Way back when I went off to law school, the first semester of the first year included the core course in Criminal Law. It was one of my favorite classes ever. One of the fundamental principles we learned in the study of criminal law is that, in order to hold a person criminally responsible, under the common law, we needed to have both mens rea, and actus reus.
Mens Rea is Latin for “guilty mind”. Actus Reus is Latin for “guilty act”. Therefore,mens rea refers to the mental element of the offense that accompanies the actus reus, or physical action taken in carrying out the crime.
Perhaps the easiest way to understand why it’s probably a really good idea to include both the mental and physical components in order to charge someone with a crime, then prosecute him, then convict him, and then send him off to prison, is that every one of us would probably have to go to prison at one point in our lives if we could get in trouble for thinking bad thoughts.
In our modern age of technology where we can communicate via text message, email, Facebook messages, etc., our ability to share what’s on our minds has never been easier. Therefore, in a very real sense, police and prosecutors can now easily identify and prove many many more instances of a “guilty mind” than ever before. Thank God we still have that thing called actus reus, right? Well, not so fast. Maybe we don’t have it as much as we think we do.
In perhaps the most blatant display of prosecutorial abuse, ignorance, and unfounded community hysteria I think I’ve ever seen, about 5 years ago, a small town in the Texas Hill Country sent a 17 year old boy off to prison with a sentence of 25 years for sending a private text message to his 16 year old friend. The text message itself was nothing more than an attention-seeking message by one immature teen to another, in which the sender, diagnosed with bi-polar disorder, and not taking his medications as prescribed, expressed his woes and his feelings about himself and the high school he had formerly attended. Specifically, he said, to his friend, via text, “I feel like blowing my head off and going and shooting up _________ High School”.
Unbenownst to the distraught sender of the text, the text was forwarded to at least two other kids, and one of them sent the original sender a text, which said, “I’m down for Columbine.” When the text using the dreaded word “Columbine” was seen by that kid’s mom, everybody freaked. The cops, the small town news media, the prosecutor, and sadly, the Judge who was given the freedom to sentence the boy to anything between probation and 25 years. Judges are elected, and this particular town had stopped looking at the evidence the moment the word “Columbine” was in their newspaper and on their televisions.
Although at the time, nobody seemed to care, it probably is worth noting that the kid in question didn’t own a gun, a bomb, or even a knife, and he had never acted violently towards anyone. There was never any evidence found that he had any access to any means to obtain a gun and shoot up a high school. Heck, there was NO evidence found that he planned to do anything. In other words, other than the words of the text itself and the physical action of sending a text, we have no actus reus.
Unfortunately, this blog post is not some interesting theoretical exercise that law students discuss in the comfort of their first year Criminal Law class. It is, unfortunately, a real case I am handling, and it is unbelievable to me that this kind of small town lynch mob mentality can still happen right here in the USA. There are many places in the world where people are punished for their beliefs, their thoughts, and their words, and we are quite fortunate to live in a country where we have due process under the law, and all enjoy basic civil liberties. In places like China, Iran, North Korea, and Syria, it would not surprise me at all to learn that a person would be imprisoned for having thoughts or opinions, or expressing them, when such thoughts and words are deemed to be a threat to civil order.
In Texas, and anywhere else where the United States Constitution still means something, the life of one young man, with hopes and dreams just like everyone else, ought to be far too precious to be thrown away just because he sent a text to his friend in a moment of sadness and despair.
Now, five years after the ill-advised text sent by a 17 year old, I have the privilege to try my best to convince the Texas Board of Pardons and Paroles that being in prison for five years for sending a text, and then having to be on parole for the next twenty years, is more than enough punishment.
