Are Evil Intentions A Crime?

Goske

It could be said, especially in this time when so many live in constant fear of the possible crimes resulting from increased terrorist activities, that Stephen Spielberg’s intent was as much to make a political statement as it was to produce a highly entertaining and dramatically engaging sci-fi film with Minority Report. Ironically, we cannot be sure of Spielberg’s intent unless he himself confirmed such to be true. Spielberg's film, Minority Report, envisions a society in which people are arrested for crimes they have not yet committed. How can the government know, with such certainty, that these future crimes will occur? Three "pre-cogs," genetic freaks possessing the power to see the future, exercise their pre-cognitive abilities through an experimental demonstration of governmental power of intervention. This government program relies on the majority opinion of these pre-cognitive minds to either prevent the commission of intentional crimes, or to punish presently innocent people for their thoughts of criminal activity- depending on one’s perspective. Are evil intentions a crime? Arguably the answer is no, considering evil to be a moral reference and not one of criminal nature. Yet, the law secures a statute to run a circle around this moral dilemma, drafting the Criminal Attempts Act of 1981 (“Attempts”) to deem a person guilty of an attempt to commit a crime when it can be shown that sufficient evidence exists to prove the defendant took actions that were “more than merely preparatory to the commission of an offense” and the defendant acted with the intent to commit that offense. The issue at hand then becomes a question of interpretation or perspective, answered in the minds of a judge of jury much like the pre-crimes seen in the minds of the pre-cogs. The question asks whether the defendant’s actions have been sufficiently proven to be considered progressions beyond mere preparations for the crime, and whether the actor possessed a clear intent to commit the offense.

In Glendale California, a case against Larry Eugene Phillips presented such a question to the court. During a routine traffic stop, it was discovered that the trunk of the car Phillips was driving contained an extensive arsenal of riffles, ammunition, and other such items considered to be part of a classic “bank robbery kit” (Robinson 4). The question here was whether or not Phillips was guilty of an attempt to commit robbery, based on the evidence found and the circumstances of his arrest. Under California law, Penal Code section 664 defines criminal attempt whereas "Any person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable ...." (People v. Staples 2). The broadness of the definition here lends itself to relying necessarily on references to case law for further explanation and precedence. People v. Buffman provides more specific language regarding criminal attempt. People v. Buffman furthers that, "preparation alone is not enough [to convict for an attempt], there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature." By these standards, it can be reasonably argued and agreed that Phillips’ actions did not go beyond that of preparation. He was not at the scene of any potential crime, he had not taken any substantial step toward robbing a bank other than mere acquisition of an arsenal of firearms, ammunition and supplies and a doubtful explanation. And even that evidence does not lead necessarily to the commission of a bank robbery; it is equivocal in nature. Accordingly, a jury agreed and returned a verdict of not guilty. But how far should the government go in criminalizing acts that do not constitute completed crimes, and instead are actions that circumstantially, would precede an offense that would be criminal if it was to take place?

Criminal codes do not restrict themselves to proscribing harmful conduct or results, but also criminalize the various acts that precede harmful conduct. Thus, codes are put in place to punish a perpetrator for agreeing to engage in criminal conduct- conspiracy, soliciting such conduct- incitement, and taking a substantial step toward engaging in such conduct- attempt. Codes also elevate the seriousness of some crimes if they are committed with the purpose of committing some further crimes (“Criminal”). Thus, trespass or breaking and entering becomes attempted burglary if committed with the intention to commit other crimes on the premises. Simple ...

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Deeming these offenses as criminal, and including provisions to impose the same punishment for an attempt to commit the crime as for the completed criminal act, is thought to offer a deterrent that will help to prevent the people from falling victim to the threat of harm or offense. If sufficient evidence exists to reasonably show that the actor took steps beyond merely preparatory, and came reasonably close to the commission of the crime, than he or she should not be excused on the basis of failure to carry out the intended crime, whatever the reason. The only exception here is if the actor, by his own will and conscience, made a decision to terminate the commission of the crime and cease all progress towards such on a basis other than the being caught in the act.

On the subjective spectrum of the issue, this position weighs more heavily on the mental state of the actor. Here there is less account for the stage of preparation and more for the mental state of the actor in relation to the preparatory acts. The development of intent in the mind and behaviors of the defendant and the perception of increased likelihood that the actor will willingly and purposefully commit the crime is more likely to warrant legal and judicial intervention. The court upheld this premise when is reversed the decision of Anderson v. Ryan [1985] AC 560 H/L, ruling that “impossible” crimes; crimes where, unbeknown to the actor, circumstances would make it impossible for the criminal act to be completed, and yet the defendant went beyond preparation and acted with full intent to carry out the crime; were considered an offense. This decision demonstrated the importance of the actor’s mental state, mens rea, in determining the criminality of the acts. Here, the defendant held the belief that the crime could be committed, possessed the intent to complete the criminal act and stepped beyond preparation towards commission of the crime; stopped only by unforeseen circumstances.

