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Article Excerpt
I. INTRODUCTION
With respect to states of mind, we are of many minds. Sometimes we think mental states matter, and sometimes we think they don't. Most simply, bare voluntariness is usually viewed as a threshold requirement for legal or moral responsibility. Perhaps it seems obvious that purposeful acts should be treated differently than mere accidents, an intuition reflected in Holmes's quip that "even a dog distinguishes between being stumbled over and being kicked." (1) In some contexts, legal standards not only ask whether an action was voluntary rather than accidental, but inquire further and attempt to determine the actor's specific purposes or reasons for action. In still other circumstances, the law denies the relevance of subjective mental states altogether by imposing strict liability standards or "objective" tests. Again, we are of many minds: sometimes we forgive or even admire those who mean well but do badly; at other times we say that good intentions pave the road to hell.
Inquiries into purpose, intention, and motivation are especially prevalent in constitutional doctrine. (2) Though it is not intuitively obvious that the government entities regulated by these doctrines can be said to possess "states of mind" at all, courts have developed various methods to assess governmental motives or purposes. (3) As many scholars have noted, motives play central roles in First and Fourteenth Amendment analysis. (4) The difference between a valid regulation of speech and a violation of the First Amendment might turn on whether the state intends to suppress particular ideas. (5) The permissibility of public displays of religious symbols can rest on whether the state intends to promote religion. (6) The constitutionality of state action with disparate impact by race or gender may turn on whether the state intends to discriminate. (7) Courts and academic commentators alike frequently refer to Holmes and the dog's distinction to explain these rules: the Constitution is violated not when an individual is stumbled over by state actors, but only when she is kicked. (8)
Of course, the state doesn't often literally kick its citizens. But in the enforcement of criminal laws, it regularly uses physical force against them. And in the constitutional doctrines that apply to the most systematic and severe uses of force--imprisonment and execution--state intentions matter greatly. (9) Constitutional evaluations of prison and death sentences begin with questions about the state's specific "penological purpose." When those already incarcerated challenge specific events or conditions within a prison, constitutional doctrine requires an assessment of prison officials' intentions. In sharp contrast to the law of constitutional criminal procedure, which often eschews inquiries into police officers' subjective mental states, the law of punishment frequently asks what state actors intended. (10)
This Article takes up two questions concerning state intentions, one inquiry narrow and doctrinal, the other much broader and more conceptual. With respect to doctrine, the Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. This task is newly important, as it is only recently becoming evident that there is a constitutional law of punishment, distinct from the constitutional law of arrests, investigations, and trial procedure. (11) As the United States' prison population continues to expand and as death sentences continue to capture substantial public and judicial attention, many of the most pressing controversies in criminal justice concern not the ways in which government investigates or prosecutes crime, but what it does to criminals after conviction. (12) In this context, we need to learn the constitutional law of punishment, and an important first lesson is the ways in which a state's penological purposes (or lack thereof) determine the constitutionality of punishment. (13)
State intentions are relevant to the constitutional law of punishment in three primary ways. First, as a threshold matter, courts may decline to apply the Ex Post Facto Clause, Double Jeopardy Clause, or other constitutional restrictions on the penal power unless the challenged policy or practice was adopted with punitive intent. In other words, if a restrictive state action that resembles punishment--confinement in a state prison, for example--is intended to serve civil, nonpunitive goals, the constitutional restrictions on punishment do not apply. (14) Second, courts evaluate the state's penological purposes as a component of Eighth Amendment proportionality analysis. When a defendant challenges a sentence as excessive and thus "cruel and unusual," courts will inquire into the state's purposes in punishing to decide whether the sentence is in fact too severe. (15) Finally, official intentions matter in the analysis of Eighth Amendment challenges to prison conditions or uses of force within prison. A prisoner challenging the conditions of his confinement must show that prison officials acted with "deliberate indifference" to serious deprivations, and a prisoner alleging excessive force must show that prison officials acted with sadistic or malicious intent. (16)
In practice, then, the success or failure of a constitutional challenge to punishment often depends on an assessment of official intent. Usually, it is failure; successful constitutional challenges to punishment are very rare. To understand this result, I suggest, we must appreciate the imprecision--what has been called the "slop"--of determinations of intent. (17) When an observer or fact-finder assesses the intent of another individual or of an institution, there is nearly always room for interpretation. The punitive or penological purposes of a legislature, and even the mental state of a particular prison official, can usually be presented at the time of litigation in a way that avoids constitutional offense. It is very difficult for individual litigants to prove convincingly the subjective mental states required to establish a constitutional violation. (18) Evidentiary ambiguities allow for discretionary judgment, and courts have considerable leeway to find the requisite intent (or not) in order to reach a preferred outcome.
