Ignorance

This chapter begins Lambert v. California, a 1957 U.S. Supreme Court case involving a woman charged with a crime she didn’t realize she was committing. Lambert violated a Los Angles ordinance making it a crime for convicted felons to remain in the city for more than five days without registering with the police, but she was unaware of her duty to register. It describes in more detail what the actus reus and mens rea requirements entail when applied to a defendant who didn’t realize she was committing a crime. As a preface to that effort it discusses and criticizes the maxim that ignorance of the law is no excuse. It then introduces a test, in relation to actus reus, for determining if a defendant who didn’t realize she was committing a crime could have realized she was (the Lex test) and then compares the actus reus requirement to the existing defense of insanity. It thereafter turns to a discussion of the mens rea requirement as applied to ignorant defendants, analyzing some hard cases, and then concludes with a discussion of tracing.

Knowledge

This chapter begins with United States v. Moore, a case from the United States Court of Appeals for the District of Columbia involving a heroin addict charged with drug possession. It describes in more detail what the actus reus and mens rea requirements entail when applied to a defendant who realized he was committing a crime. It discusses, in relation to actus reus, free will as the capacity to choose otherwise, proposes a test to help determine if a defendant lacked the capacity to choose otherwise (the Stephen test), and compares the actus reus requirement to the existing defense of insanity. In relation to mens rea, the chapter explains how the Jekyll test (introduced in Chapter 2) applies to defendants who realized there were committing a crime, and then compares mens rea to the existing defenses of duress and provocation, as well as to the problem of the “willing addict.” It concludes with a discussion of the circumstances under which the state can legitimately ascribe guilt to a defendant who lacked actus reus or mens rea at the time of the crime but whose guilt can nonetheless be traced to a prior guilty act or omission.

Conclusion

This concluding chapter reflects on what has gone before. The idea that a democratic state’s reason for being is to authoritatively resolve disagreements among free and equal citizens over the demands of justice suggests that peace, not justice, is the first virtue of social institutions, including the institutions through which the state imposes punishment. It then ponders, in light of the actus reus and mens rea requirements, the legitimacy of state punishment as currently administered in the various jurisdictions of the United States. Judged only in terms of the actus reus and mens rea requirements, it seems those jurisdictions earn passing grades. Existing rules and doctrines, enacted in the exercise of democratic authority, appear to keep the state’s power to ascribe guilt largely within the bounds of legitimacy. One might nonetheless think those jurisdictions illegitimately criminalize forms of conduct they have no authority to criminalize, or that they illegitimately impose punishments so severe as to exceed their authority. These questions are left for others to address.

Agency

Using as a frame the famous case of Daniel M’Naghten, who suffered from delusions of persecution, this chapter offers a theory of insanity as lost agency, according to which a person is insane if he acts but does not experience himself as the author of his actions. Insofar as the application of the actus reus and mens rea requirements presuppose that the defendant acted with a sense of agency, and insofar as actus reus and mens rea are limits on a democratic state’s authority to ascribe guilt, acting without a sense of agency constitutes another limit on the state’s authority. If a defendant acted without a sense of agency, he is beyond the authority of a democratic state to ascribe guilt to any criminal choice he makes while lacking a sense of agency. Before reaching this conclusion, the chapter explores and criticizes the law’s prevailing account of insanity, which grounds insanity in an incapacity, as well as a proposed alternative account, which grounds insanity in irrationality. After then elaborating on the idea of insanity as lost agency, it compares insanity to other defects of consciousness (hypnosis, sleepwalking, and multiple personality disorder).

Rights

This chapter uses two well-known Supreme Court cases—Powell v. Texas and Morissette v. United States—to frame the subsequent discussion. It offers the reasonable doubt test as a way for each citizen to decide for himself if a proposed limit on democratic authority is a legitimate limit. It introduces formulations of the actus reus and mens rea meant to pass that test, such that they can serve as immunity rights limiting the authority of a democratic states to ascribe guilt to those accused of crimes. It distinguishes actus reus and mens rea as they are conventionally understood (as tools lawyers use to analyze and dissect the elements of criminal statute) from how they will be understood here (as immunity rights). It explains how actus reus and mens rea so understood mean one thing when applied to defendants who realized they were committing a crime and another thing when they didn’t realize they were committing a crime. It then details how mens rea is ultimately grounded in an ill or indifferent will—a lack of sufficient concern for the law and its ends—and proposes a test (the Jekyll test) for sorting ill and indifferent wills from law-abiding ones.

Introduction

The Introduction distinguishes justice and legitimacy as distinct metrics by which to evaluate the rules of the substantive criminal law. It also distinguishes anarchists, who believe no state can or does possess authority (understood as the power to impose moral obligations), and for whom justice is the only metric by which to evaluate the rules of the substantive criminal law, from statists, who believe democratic states can possess authority, and for whom legitimacy is another metric by which the rules of the substantive criminal law can be evaluated. The Introduction introduces the concepts of actus reus (guilty act) and mens rea (guilty mind) as limitations, embodied in immunity rights, against the exercise of the otherwise legitimate authority of a democratic state to define rules ascribing culpability when someone is charged with committing a crime. It concludes with a roadmap briefly describing the plan of the book.

Injustice

This chapter starts off with Alexander v. United States, a case from the Court of Appeals for the District of Columbia involving a defendant from a “rotten social background” charged with murder. The question it ultimately seeks to answer is this: When a democratic state has treated a citizen so badly, as a matter of distributive justice, that we are inclined to say of him that he has been excluded from the life of the polity, is the state nonetheless morally permitted to punish him if and when he commits a crime? It starts with several answers an anarchist might give to this question, distinguishing between a revolutionary response and a reformist response. It then moves onto discuss how a statist, as a believer in the authority of a democratic state, might respond. It concludes that a democratic state, even if it has lost its authority over the disadvantaged, is nonetheless morally permitted to punish those among the disadvantaged who commit serious (or core) crimes, but that it lacks any moral permission, derived from its own authority, to punish them for less serious (non-core) crimes.

Authority

Opening with the case of United States v. Campbell, a case from the Court of Appeals for the Eleventh Circuit involving a real estate broker charged with money laundering, this chapter offers two stories. The first, involving a fictional king named Rex, illustrates the extent to which criminal law theorists (and citizens more generally) disagree about what justice requires across a range of rules governing the imposition of state punishment. In light of such disagreement, how is Rex to decide what, as a matter of justice, the criminal law should be? The second story, involving an imaginary island named Anarchia, illustrates how state authority provides an important good—authoritatively resolving reasonable disagreements among free and equal democratic citizens about the requirements of justice—and explains why those subject to a democratic state’s authority are morally bound to conform their conduct to the law resolving those disagreements. It then argues that a democratic state’s authority to resolve disagegreements among its citizens over the demands of justice is nonetheless limited authority. A democratic state has wide authority, but not unlimited authority. The actus reus and mens rea requirements limit the authority of a democratic state to ascribe guilt.