What mental states are required for these "inchoate crimes"-i.e., crimes that are preliminary to bringing about the harms that are the criminal law's ultimate concerns? The mental states cannot be identical to those required for completed crimes and completed attempts, for the defendant committing an inchoate crime is aware or believes that there is still time to desist and renounce. That awareness or belief is at least one qualitative distinction between the mental states of completed and inchoate crimes.

From this perspective, having the mens rea to commit the crime and sufficient evidence of progressive actions towards exercising that criminal intent warrant the charge of criminal attempt. The line drawn is subjective, depending on the crime and circumstances, but the foreseeable costs of inaction against significantly potential criminal activity are considered greater than the potential costs of stricter interpretation of inchoate crimes.

While we must acknowledge that the theories of defense and protection rest on forecasting the future, we must also recognize the extraordinary foresight necessary to confirm, with such a degree of certainty, the definitive outcome in the future. It would require a something of a supernatural power to read minds or psychic intuition to guarantee the intentions of another person, as they exist only within his mind. We can only make reasonable assumptions based on sufficient evidence and call into question the facts to support our decision. Subjectivity emerges as a significant challenge to consistent interpretation of this element of law. If, for example, a person who has the mens rea to commit a crime, but gets no further than the preparatory stages, is not guilty of the crime. The distinction becomes subjective not only in determining where the line marking the end of those preparatory stages will fall, but also in establishing that the actor did possess intent. Intent cannot be conclusively determined; it is a collection of motivating thoughts and reasons providing a purpose for a person’s actions. Intent can only be proven as far as being a reasonable assumption, drawn on the basis of facts and relying on the common sense of a reasonable person to draw a likely conclusion.

While evidence can prove the facts of a case- what acts were undertaken by the defendant, etc.- it becomes notably more difficult, if not impossible, to prove that these acts were undertaken with the intent to culminate with the completion of an ultimate criminal act. As in the case of Larry Eugene Phillips and Emil Matasareanu, the two men found in possession of what the experts deemed a typical “bank robbery kit” during a routine traffic stop, to find them liable for attempted robbery would call on the assumption that the supply of weapons and accessories was intended for use in a bank robbery (Robinson 4). Further, one would have to find that gathering and transporting such a supply would constitute an act that is considered more than merely preparatory to the commission of the offense of robbery. Such a finding would be highly subjective, especially among a jury of common citizens unfamiliar with precedents set by other cases of similar nature. Even then, the jury would be to follow their intuition. While it may seem likely or even probable based on common assumptions or judgments, it is entirely possible that the two men had no such intentions. The bottom line is that regardless of how suspicious the evidence may seem, we cannot prove that they in fact intended to commit robbery. That claim is merely a circumstantial assumption.

In conclusion, ideation can motivate behavior for good or evil when conscious or subconscious thoughts take precedence as a result of intensity or frequency. Thoughts and ideas do not constitute crimes, but they do serve as the genesis for criminal behavior. However, not all evil thoughts portend evil. Artistic ideas and expressions, violent fantasies and outbursts of anger and emotion can judged immoral or socially unacceptable, but we have built our nation on the freedom of thought and expression. It is a necessary component of the law to enforce criminal acts that, according to the sufficient evidence, are obviously beyond the boundary of mere preparation for a crime, and cross into what we reasonably consider the preliminary steps of commission. What is unnecessary and a direct threat to the foundation of our governmental protection is prosecution for mere suspicion of criminal activity or based on a theory of intent.

Physical exertion provides the link between thought and action. Depending on the sophistication of the criminal and the complexity of the criminal act, preparatory steps can range from simple to complex. These actions, no matter how stealthy, signal criminal intent to an astute observer. These actions warrant suspicion and should incite the need for further surveillance and more scrutinizing observation in anticipation of an offense, but must remain along the fence of our civil rights and Constitutional protections.

The fear stirred by the recent terrorist attacks, the looming threat of further attack, a war begun on suspicions of involvement in domestic terrorist attacks and suspected weapons of mass destruction has pushed the boundaries of criminal intent to dangerous extremes. The passage of the Patriot Act in 2002 and other such legal statutes that followed attempt to expand the protective powers of our government against foreign attacks. Yet these acts have American citizens locked away, deprived of constitutional rights to due process on charges that they may be “guilty of planning something” by reason of suspicion. Nat Hentoff, writer for The Progressive, cites the prophecy of Senator Frank Church, when he said in 1975 that future government intelligence capabilities could "at any time be turned around on the American people, and no American would have any privacy left--such is the capacity to monitor everything, telephone conversations, telegrams, it doesn't matter." Senator Church, referring to "potential" enemies of the state, warned: "There would be no way to fight back because the most careful effort to combine together resistance to the government, no matter how privately it was done, is within the reach of the government to know"(Hentoff 2002).

