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Default Mens Rea, Continued

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Professor Gideon Yaffe of Yale Law School has posted a thoughtful comment to my post of last Thursday on the Mens Rea Reform Act of 2017, S. 1902.  I thank him for his comment and continue the discussion here.

Prof. Yaffe's first disagreement is that the term "willful" as used in federal criminal law is broader than I believe it is, and therefore setting willfulness as the default mens rea (which the bill does) would not be as harmful as I think.  He says that term does not require intent but rather that knowledge of the nature, probable result, etc. along with knowledge of the illegality is sufficient, citing Cheek v. United States (1991).

I see a couple of problems with relying on the case law definition of "willful."  First, as the Court has noted many times, "The word 'willfully' is sometimes said to be 'a word of many meanings whose construction is often dependent on the context in which it appears.' "  Bryan v. United States (1998).  Second, and more importantly, the bill contains its own definition:

"(4) the term 'willfully', as related to an element of an offense, means--

"(A) that the person acted with knowledge that the person's conduct was unlawful; and

"(B) if the element involves the nature, attendant circumstances, object, or result of the conduct of a person, that--

"(i) the person had knowledge of the nature, attendant circumstances, object, or result of his or her conduct; and

"(ii) it was the conscious object of the person to engage in conduct--

"(I) of that nature;

"(II) with that attendant circumstance;

"(III) with that object; or

"(IV) to cause such a result.

For crimes with an element of a result, a conscious object to cause that result is precisely the Model Penal Code definition of "purposely," the most restrictive form of mens rea requirement.  See MPC § 2.02(2)(a)(i).  The MPC defines "knowingly" for such an offense as being "aware or practically certain that his conduct will cause such a result."  See § 2.02(b)(ii).  The bill clearly excludes MPC "knowingly" as sufficient for this class of offenses. 

Default Mens Rea Requirements

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Bill notes the introduction of the Mens Rea Reform Act of 2017, S. 1902, by Senators Hatch, Lee, Cruz, Perdue, and Paul.  I agree with Bill and the Senators that congressional attention to mens rea is order.  I also agree that strict liability or a mental state of mere negligence should not be read into any criminal statute.  If Congress wants to create such a crime it must say so expressly.

Regrettably, though, this bill goes too far.  The American Law Institute's Model Penal Code gets it right in § 2.02(3).  The comment to that subdivision says:

Subsection (3) provides that unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established that if a purpose acted purposely, knowingly or recklessly with respect thereto.  This accepts as the basic norm what usually is regarded as the common law position.  More importantly, it represents the most convenient norm for drafting purposes.  When purpose or knowledge is required, it is conventional to be explicit.  And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly provided.

In the arguments made for this bill and its predecessor, I have yet to see a reason stated for omitting knowingly and recklessly from the default mental state.  My post last year on the predecessor bill is here.  If there is a good argument, let's hear it.

This is critically important.  I would support this bill if amended to follow the MPC provision.  I strongly oppose it in its present form.
Terry Spencer reports for Associated Press:

HOLLYWOOD, Fla. (AP) -- Nine elderly patients died after being kept inside a nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital.

From the perspective of Florida Gov. Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills, criminal charges are warranted. But under Florida law, a prosecution might be difficult. Two of three ex-state prosecutors contacted by The Associated Press had doubts as to whether Dr. Jack Michel, the home's owner, or any of his employees will be charged.

All agreed that any criminal prosecutions will hinge on whether the nursing home staff made honest mistakes or were "culpably negligent." Florida defines that as "consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury."

Hollywood police and the state attorney's office are investigating.

Yesterday the Washington Supreme Court decided In the Matter of the Detention of Troy Belcher, No. 93900-4:

In 2011, at the age of 26, Troy Belcher was civilly committed as a sexually violent predator. In 2015, the superior court ordered that he continue to be indefinitely committed. It based its decision on two sexually violent crimes he perpetrated as a juvenile, a diagnosis of antisocial personality disorder with high levels of psychopathy, and a finding that he was more likely than not to recommit if released.

Further Issues with Brain Imaging

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Day after day it seems we are told that neurosciences will dramatically change in how we conceptualize human behavior and ultimately culpability.  As I have noted extensively in the past, there are many problems with this view.  The newest difficulty was published last year in the Proceedings of the National Academy of Sciences:

Functional MRI (fMRI) is 25 years old, yet surprisingly its most common statistical methods have not been validated using real data. Here, we used resting-state fMRI data from 499 healthy controls to conduct 3 million task group analyses. Using this null data with different experimental designs, we estimate the incidence of significant results. In theory, we should find 5% false positives (for a significance threshold of 5%), but instead we found that the most common software packages for fMRI analysis (SPM, FSL, AFNI) can result in false-positive rates of up to 70%. These results question the validity of a number of fMRI studies and may have a large impact on the interpretation of weakly significant neuroimaging results.

