Tuesday, January 20, 2009

The crimininalization of bad choices

I came across this blog posting on Twitter one day and it made me think.

One of the cornerstones of our criminal justice system is the presence of intent in the commission of a bad act.  A bad act without intent may be a civil tort (i.e. negligence) without being a criminal act. The Texas Penal Code recognizes four degrees of culpability and the severity of a bad act is determined, in large part, by the degree of culpability that can be proven.

However, in the federal system there has been a steady movement toward result-oriented crimes -- in other words, the bad act itself.  This can be seen in the increasing number of regulatory crimes that have been created over the past century.  No longer must los federales prove that John Doe meant to violate the federal regulatory scheme, now it's enough that a regulation was broken.

It's a way of trying to pin the blame for an event onto a person.  Sure, in some of the giant corporate scandals of this decade people made decisions that they knew violated the law; but some citizens have been charged with crimes solely because they made bad choices or acted upon bad advice.

Rational minds can differ with any course of conduct.  An executive can also make an honest decision that he thinks comports with the law that doesn't.  That doesn't make him a criminal.

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