Saturday, March 7, 2009

The Mens Rea Violates the Establishment Clause

1) Per se. Mind reading is a supernatural power. The supernatural is religion. Half the major violent crimes are committed by folks legally drunk. The criminal himself cannot honestly judge intent, if the crime is recalled at all. I understand no recall is needed to infer intent from conduct. The word, infer, is a synonym for mind reading, and not a rebuttal with objective evidence.

2) Origination. A French monk applied the Scholasticist doctrine that God would know intent and judge it after death. Intent came from the elements of mortal sin and a church catechism. So what? So what if the law were based the Koran? In the 1200's that was an humanitarian advance, a loophole to escape the sole punishment of the 1200's, death.

3) Policy. Where is the evidence the hunter who shoots another thinking him a deer is less dangerous than the hunter who shoots another after a $10,000 payment from the other's wife? (In that scenario, the money is objective evidence of intent.) But there is no evidence mens rea contributes to safety. There should be strict liability, with a judgment of dangerousness by the executive branch based on the past. Future victims should be able to sue the probation department for deviations from assessment standards that result in victim injury. The probation department is just counting past behaviors from all sources, including childhood records, after conviction, and not functioning as God does. Intent has no scientific, validated meaning, such as a measurement scale, or brain imaging showing anything happens in real life. It does not exist. The reason? It is from the thinking of Medieval monks, not more recent scientists.

4) Indoctrination without consent. Modern students do not believe in the supernatural outside of their spiritual adherence. To get them to believe in the mens rea, they undego an indoctrination so good, no one knows it took place. But people who pass 1L believe minds can be read. The indoctrination violates the Establishment Clause. The use of mens rea by any judge does too, since it imposes a supernatural belief of a very specific church, with the force of government.

5) Latin. All Latin violates the Establishment Clause, being the foreign language of a church. We need a statute voiding all legal utterances containing Latin, and canceling any severability in the legal utterance.


David Schwartz said...

So, in your opinion, if a man kills his wife with a hammer, how should we decide whether to put the man or the hammer in jail?

Or if I push you into someone who then falls off a cliff, how should we decide whether I am culpable or you are?

And if a man drives a car and strikes a person who runs out quickly into the road, should we really not care whether he tried to avoid the person or tried to hit them?

The crux of criminal culpability is that people make choices. There is no criminal culpability where both an outcome, and the lack of that outcome, were within the scope of choice of the person we are holding responsible.

Supremacy Claus said...

David: All crime should be strict liability crime. The executive should then look at the past of the person. The sentence would be based on past criminality. I like One-Two-Three-Dead.

If the executive branch maker of sentences allows a very dangerous person to walk away, future victims should be able to sue the sentencing agency for any deviation from professional sentencing standards of care.

Your examples are defense lawyer sophistry that shift the burden of crime to victims. These do not generate you any fee. Therefore they may die, and you care not a whit.

It is bias in favor of lawyer rent seeking. This bias has a racist component because minorities carry a burden of victimization several times greater than whites.

If you are a defense lawyer, you spend a lot of time in physical proximity to very violent people. Failure to physically control these puts your personal safety at risk.

David Schwartz said...

There are really two possibilities. You have no idea what the consequences of what you're saying would be, or you do and don't care. I'm not sure which is worse.

Two people rush to the scene of an accident and find a man trapped in his car. One tries to free the man from the car and inadvertently injures his spinal cord. The other deliberately tries to injure the man's spinal cord and succeeds.

You are seriously arguing these two people should be treated the same?

You miss the whole point of criminal liability. I mean, you 100% utterly fail to understand it *at* *all*. You don't even understand why people can be convicted of crimes and hammers cannot.

Supremacy Claus said...

Your point is rebutted in the careless hunter vs the contract killer hunter scenario above.

How do you know the careless rescuer is not more dangerous than the intentionally injuring rescuer? There is no way without looking at their pasts.

