doubt for all crimes, no exceptions. But what if it does the opposite? What if it gets us in the habit of seeing criminal procedure as a numbers game, where justice is a matter of the right ratio of guilty to innocent people behind bars. The government seems to be using strict liability crimes as an end run around constitutionally protected burdens of proof. When certain crimes just don’t have the right Blackstone ratios, let’s tweak mens rea, see if we can calibrate the right number of people to put in prison. I think the debate shouldn’t be about white collar versus street crime, or progressive versus libertarian social policy, but rather about whether criminal procedure should ever be used as a governing device to get socially desirable Blackstone ratios. That’s how I put the issue to Gideon Yaffe. Barry to Gideon: There's a certain kind of numbers game-- actuarial assessments of these mens rea requirements. Arguments to the effect that-- from the Democratic side something like more white-collar criminals will go free under the bill and some people could respond, well well also other people who are unjustly incarcerated will also go free. Let's just take a look at the numbers. and you generally don't like that way of assessing the mens rea requirements and tell me why that is.Gideon: I think it orients the wrong way towards their moral significance. Let me give you an analogy-- say you're trying to decide whether or not to torture somebody. And you make the following argument in favor of it: if I if I torture them I'm gonna stop three other acts of torture . Anybody who makes that kind of calculation doesn't really understand the import of the rule don't torture people. And I think there's something very similar going on with these mens rea requirements, which is what you're really measuring when you say more of these people will go free more of those people will do it. what you're trying to do is measure injustice is relative to one another, and count the injustices. So?we're gonna stop this many injustices by allowing that many injustices. Well that's fine as long as the numbers are the right way. And that fails to recognize the kind of import of these principles, a principle of the form that says, only punish somebody if he's responsible. And saying oh well I'm gonna be able to I can kind of violate this one time-- punish somebody who's not responsible or who I'm not confident is responsible-- why? well because I because when I do that I get a lot of people, I manage to capture a lot of people in my net who are responsible. You might, but it exhibits the wrong kind of attitude towards the principle. And that's the way I think of these mens rea requirements. I think they are they are fundamental in the same way as the rule don't torture people is fundamental. Barry: Yaffe’s fundamental moral law here is that that there is no crime without a criminal mind, and no just criminal law without a just mens rea requirement. To formulate and prosecute a strict liability crime violates the inviolable, the basic moral principles by which we evaluate the justice of laws. Underlying this evaluation is a moral theory.Gideon: A Deontological moral theory.Barry: The kind of moral theory that gives no room for a political dimension to mens rea requirements. Gideon: The?the basic idea of a deontological theory as I understand it is to separate the right from the good in an important way.There can be acts that make the world better, that is, that add to the good but which are in violation of principles?that themselves determine the boundaries of the right and also of the wrong. So don't torture it as an example of this. We can all think of examples-- terrorist attacks, imminent etc, where you can make the world better by torturing somebody. The deontologist would say, yes, but there's this principle don't torture. And that's the principle that determines the boundaries of the right. So you can recognize that sometimes you can make the world better by doing wrong, true, but our job is not to make the world better, our job is to do what's right. Barry: But the criticism of deontology in public policy is that it isn’t about right, it’s about self-righteousness. Why isn’t the task of policy-making consequentialist, which is to look at winners and losers of particular laws and regulations and to balance things out for long term good. What conception of right makes it possible for the right thing to do more long term harm than good?Gideon: Now my feeling is there's a lot to that thought in many areas of public policy. Like who should get to drive, or who should get to be a contractor,?(30:00). Many different ways in which we care about licensing that forward-looking attitudes of these kind make really good sense. You want to adopt the policies which might have the results of some people who would be great contractors not getting the chance to do it but fewer buildings fall down you know, which seems like it's worth it. I feel that way about many different aspects of public policy but just don't feel that way about criminal justice. And I especially don't feel that way about criminal justice where you have a significant punishment at the end of it. Really it comes from a kind of vision about what criminal justice is for. What it is is it's the government trying to behave collectively for us on our behalf in a way which we see as right and not just as good. And?so to me it's something about the very nature of criminal justice and the very nature of criminal punishment that makes it especially important that the government act in accordance with right principle and not just make the world better.Barry: So it's not an engineering tool, it's a moral tool.Gideon: That's exactly right. And that's it it's probably not the only government behavior set of government behaviors that serve this kind of a serve an essential moral function in this way. But it's it's one of them and it's intertwined with practices of holding each other accountable that are kind of essential to many aspects of ordinary human life and what it is to be a human being in contact with living among other human beings.Barry: So which is it-- is criminal justice a public policy tool serving the interest of the greater good, or a moral tool serving only the interest of right and wrong? Consequentialists or utilitarians hate framing things this way, because to them, there’s no difference between the right and the good. Criminal justice policy, when it is underwritten by consequentialism, rises and falls on data, costs benefit analyses, effectiveness measures. Everything and nothing is moralized, including mens rea requirements. But if you’re a deontologist, the data, the cost benefit analysis, governing through crime, can be completely offensive to the very nature of criminal justice. Crime and punishment is not a matter of governance at all, but moral expression and condemnation. Criminal justice is an expression of our personal senses of justice and injustice, moral reactions to objectionable states of mind and the people who have them. Here’s a pretty strong deontological commitment, no strict liability crimes, ever. There is no responsibility without mens rea, ever. And there is no playing politics with criminal justice. What are the repercussions for such an unrelenting moral position? You’ll get to see as our series on crime and punishment continues. ................
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