Those "With Intent To Commit...." Laws

Should the state be granted a presumptive power to read people's minds, in order to discern the intentions of their actions? Or should criminal suspects, upon conviction, be penalized for their outward actions only?

There is always a tendency for government powers to grow, at the expense of individual liberty. Often, a previous power exercised by government will serve as a pretext to arrogate unto itself further logical extensions of that previous power. Should society exchange its liberty for its security, by condoning government pre-emptive and pro-active prior restraint of criminal behaviour, based on presumption of government to read people's minds, and act on their mere thoughts in advance?

All freedom is inherently risky business: so long as other people are free, each of us feels insecure, as to what those other people might do to us. America was not established by cowards, and its very national anthem contains the words "the land of the free and the home of the brave" to describe it. Certainly, if our neighbor points a loaded gun at us, we wish the government would exercise prior retraint upon him, to stop him from shooting us. But should the government prohibit all gun ownership, absenting any proof of intent by would-be gun owners to use the guns for clearly-illegal purposes, simply because they "might do so" otherwise? Some people say "yes", while others say "no".

Our system of law and government is based upon a presumption of innocence until guilt is clearly proven. Under such a system, the burden of proving criminal intent(mind-reading) is always upon the claimant; in most cases, the government. In absence of hard physical evidence, the thoughts of the human mind are at least difficult, if not impossible, for other men to accurately discern. Herein lies the controversy behind the passage of "hate crimes" laws.

To the extent we permit the government to arrest and penalize people just for the thoughts of their minds, to that same extent we will give up freedom. This is a system of government which bases itself upon fear, rather than upon trust. On the other hand, American law does recognize, for example, differing degrees of murder, based upon perception of the degree of intent on the part of the accused to actually take other human lives. Should this notion continue in the law, or should it be scrapped? Surely, in all cases, people are fully accountable for actions which contributed towards or led up to, the taking of other human lives. This would argue in favor of abandoning all consideration of intent in murder cases, and punishing equally for all murder, regardless of the state of mind, or even the external context, in which the murder occurs. Still, we cannot forget the horrors of a Nazi Germany or a Communist-Stalinist Russia, wherein citizens were arrested, tried and executed for allegedly "thinking thoughts against the state".

Every power afforded to government is a two-edged sword which can be used either to our benefit or to our detriment. Suppose we consider a portrait of a naked human person, should the intent context in which the portrait was created make a difference in the eyes of the law, as to whether or not the creator of the portrait is penalized? Should the law consider, whether the portrait showed up in Larry Flynt's "Hustler" magazine, as opposed to being displayed in a respectable public art gallery, and the painting is that of a famous Classical artist, who says he wishes to show man as God sees man? If we consider intent in such matters, we may risk coming to a point of saying the end justifies the means, in all matters of human behaviour. It is OK to break the law, if one is of honorable intention in doing so, we would then be saying. Indeed, the U.S. Supreme Court defined pornography as an appeal to prurient interests, "without any redeeming qualities". The problem of who defines redemption, and by what criteria, still remains.

So long as the American people wish to maintain a free society, it would be best to disregard motive, in the issue of separating legal from illegal behaviour. A society based upon the empowerment of government to read people's minds and hearts when deciding their fate at its hands is altogether terrifyingly inimical to the concept of freedom itself.

-Lawrence K. Marsh