Should individuals face incarceration for contemplated criminal actions

Punishing Thoughts

CRIMINAL PUNISHMENT for MERE THOUGHTS

Action vs. Thought in Modern American Law:

fundamental concept in modern American law is the distinction between mere criminal thought and actual criminal conduct. Under criminal theory, these ideas are known as mens rea ("guilty mind"), and actus reus ("guilty act"), respectively (Johnson, 1995). In the United States, mens rea is considered a necessary but insufficient" component of criminal culpability, because malicious or criminal" thought is not prosecutable or punishable, strictly on its own.

Even after criminal convictions for actual criminal conduct, elements of criminal punishment still require a "guilty mind," and sentencing guidelines recognizing varying degrees of malice, even for the same specific act. Typically, criminal statutes distinguish between criminal conduct in several different degrees, such as first or second degree murder, based largely on the specific state of mind, or specific intent of the criminal. In many instances, criminal conduct is punishable by life in prison, or even by the death penalty, such as in the case of first degree murder, which requires a guilty mind, or malice (Taylor, 1982). Conversely, even deadly conduct, is, in certain circumstance, prosecuted and punished much more leniently, such as in the case of second degree murder, involuntary manslaughter, and negligent homicide.

Where the element of mens rea is completely absent, conduct that results in the death of another is not punishable under criminal statutes, such as in the case of gross negligence, which, is not ordinarily addressed as a crime by modern criminal statutes, provided it is not also considered criminally "reckless" (Johnson, 1995).

Perhaps the best, and most recognizable example of the importance of criminal intent in modern American law is the plea of insanity, which, when it is accepted by the court, restricts the outcome of successful prosecution to confinement in a medical treatment facility, instead of penal incarceration.

A recent example of this legal distinction is the case in which lawyers for John

Hinckley Jr. appealed to a Federal judge in Washington, D.C. To allow the convicted attempted assassin of former President Ronald Reagan longer unsupervised visits to his parents, based on testimony of psychiatrists that Mr. Hinckley's current mental state does not constitute a risk of future violence or criminality (Indystar.com, 2004).

Mere Thought vs. Actual Criminal Intent:

Whereas criminal thoughts alone are usually not punishable as crimes, modern

American law does generally authorize public safety authorities, law enforcement, and mental health agencies to confine citizens against their will, anytime mere thoughts meet certain statutory criteria considered to represent a legitimate threat of harm to themselves or to the general public. While harmful thoughts of this nature are not defined or punished as "crimes" per se, they can result in involuntary confinement, nevertheless.

The Law also recognizes another distinction that does define certain particular types, or degrees, of mere thought as crimes. Specifically, thoughts that meet the legal criteria defining criminal "intent," especially when combined with (otherwise perfectly legal) conduct that the criminal law defines as a "substantial step" toward criminal conduct. A phone call to order rat poison (which, ordinarily, is a perfectly legal act), becomes a "substantial step" toward an attempted crime when combined with a mere "thought," expressed in a private diary that is accidentally lost and read by someone who turns it in to the authorities after reading a private thought about murdering a roommate by poisoning. Likewise, the serious crime of "conspiracy" requires only a mutual thought, in the form of an agreement between two or more individuals, to commit a future crime, even without any actual criminal conduct.

In all likelihood, many (if not most) criminal conspiracies are never detected or prosecuted, precisely because they concern completely private exchanges of thoughts between people without witnesses to report the crime. Where two individuals agree to rob a convenient store subsequently abandon their plan only when they happen to learn from another friend that the proprietor is armed, they have already committed a criminal conspiracy, punishable by a lengthy term of incarceration.

Hypothetical Scenarios in Modern Culture:

Steven Spielberg's recent movie Minority Report explored the notion of criminal prosecution in the present, for future crimes not yet committed at the time of prosecution, based on a short story by Philip K. Dick. The movie is set fifty years in the future, when law enforcement authorities employ psychic readers ("precogs") to identify, prevent, and ultimately prosecute criminal activity even before it happens.

Detective John Anderton, played by Tom Cruise, discovers that the "precogs" have implicated him in a future violent murder of a person still unknown to him at the time of their precognition.

Minority Report relates more to psychic precognition and forecasting the future than to prosecution for criminal thought, necessarily, since Anderton never entertained any thought about his future "victim," much less considered murdering him, since he was still unknown to him at the time of the precognition. Nevertheless, in the day and age of modern medical tools such as MRI, CT, and PET scans, and the detailed brain imaging they make possible, it is conceivable that future technologies might indeed be able to read actual thoughts, or even subconscious thoughts, entirely unknown to a person in any conscious manner.

This raises very difficult legal issues, because, unlike the crime of conspiracy, which is already defined by the American Criminal Justice system, there is no such thing as any crime of thinking about committing a crime, or even planning to commit crime in the future, where a second party is not involved, or where no actual steps are undertaken in furtherance thereof. Under current law, someone could even say to an acquaintance, "I'm thinking about killing my landlord," without fearing criminal prosecution unless he specifies more particularly that he has an actual plan to do so, or takes actual steps toward the murder.