Quietly Thinking Aloud

abaldwin360:

Florida is heavily scrutinized every election; partially due to the high electoral vote count and its swing state nature, but also because of controversial vote counts from 2000 and on (younger Bush’s first election). This year is shaping up to be no different, as serious questions are being asked about early vote counts already.

Broward County, a Democratic Party stronghold located in south eastern Florida, has already has some serious early vote counting issues. The total vote count was revised by 536 total, from 28,330 down to 27,794. That might not seem like much, but remember that in the 2000 election, the entire state was decided by only 538 votes.

However, the disturbing part is that in some areas the count was off by a pretty significant amount — one from 2,945 to 1,942! The Grio, an NBC News affiliate, offers this breakdown:

They go on to report,

“There could be a very simple explanation. I have no idea,” said David Brown, a political consultant who is working for three Broward candidates, and who downloaded the Sunday early vote totals Sunday morning, only to be asked later by a colleague for the numbers, which he retrieved from his phone. When he looked at the revised totals, the Pat Larkins number stood out. “Almost every one of the precincts changed,” Brown said. “Some by two or three, one by about 100. But the Pat Larkins Center, that’s more than a thousand votes. I’m curious why.”

Brown said that when he inquired about the numbers, he was told by the elections office that the changes had resulted from a “computer glitch.”

Computer glitch? If so, they should release the exact details of such a glitch along with testimony from several computer experts, because votes aren’t something that you play around with. If there is a glitch, it needs to be fixed, and immediately. They also said that there were a couple transposing errors that were fixed, but there is no excuse for any of this.

source

letterstomycountry:

Actus non facit reum, nisi mens sit rea.

“There can be no guilty act without the guilty mind.”  

It is a fundamental principle of Anglo-American justice that you cannot be guilty of a crime unless you intended for it to happen.  There are of course multifarious nuances in the analysis of what constitutes intent on the part of an actor.  But the basic principle remains.  We should only punish people who intend to do wrong.

At common law, every crime was minimally composed of two elements: the Actus Reus (“evil act”) and the Mens Rea (“evil mind”).  What makes an act worthy of punishment is not merely the harm it visits on others, but the state of mind of the actor.  We punish a person who kills intentionally moreso than a person who kills accidentally because the former is, ceteris paribus, a greater risk to his peers, and less likely to have future conduct influenced by remorse.  We fear a murderer who kills in cold blood more than a negligent driver who accidentally hits and kills somebody because the driver was distracted by, e.g., texting or lighting a cigarette, because the latter is less likely to kill again, or be unmoved by remorse.  So we punish them less.

For those of you unfamiliar, there are generally four levels of Mens Rea:

1. Knowledge/Purpose: this describes a state of mind in which the actor either intends a certain result, or knows with substantial certainty that their actions will lead to a certain result. (example: if I stab somebody in the chest, I can be charged with knowledge with substantial certainty that my act will lead to their death).

2. Recklessness: this describes a state of mind in which the actor doesn’t have purpose to achieve a certain result or knowledge with substantial certainty, but nonetheless knows there is a substantial likelihood that their actions will lead to a certain result, yet proceed anyway.  (example: disciplining a child by breaking a beer bottle over their head instead of spanking them).

3. Negligence: this describes a state of mind in which a reasonable person under the circumstances would have taken precautions to prevent a certain result from occurring.  (example: failing to recognize that an individual is under-age prior to engaging in sexual intercourse with them).

4. Strict Liability: this describes…no state of mind at all.  Strict liability is not so much a fourth category of Mens Rea so much as the absence of the other three forms of Mens Rea.  

It is this last category that generally leads to the greatest controversy.  Strict liability has expanded in recent years, as legislatures and courts abandon fundamental criminal law principles for administrative convenience.  ”Tough on crime” policies have encouraged lawmakers and jurists to take the easy way out; and they are of course supported by a Supreme Court who shares Benjamin Cardozo’s fear of allowing the criminal to go free because the constable blundered.

Many drug crimes are strict liability crimes.  State drug provisions are shot through with rebuttable presumptions of ownership.  Mere possession is often evidence of intent: unwittingly slipping on a pair of jeans with a vial of heroin that belongs to your friend makes you a felon, whether you did it intentionally or not.

Many drug crimes are in fact strict liability crimes, though not all states treat them as such.  Florida, however, has decided not to sweat fundamental principles of criminal law:

Florida will remain one of the only two states in the country that sends people to prison on drug possession charges without first proving the person knew what they were carrying was illegal.

In a decision that will assure thousands will remain behind bars on a charge that many defense attorneys and some judges insist is blatantly unconstitutional, a divided Florida Supreme Court on Thursday upheld the state’s drug possession law.

“There is no constitutional right to possess contraband,” Justice Charles Canady wrote for the majority. “Nor is there a protected right to be ignorant of the nature of the property in one’s possession.”

Dissenting Justice James E.C. Perry makes the obvious point about “what it would be like if this principle applied to other laws:”

Could the legislature amend its murder statute such that the state could meet its burden of proving murder by proving that a defendant touched another and the victim died as a result?” he asked, quoting from a federal judge who like several circuit judges in the state struck down the statute as unconstitutional. “Could the state prove felony theft by proving that a defendant was in possession of an item that belonged to another, leaving the defendant to prove he did not take it?

This is yet another casualty of the Drug War.  Strict liability crimes existed long before the War on Drugs came into existence, but generally they were viewed with extreme suspicion by judges who were schooled in the fundamental principles of the criminal law.  Historically, strict liability crimes were only used where it is extremely difficult or impossible to prove the intent necessary to demonstrate that a particular crime was committed.  

At no time in history, however, have so many state judges become comfortable with strict liability crimes on the scale they are implemented today.  When a prosecutor doesn’t have to prove intent, it becomes much, much easier to convict people of drug crimes.  You can safely bet that this has contributed in no small way to the swelling of America’s prisons with non-violent drug offenders.

Unfortunately, for many state legislators, and judges with a retributive streak, none of this matters.  All that matters is getting those dastardly drugs off the streets.  All that matters is punishing the addicts, the junkies, or the dealers; small-time or big-time, doesn’t matter.  Throw them all behind bars.  And if that means we need to cut down fundamental principles of criminal law to get at those evil drugs, so be it.

The following exchange from A Man for All Seasons, via Erik Kain, comes to mind:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Indeed.