Are evil intentions a crime? The answer falls within a gray area of the law, the subjective nature of which can ignite a spectrum of reasonable responses. Majority opinion, represented by the outcome of trials raising such questions and decided by juries and judges, reflects the belief that some substantial and observable acts toward the commission of an intended crime be shown. Furthermore, these acts must be considered reasonable by the deciding party, and have been carried out with “mens rea,” or evil mind. Although this speaks to the general immorality of motive or vicious will, suspicion of such intent is not enough by itself to substantiate criminal attempt. Under Constitutional law, the defendant must have acted with the willing and knowing desire to cause harm, and acted with the knowledge that the social harm is virtually certain to occur as a result of his conduct

It can be argued that evil intentions, in and of themselves, are not a crime. Intent can be defined as a course of action that one intends to follow; an aim that guides an action; an objective. By this definition, it would seem that no observable action has taken place. Intentions may remain as such, unfulfilled, and never manifest into actions or criminal attempt. Instead, intention refers to the motivation of a person, having the potential and desire to carry out acts that could lead to the commission of a crime. Criminal attempt requires that this intent, along with sufficient evidence of actions taken beyond mere preparation for the crime be established. By this definition, mere intentions are not enough to constitute a crime. To consider suspected or presumed intent sufficient grounds for an attempt charge would be a subjection of a person’s thoughts subject to criminal prosecution.

Returning to the question at hand, are evil intentions a crime? In the futuristic society of Spielberg’s Minority Report, people are arrested for crimes they have not yet committed. How can the government, or anyone for that matter, know that they will commit future crimes? We may think we know what will occur, referring to past experience and our assumptions that a reoccurring series of events will result in the same, inevitable outcome, but this does not always hold true. Each event and each instance is independent in and of itself and is not dependent on prior outcomes. We cannot know, with absolute certainty, what will happen until it happens. Relying on presumptions or premature conclusions may only lend itself to proving the fallibility of the system. It is necessary that the government not act with excessive haste in determining the merits of inchoate crimes, and reserve judgment pending evaluation of the facts of each case against the letter of the law. While it is vital that our law enforcement be able to anticipate criminal threats before they can take place and secure laws, criminalizing acts that can be reasonably proven to precede crimes, in order to provide a legal and social deterrent from crime. And while the safety and protection of society and the enforcement of our laws must remain top priority, it must not be done so at the cost of personal freedoms or the guarantee of civil rights which make life in this country worth protecting. If government went so far as to risk shaking the foundation upon which this nation is built in pursuit of those “pre-criminals,” the cost of such a witch hunt would be greater than the foreseeable costs of relative inaction.

WORKS CITED

Attempts Under Criminal Attempts Act of 1981. 24, Nov. 2001. Student Academic Database. 15 Sept. 2003 <>.

“Criminal Law: an Overview.” 18 Feb. 1999. Legal Info Institute. 20 Sept. 2003 www.law.cornell.edu/topics/criminal/>.

Hentoff, Nat. “Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations.” Progressive. Sept. 2002: 58-60.

Kadish, Stanford. Reckless Complicity. Journal of Criminal Law & Criminology. Chicago: Winter 1997. Vol. 87, Iss. 2; p. 369

Kennedy, Joseph. “Making the Punishment Fit the Crime.” Emory Law Journal. 51.2 (2002): 43.

Robinson, Paul H. Would You Convict? Seventeen Cases that Challenged the Law. New York: NYU Press, 1999.

Attempts Under Criminal Attempts Act of 1981. 24, Nov. 2001. Student Academic Database. 15 Sept. 2003 <>.

Swingle, H. Morley. “Criminal Attempt Las in Missouri: Death of a Tale of Two Theories.” Journal of the Missouri Bar 56.3 May/June (2000).

“Thoughts Must Not Become a Crime.” Wall Street Journal (Eastern edition). 17 April 2001: A21.

United States. Court of Appeals, Second District, Division 5, California. People v. Staples. California, 1970.

Possession of Legal Materials Under Circumstances Serving No Lawful Use

More common are cases where the defendant has been caught possessing items that are by themselves legal to possess, under circumstances suggesting his intent to use them to commit a crime.66 The sufficiency of the evidence in cases of this sort will depend upon the circumstances of the particular case. The general view is that mere possession of non-illegal materials that can be employed in the commission of a crime does not constitute an attempt.67 Two significant variables can push this preparation into the substantial step arena: (1) the nature of the materials, especially their distinctiveness as an instrumentality of the contemplated crime; and (2) the location of the materials -- whether they have been brought to the scene of the contemplated crime or have merely been acquired.68 For example, possession of a drill, a dent-puller and other tools on a parking lot at 5:30 a.m. constituted a substantial step toward car theft, even though the tools unquestionably had legal uses as well.69 An inmate's possession of a rope and hammer in an unused portion of a prison amounted to a substantial step toward escape.70 A student's possession of rat poison in her purse at school after she'd told others she intended to poison her teacher's coffee amounted to a substantial step toward murder.71

(MISSOURI LAW)