4 ms·

There is a lot to be said against the idea of mens rea and for strict liability. It's an impossibility to accurately gauge someone's intent, on the contrary it

There is a lot to be said against the idea of mens rea and for strict liability. It's an impossibility to accurately gauge someone's intent, on the contrary it's easy to evaluate someone's actions and see if they amount to criminal conduct. Just tick boxes in the criminal code. No thought-reading required. The conspiracy theory goes that the concept of criminal intent makes it easy for reckless prosecutors and (especially) bankers to escape justly deserved punishment. After all, who can read a prosecutor's thoughts and prove that they were not incompetent when they relied on a phrenologist to give evidence but actively malicious? Same with banksters.

throwaway2048 11y ago
The problem with strict liability is the same problem with thing like mandatory minimum sentences. It ties judges hands to address the actual circumstances of an event, and without exception forces at least equal penalties on people who frankly, don't deserve it. There is no balancing point in this equation either. politicians always wanna be "tough on crime", and the latest case where some horrible monster gets a lighter penalty for nuanced reasons the public isn't interested in understanding is sure to result in a push for mandatory minimums and strict liability. Consider the case of something like a child porn thumbnail on your pc. Where did it come from? Might have come from a Google image search, and you are totally unaware of it. However because child pornography possession is a strict liability crime you could be looking at years of jail time. A law without exceptions is tyrannical no matter what its form. The answer to perceived "bad guys getting away with it" isn't always to force harsher penalties regardless of circumstance. The law is not, and never could be a fixed computer program you run that evaluates the fact, and spits out a just resolution.
sliverstorm 11y ago
Strict liability has its place, but so does mens rea. I once bought a motorbike. The man sold it to me from his front porch for going market price. He gave me the keys, he signed over the authentic title. I took it to the DMV to register. The desk worker called the police and had it confiscated; it was stolen property. Under strict liability, I would be a felon. The police officer said to me, 'I have no idea how this happened, I would have been fooled too, he even had the title!?' (paraphrasing) I gather you're arguing that convicting people like me is a worthwhile price to pay for convicting truly guilty people, but I disagree.
fennecfoxen 11y ago
The premise of a Western justice system revolves around protecting society by deterring crime, or punishing bad people, or rehabilitating bad people so that they will not commit more crimes. If someone didn't have an criminal intent to begin with, though, then they cannot be deterred by the law, they're not bad people, and they don't need rehabilitation. Your proposal is a pragmatic way of making it easier to convict people you're unwilling to presume innocent - which is why you identify "banksters" as your preferred bad guys, where you can presume guilt.

throwaway2048 11y ago

The problem with strict liability is the same problem with thing like mandatory minimum sentences. It ties judges hands to address the actual circumstances of an event, and without exception forces at least equal penalties on people who frankly, don't deserve it. There is no balancing point in this equation either. politicians always wanna be "tough on crime", and the latest case where some horrible monster gets a lighter penalty for nuanced reasons the public isn't interested in understanding is sure to result in a push for mandatory minimums and strict liability. Consider the case of something like a child porn thumbnail on your pc. Where did it come from? Might have come from a Google image search, and you are totally unaware of it. However because child pornography possession is a strict liability crime you could be looking at years of jail time. A law without exceptions is tyrannical no matter what its form. The answer to perceived "bad guys getting away with it" isn't always to force harsher penalties regardless of circumstance. The law is not, and never could be a fixed computer program you run that evaluates the fact, and spits out a just resolution.

sliverstorm 11y ago

Strict liability has its place, but so does mens rea. I once bought a motorbike. The man sold it to me from his front porch for going market price. He gave me the keys, he signed over the authentic title. I took it to the DMV to register. The desk worker called the police and had it confiscated; it was stolen property. Under strict liability, I would be a felon. The police officer said to me, 'I have no idea how this happened, I would have been fooled too, he even had the title!?' (paraphrasing) I gather you're arguing that convicting people like me is a worthwhile price to pay for convicting truly guilty people, but I disagree.

fennecfoxen 11y ago

The premise of a Western justice system revolves around protecting society by deterring crime, or punishing bad people, or rehabilitating bad people so that they will not commit more crimes. If someone didn't have an criminal intent to begin with, though, then they cannot be deterred by the law, they're not bad people, and they don't need rehabilitation. Your proposal is a pragmatic way of making it easier to convict people you're unwilling to presume innocent - which is why you identify "banksters" as your preferred bad guys, where you can presume guilt.