Sandusky's Mens Rea

With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.

The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.

Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.

“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”

And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.

Amazed by the Numbers

Round numbers are supposed to be easier to get your mind around. But it’s hard to do that, when the round number is one American in every 100 behind bars.

The American prison system currently holds about 1.6 million people. Jails confine another 735,000 more, according to latest data from the Bureau of Justice Statistics.

The jail figure is down slightly in the last few years. But when the number of prison inmates is added in, the total number of people confined in correctional facilities approaches 2.4 million.

It’s not so much a system as a set of systems, consisting of 50 states, the District of Columbia, the feds, and various local governments — particularly jails at the county level.

With so many decision makers, it’s hardly a vast conspiracy. The cumulative effect, however, is Leviathan-like in size. Scholars now call it mass incarceration.

This Leviathan is a labyrinth for many who are inside it. With prison terms so long and rehabilitation resources so scarce, it must seem like being stuck in a maze, trying to get out.

Indeed, mass incarceration has also become a labyrinth in policy terms. But no Theseus is in sight, to slay, or at least tame, the beast our society has created out of fear and malign neglect.

The closest we’ve come is Sen. Jim Webb, whose sensible proposal in 2009 for a national commission to review sentencing policy and practice went nowhere fast.

Instead of a single national hero, how about a host of heroes at the state and local level? In the dark maze, they could be a thousand points of light.

Prison or Probation? Wastewater Dumping Case Poses Familiar Question

What should the sentence be, when someone is convicted of illegally dumping mass quantities of wastewater on public and private property?

By mass quantities, I mean millions of gallons. The dumping was done by a 50-year-old Pennsylvania man, Robert Allan Shipman. He was the former owner of a business that disposed of products that included sewage sludge and restaurant grease, as well as wastewater containing byproducts from natural gas drilling.

Sadly, Shipman took the seemingly easy way out. He told his drivers to dump the water into steams and abandoned mines, and on various business properties in several western Pennsylvania counties.

Eventually, the harebrained scheme was discovered, Earlier this year, Shipman pleaded guilty to numerous criminal counts. Among them were theft, tampering with public records, and conspiracy.

Understandably, prosecutors sought a prison sentence. They argued that incarceration was needed to send a message that would deter other would-be polluters from harming the environment on such a disturbing scale.

Instead, the judge imposed a sentence of seven years of probation and 1,750 hours of community service. Shipman was also fined $100,000 and ordered to pay $257,000 in restitution.

Prosecutors are appealing the sentence, the Pittsburgh Post-Gazette reported.

Trespass at the Open

The seemingly ageless Bob Costas was conducting an interview near the 18th green of the Olympic Club in San Francisco with U.S. Open winner Webb Simpson.

Suddenly an oddly dressed interloper inserted himself into the picture. Within seconds, the camera cut away — but not before the interruption broke the flow of the interview.

Simpson dealt with the distraction by acknowledging it. “Enjoy your jail cell, buddy,” he said, glancing off camera. His tone seemed to express genuine concern, not derision.

Costas reflected back Simpson’s statement, as good interviewers often do. The “gendarme” was now in charge of the situation, Costas observed.

This was a somewhat odd word choice, it seems to me. After all, “police officer" would have been much more straightforward. But it did give Costas a chance to show off his vocabulary.

In any case, I record the exchange because of how it reflects the reliance our society continues to have on incarceration, even for nonviolent offenses. Locking someone in a cell is America’s default position when dealing with deviant conduct that has been defined as criminal.

We are arguably not as open a society as we like to think ourselves to be. A more open society would probably not be so quick to bundle its enemies off to jail.