What if you learned, the injury was the twelfth one for this careless rescuer? This guy listens to police radio and rushes to the scene as a thrill seeker, and has messed up twelve prior victims. The intentionally injuring rescuer has never done this before, and was just drunk.

Your boy would go home to mess up twelve more people. Your intentionally injuring rescuer joins AA and has random testing for alcohol ingestion, remaining clean for decades. Is it valid to spend $millions to incapacitate him?

I do not support intentional injury. I do support safety and incapacitation of all dangerous people, intent thrust aside.

Supremacy Claus said...

One difference between us is the focus. You are a rent seeking lawyer making no fees from crime victims. You owe your living to the criminal. You want nothing done to your meal ticket.

I focus on victims, especially the safety of future ones.

One other difference is that you are morally reprehensible. You will go all out to get your client off, as if you were winning a chess match, knowing full well he raped and repeatedly stabbed a little girl because suffering is required for him to get sexually for a minute's pleasure. That criminal is low. You are lower in the moral depths of your lawyer pond.

David Schwartz said...

"What if you learned, the injury was the twelfth one for this careless rescuer? This guy listens to police radio and rushes to the scene as a thrill seeker, and has messed up twelve prior victims. The intentionally injuring rescuer has never done this before, and was just drunk."

The consequence of accepting your argument, though, is that none of this matters. So how does arguing that it *does* matter support your claim? Yes, I agree, all that stuff matters very much.

People not hammers. Some things are within the scope of their choice, and they bear responsibility for the foreseeable affects of their choices.

Supremacy Claus said...

David: You combine both mind reading and future forecasting in one sentence. Both are supernatural and violate the Establishment Clause. Even the Medieval Church said God could do that. Only the lawyer believes man can do that.

If all crime is strict liability, it does not matter in the verdict phase of the trial, decided by a jury. However, it matters at sentencing. Scalia just invented sentencing as a function of the jury. It should be done by sentencing professionals with tort liability to future victims for failing to adhere to the standards of their profession. They counting past behaviors. You would argue the sentence is based on behavior not decided at trial. However, three strikes laws have been upheld as Constitutional.

Anonymous said...

So are your so-called "sentencing professionals" liable if a criminal is given a fair sentence, but then goes on to commit the same crime after his sentence is finished? What sort of sentence should a child molester get if he is caught after the first time he commits the crime?

Two of your arguments don't hold water: 1. "infer is a synonym for mind reading." You're just making that up. You might well believe it, but that doesn't make it true. Therefore, you can't make an argument about mind reading and expect it to hold any bearing on how "infer" is used in court.
2. Latin is the foreign language of the church. Latin was spoken in ancient Rome a good ten centuries before the birth of Jesus. True, Roman Catholicism decided to use Latin, and Latin is the official language of Vatican City. But also consider that the bulk of the New Testament was written in Greek. Should we outlaw Greek in court, too? Or Hebrew? The Koran was written in Arabic -- does that mean we shouldn't use the word "algebra" in court? And what about Mormonism? Isn't that all done in English? Slippery slopes!

Supremacy Claus said...

The primary goal, or perhaps only goal of the criminal law is security of the public. Turn that off, and welcome to Fallujah. There, one is doing personal security full time, and nothing else productive. All other goals of the criminal law are immature, primitive, and not worth a dime of taxpayer money.

There is no fair sentence in this scheme. There is only a safe sentence. The murderer may go home under some circumstances, the shoplifter gets executed under others.

The Establishment Clause applies to the Government. It does not apply to people speaking Latin or any other foreign language.

Latin is mostly spoken by priests today. The other languages are spoken by nations, and American ethnic groups. They are not associated with a religion. We have few Hebrew, Greek, or Arabic words in Government law making or legal utterances. Why is Latin so common? Because our central legal doctrines are copied from the Catechism. If silence is forbidden in a public school as an indicator of endorsement of religion, then Latin is a 1000 times more powerful indicator of the endorsement of the Catechism by government law making. That is forbidden in our secular nation.