Whoops.
My friend John Malcolm of the Heritage Foundation has this article at the Daily Signal criticizing the Back the Blue Act of 2017, which would make it a federal offense to kill, attempt to kill, or conspire to kill a federal judge, federal law enforcement officer, or "federally funded public safety officer."  The latter is a public safety officer of a state or local government agency that receives federal funds.  Putting aside the federalism question for the moment, John's criticism is that the bill does not contain an express mental state (mens rea) requirement for the "kill" prong.

Because the bill does not require that a defendant intend to kill or even know his "victim" was a "federally funded public safety officer," its severe penalties would apply if someone accidentally crashed into an officer with a bicycle, motorcycle, or car, or unknowingly served him contaminated food, and the officer died.

It would be better drafting to specify the required mental state in the text, but I do not agree with John that the omission transforms the offense into one of strict liability (with no mental state required) or even one where negligence will do.

Mental Health in the Big Apple

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Mental disorders and their treatment (or non-treatment) are related to issues of crime and incarceration, so C&C readers might be interested in this article by Stephen Eide in the City Journal.

Since the 1960s, America has faced an epidemic of serious mental illness that represents a shameful chapter in social policymaking. Hundreds of billions spent on "mental health" programs have left many untreated, fated to eke out a pitiful existence on the institutional circuit of jails, homeless shelters, and psychiatric hospitals. We often take for granted that modern times are gentler than the dark days of the thumbscrew, lynchings, and public executions. Yet we have allowed scores of tormented men and women to suffer and die on city streets every year.
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New York mayor Bill de Blasio has made improving New Yorkers' mental health a priority of his administration, but his ThriveNYC program repeats too many of the mistakes of the past and will deliver too little assistance to those in greatest need. Promising a "comprehensive solution to a pervasive problem," ThriveNYC relies on an overly expansive definition of mental health and lacks focus. While de Blasio claims that public confusion about the nature of mental health makes matters worse, his plan will increase that confusion by blurring the lines between mental illness in its serious and mild forms, making too much out of "stigma," and emphasizing prevention over treatment. De Blasio has committed more than $800 million to ThriveNYC, but these resources are spread too thin, across too many priorities. A better approach would focus more on helping the seriously mentally ill and less on ideological and political concerns.

Jail Inmates and Mental Illness

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Michael Balsamo of AP has this article on the chronic problem of mental illness and jail inmates, focusing on LA County and methamphetamine abuse.

The Association for Los Angeles Deputy Sheriffs has this post acknowledging the problem but reminding the public where most of the blame for the situation belongs.

The state legislature is responsible in large part for the rise of inmates with mental health issues.  It is the state, not local law enforcement, which made the decision to close mental institutions, refuse to allow involuntary mental health treatment, and then dump on the streets those who could/should have been treated. Instead, we simply wait for them to victimize other people, incarcerate them for those crimes, and then blame jail deputies guarding them for not being orderlies or psychiatrists.
The post goes on to note that ill-conceived legislation and initiatives shifting corrections burdens from the state prisons to the county jails have also aggravated the problem.
You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.
It will come as no surprise to readers that I continue to have doubts about the "ethical standards" of the legal profession, and particularly criminal defense.  I've discussed this at length before.  For present purposes, it can be summarized by saying that resolute honesty is not what you can expect, and not what you're going to get, when professional "ethics" always put the client first and everything else  -- like truthfulness  --  somewhere toward the back of the lawyering bus.

An entry on Sentencing Law and Policy today served as a reminder.  The gist of it is that one of the most vile criminals in decades, Dylann Roof, appeared to be more honest about how to present his case than his lawyers.
Today, the U.S. Supreme Court, 5-3, took a step toward forcing states to consider a broader group of people to be intellectually disabled (formerly called mentally retarded) and thus exempt from capital punishment regardless of how many or how heinous their crimes and regardless of how little they are over the fuzzy and shifting line between qualifying for the diagnosis and being just a little brighter.  CJLF wrote an amicus brief in this case supporting Texas.

It was no surprise in the case of Moore v. Texas that the high court would disapprove of the Texas Court of Criminal Appeals' home-brewed list of seven factors, the Briseno factors.  The court was unanimous on that point.  I was pleased to see that they did not endorse the myth that the factors are based on Steinbeck's Lennie.  Maybe footnote 3 of our brief had an effect.

The more critical question was whether private organizations with pro-defendant agendas (including the American Psychiatric Association and the Association on Intellectual and Developmental Disabilities) have the power to amend the Eighth Amendment so that states must follow their latest pronouncements, rather than their previous pronouncements, in deciding who qualifies for the no-matter-what exemption.  On this essential point the Court hands us a bowl of mush, and Chief Justice Roberts, in dissent, properly takes the majority to task for it.

