Thursday, May 17, 2007

Lurking, Legislating and Safety II

To continue yesterday's discussion of anti-lurking laws, I should point out one area of disagreement that I have with the Minnesota Lawyer blog post on this subject (I say this as a fan of the post's author, Barbara Jones, and of the publication in general). For starters, let's look at the title of the post:

Lurking: Let’s eliminate the thought police

The "thought police" reference comes from the fact that the actual offense is "lurking with intent," although you have to read the Minneapolis Star Tribune article (or presumably the Council on Crime and Justice study, if you can wade through the Council's website to find it) to learn this fact. Jones' post doesn't provide a link to the lurking study itself or to the news reports about it. Blogging pointers aside (I am sure I would need pointers writing for a weekly newspaper), I disagree with the notion that reference to "intent" in criminal law is something unusual or Orwellian. From law school, I can recall general intent crimes and specific intent crimes. Aren't there laws proscribing drug possession with intent to distribute?

There is something to this, though. In addition to criminal culpability and greater penalties based on intent, there is a new (going on 20 years) trend of punishing motive for crimes. To clarify, intent determines what you meant to do. Motive determines why you did it. These new "hate crimes" laws do more than distinguish between an accident and purposeful behavior (which is mainly why the criminal justice system looks at intent), they seek too add punishment for having the wrong attitude about a certain group while committing the crime.

It would be difficult to make the case that merely having intent as an element of a crime raises the spectre of "thought police." However, there is a real debate "lurking" over these new so-called hate crimes. That is where we should focus our energies.

Finally, on the subject of the thought police, Ralph Remington of the Minneapolis City Council favors keeping the lurking ordinance, but advocates a different solution.

.... Police officers should be mandated to have yearly psychological exams along with their already required yearly physicals. Police officers should also be mandated to have muscular, robust, cultural sensitivity training. If we direct our energy toward creating policies and best practices with teeth, we can truly start to whittle away at some of the racial disparities in our criminal justice system. On the other hand, it is completely wrongheaded to take away tools that good police officers need in order to execute their jobs.

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