Actus non facit reum, nisi mens sit rea.

“There can be no guilty act without the guilty mind.”

It is a fundamental principle of Anglo-American justice that you cannot be guilty of a crime unless you intended for it to happen. There are of course multifarious nuances in the analysis of what constitutes intent on the part of an actor. But the basic principle remains. We should only punish people who intend to do wrong.

At common law, every crime was minimally composed of two elements: the Actus Reus (“evil act”) and the Mens Rea (“evil mind”). What makes an act worthy of punishment is not merely the harm it visits on others, but the state of mind of the actor. We punish a person who kills intentionally moreso than a person who kills accidentally because the former is, ceteris paribus, a greater risk to his peers, and less likely to have future conduct influenced by remorse. We fear a murderer who kills in cold blood more than a negligent driver who accidentally hits and kills somebody on account of being distracted by, e.g., texting or lighting a cigarette, because the distracted driver is less likely to kill again, or alternatively, to be unmoved by remorse. So we punish him or her less than the cold-blooded murderer, even though both acts result in the death of a human being. The only difference is the state of mind of the killer.

For those of you unfamiliar, there are generally four levels of Mens Rea:

1. Knowledge/Purpose: this describes a state of mind in which the actor either intends a certain result, or knows with substantial certainty that their actions will lead to a certain result. (example: if I stab somebody in the chest, I can be charged with knowledge with substantial certainty that my act will lead to their death).

2. Recklessness: this describes a state of mind in which the actor doesn’t have purpose to achieve a certain result or knowledge with substantial certainty, but nonetheless knows there is a substantial likelihood that their actions will lead to a certain result, yet they proceed anyway. (example: disciplining a child by breaking a beer bottle over their head instead of spanking them, or driving down a crowded road filled with pedestrians crossing the street).

3. Negligence: this describes a state of mind in which a reasonable person under the circumstances would have taken precautions to prevent a certain result from occurring. (example: failing to recognize that an individual is under-age prior to engaging in sexual intercourse with them).

4. Strict Liability: this describes…no state of mind at all. Strict liability is not so much a fourth category of Mens Rea so much as the absence of the other three forms of Mens Rea. A person can be guilty of a strict liability crime without intending to have committed it.

It is this last category that generally leads to the greatest controversy. Strict liability has expanded in recent years, as legislatures and courts abandon fundamental criminal law principles for administrative convenience. "Tough on crime" policies have encouraged lawmakers and jurists to take the easy way out; and they are supported by a Supreme Court who shares Benjamin Cardozo’s fear of allowing the criminal to go free because the constable blundered.

Many drug crimes are strict liability crimes. State drug provisions are shot through with rebuttable presumptions of ownership. Mere possession is often evidence of intent: unwittingly slipping on a pair of jeans with a vial of heroin that belongs to your friend makes you a felon, whether you did it intentionally or not.

Many drug crimes are in fact strict liability crimes, though not all states treat them as such. Florida, however, has decided not to sweat fundamental principles of criminal law:

Florida will remain one of the only two states in the country that sends people to prison on drug possession charges without first proving the person knew what they were carrying was illegal. In a decision that will assure thousands will remain behind bars on a charge that many defense attorneys and some judges insist is blatantly unconstitutional, a divided Florida Supreme Court on Thursday upheld the state’s drug possession law. “There is no constitutional right to possess contraband,” Justice Charles Canady wrote for the majority. “Nor is there a protected right to be ignorant of the nature of the property in one’s possession.”

Dissenting Justice James E.C. Perry makes the obvious point about “what it would be like if this principle applied to other laws:”

Could the legislature amend its murder statute such that the state could meet its burden of proving murder by proving that a defendant touched another and the victim died as a result?“ he asked, quoting from a federal judge who like several circuit judges in the state struck down the statute as unconstitutional. "Could the state prove felony theft by proving that a defendant was in possession of an item that belonged to another, leaving the defendant to prove he did not take it?

This is yet another casualty of the Drug War. Strict liability crimes existed long before the War on Drugs came into existence, but generally they were viewed with extreme suspicion by judges who were schooled in the fundamental principles of the criminal law. Historically, strict liability crimes were only used where it is extremely difficult or impossible to prove the intent necessary to demonstrate that a particular crime was committed.

At no time in history, however, have so many state judges become comfortable with strict liability crimes on the scale they are implemented today. When a prosecutor doesn’t have to prove intent, it becomes much, much easier to convict people of drug crimes. You can safely bet that this has contributed in no small way to the swelling of America’s prisons with non-violent drug offenders.

Unfortunately, for many state legislators, and judges with a retributive streak, none of this matters. All that matters is getting those dastardly drugs off the streets. All that matters is punishing the addicts, the junkies, or the dealers; small-time or big-time, doesn’t matter. Throw them all behind bars. And if that means we need to cut down fundamental principles of criminal law to get at those evil drugs, so be it.

The following exchange from A Man for All Seasons, via Erik Kain, comes to mind:

William Roper: So, now you give the Devil the benefit of law! Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? William Roper: Yes, I’d cut down every law in England to do that! Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Indeed. One only hopes that one day, we shall return to a state of affairs where we take Thomas Paine’s alarum to heart:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.