A second problem with the Court's approach is the lack of guidance it offers to States seeking to enforce the holding of Atkins. Recognizing that we have, in the very recent past, held that "'the views of medical experts' do not 'dictate' a court's intellectual-disability determination," the Court assures us that it is not requiring adherence "to everything stated in the latest medical guide," ante, at 9- 10 (quoting Hall, 572 U. S., at ___ (slip op., at 19)); States have "some flexibility" but cannot "disregard" medical standards. Ante, at 10, 17. Neither the Court's articulation of this standard nor its application sheds any light on what it means.
The whole reason for having a Supreme Court in the first place is to establish a clear rule of law for all the other courts of the nation to follow.  The high court's precedents may not be right in the abstract, but they are "right" by operational definition.  "We are not final because we are infallible, but we are infallible because we are final," as Justice Jackson famously said. 

What should a state supreme court do now if the DSM-IV definition of "retardation" is written into its statute, but the defendant claims the DSM-5 definition is now required as a matter of federal constitutional law under Moore?  A court applying a statutory definition cannot simply "consider" the DSM-5.  A statute must be obeyed unless it is unconstitutional.  Is a statute codifying the DSM-IV standard, constitutional when it was enacted, now unconstitutional because a bunch of politicized psychiatrists, motivated to minimize the number of death sentences, pronounces the definition to have changed? 

Today, the Supreme Court said, "Maybe, maybe not.  You have to guess."  That is not why we have a Supreme Court.  This is an institutional failure.
The obvious chief criticism that can be made against current Eight Amendment jurisprudence is the ambiguous nature of the "evolving standards of decency" established in Trop v. Dulles.  Besides the fact that it is not self-evident and that reasonable people can disagree widely as to what those standards are or ought to be, it remains a puzzle why some classes of offenders are categorically barred from certain punishment while others must prove their lack of culpability during sentencing.  To be sure, the Supreme Court has provided some guidance on the matter, but as I have discussed before the doctrine remains confused and unintelligible. 

The next chapter of the evolving standards journey is a proposed bill in Indiana, which would bar capital punishment for any offender who has a severe mental illness.  The proposed bill essentially requires a finding of insanity albeit with an added provision that a designated serious mental illness that impairs a defendant's ability to exercise rational judgment in relation to his conduct also qualifies for exemption from the death penalty.  The enumerated serious mental disorders, which the statute defers defining to the American Psychiatric Association, includes schizophrenia, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.     

To anyone paying attention the problems of the proposed bill are obvious. This is no more than a thinly veiled product's test for punishment that, if successfully enacted, would undoubtedly include vast numbers of defendants and substantial monies for mental health experts (who, by the way, cannot as a profession agree as to what constitutes a serious mental illness).   Moreover, it is unclear that whatever characteristics people with serious mental illnesses have that qualifies them for reduced culpability under this evolving standard should not also apply with equal force to LWOP, lengthy prison sentences  or incarceration whatsoever- a residual but fundamental problem more broadly with the evolving standards doctrine itself. 

At the end of the day the issue revealed by this latest iteration of the evolving standards of decency doctrine is that it is at war with the tenets of Lockett and the notion of individual sentencing.   On the one hand, we have a line of precedent that says juries are the ultimate arbiters of punishment decision making (Ring, Lockett) because they must make both a factual and moral determination regarding what is appropriate punishment for any individual defendant.  On the other hand we have precedent and proposed legislation that suggests that juries are untrustworthy to make those decisions.    The question that begs from modern Eighth Amendment jurisprudence is why do we have juries anyway? 
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

Young Adults as Juveniles

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Should 25 year olds be tried as juveniles? 

That is the title of a recent article in the New Republic that lays out the claim that because brain imaging suggests that some people's brains in their early 20s have not maximized their myelination (e.g., the white matter that insulates the neurons) then should not be punished as adults.  This is just the latest stop on the merry go 'round of using brain images to set public policy.  So let us review the problems with this line of thinking (something I've done for many years now):

1.  No one has a perfect brain.  All of us have brains that have been damaged by what may be called "life."  We don't get enough sleep, we eat poorly, we fall and hit our heads (hopefully infrequently), many of us drink alcohol or we consume excessive amounts of sugar.  And as soon as our brains finalize their myelination, they age.  There is no moral agent out there with an optimal brain.

A Denial of Due Process

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Suppose a criminal defendant is on trial at a time when the law is clear that the state must prove X and Y, and if the defendant negates either he is entitled to acquittal.  He submits what he believes is conclusive evidence negating X, so he does not expend the resources to negate Y.  The jury convicts him anyway, and he appeals on the ground that the verdict is not supported by the evidence.

On appeal, it is decided that the defendant did indeed negate X, but the court changes its interpretation of the law so that Y alone is enough.  Since the defendant did not put on any case against Y, reasonably believing he didn't need to, his conviction is affirmed.

Wouldn't the defense bar, academia, and the press scream bloody murder?  Wouldn't they denounce that as fundamentally unfair?  Of course they would, and they would be right.

Yesterday the Florida Supreme Court did pretty much what I just described, but in the other direction.  It is no less unfair.

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