Thus, there is a second sense in which we are of many minds about states of minds: in any particular case, you and I may have different assessments of a third person's state of mind. This observation is not a claim of epistemic futility--it is not that "we just can't know" intentions, and so any effort to determine them is hopeless. Rather, it is a call for honesty about epistemic limitations and the opportunities they produce. In a famous philosophical study of intention, Elizabeth Anscombe argued that claims about an individual's intentions could be verified by an external observer, but only "up to a point." (19) Eventually, "there comes a point at which the skill of psychological detectives has no criteria for its own success." (20) This claim about individual intentions has even greater force when applied to institutional intentions, since the very concept of institutional intention already entails the attribution of intention to the institution. We can and do make claims about what a person, or corporation, or legislature, intended; the point here is simply that in making those claims, we rely on normative and often contested judgments. (21)
As we identify a constitutional law of punishment, then, we might also find occasion for critical reflection on its emphasis on state intentions. Such reflection is the second, and broader, purpose of this Article. Of particular interest is a growing body of philosophical literature that questions whether an actor's intentions determine the moral permissibility of his action. (22) This work in philosophy stands in stark contrast to the discussions of government motives in constitutional theory, where most scholars have accepted the premise that motives are relevant to constitutionality. (23) This Article brings the arguments from these two disciplines together in order to evaluate the role of state intentions in the law of punishment. This evaluation reveals that many of the constitutional theorists' arguments in defense of motive analysis in First or Fourteenth Amendment jurisprudence are inapplicable or unpersuasive in the context of state punishment. At the same time, many of the philosophers' reasons to deny the normative significance of intentions are especially powerful in the context of state punishment. Together, these literatures suggest some grounds for caution about motive analysis in the law of punishment. In practice, the emphasis on state intentions has given courts that are sympathetic to state agencies, and unsympathetic to prisoners, an opportunity to ensure that most constitutional challenges to punishment fail. Notwithstanding the development of a constitutional law of punishment that could serve to limit the power to punish, the courts have chosen a deferential approach and penal practices have been left relatively unregulated.
Doctrinal standards that focus more on objective factors and less on the state's intentions might ensure somewhat more meaningful regulation of punishment; this Article notes the standards that seem most ripe for reform. However, adjustments to doctrine, standing alone, are unlikely to transform the constitutional law of punishment into the strong limitation on state power that many observers might like it to be. We probably cannot eliminate all inquiries into state intentions, and it is not clear that we would want to do so. It is nonetheless useful to identify and scrutinize the doctrines of state intentions: this endeavor helps us see what these doctrines can, and cannot, accomplish. Ultimately, awareness of the limitations of motive-based constitutional doctrines may simply provide an incentive to explore other avenues of criminal justice reform.
This Article proceeds in four major parts. Part II identifies some key points of reference, distinguishing different roles that assessments of intent play in legal analysis. The aim is not to be comprehensive, but to place in the foreground some features of intent analysis that will help clarify the constitutional law of punishment. Part III turns to constitutional doctrine, tracing the three primary areas in which state intentions matter to the regulation of punishment. Part IV examines an array of explicitly normative arguments concerning whether and why intentions should matter to the legal or moral permissibility of an action, and Part V applies those arguments to the constitutional doctrines that regulate punishment.
II. POINTS OF REFERENCE
Intent standards are everywhere in the law: in criminal mens rea categories; in civil tort claims; in antidiscrimination statutes; in the tax code and many administrative regulations; in the canons of interpretation applied to statutes, contracts, and other legal texts; and of course, in several areas of constitutional doctrine. A full taxonomy of legal intent standards is a project too large for one article, but fortunately the task here is less onerous. A few general observations about the role of intention in legal analysis will set the stage for a study of the constitutional law of punishment. The aim is simply to organize the familiar, and to do so in a way that will illuminate the remainder of my analysis.
A. INTERPRETATION AND CLASSIFICATION DISTINGUISHED
There are many ways that the law uses assessments of individual or collective intention, two of which are important here. First, intention is sometimes relevant to the task of textual interpretation: the meaning of a legal text--a contract, a will, a statute, a constitutional provision--may be determined with reference to the intentions of the person or persons who produced the text. Second, intention may also be relevant to the evaluation and classification of an action. For example, the classification of killing as murder, manslaughter, or justified self-defense (or something else) requires a determination of the killer's intent.
A seminal case illustrates both roles for intention, and invokes Holmes's dog to boot. In Morissette v. United States, (24) the Supreme Court considered a federal statute that provided for fines or imprisonment for any individual who "embezzles, steals, purloins, or knowingly converts" government property. (25) Joseph Morissette, a scrap iron collector, was prosecuted and convicted under the statute after removing spent bomb casings from an "uninhabited ... and sparsely populated" area. (26) Though Morissette admitted that he took the casings, he maintained that he believed them to be abandoned property and did not intend to steal. (27) The issue, then, was whether the phrase "knowingly converts" implicitly required proof of wrongful intent.
That question required the Court to interpret the statute, and to do that, it addressed a prior question of congressional intent. In other words, the Court could not say whether Morissette's intentions were relevant to the classification of his conduct as criminal until it first consulted legislative intentions. In its search for legislative intent, the Court noted that Congress acted in the context of "the ancient requirement" that criminal punishment could be imposed only upon proof of "a culpable state of mind." (28) The Court concluded that given the historical tradition of culpability requirements, it would not assume that Congress intended to eliminate such requirements, absent clear evidence of such intent. (29) The Court read the phrase "knowingly converts" to require not only that the defendant knew he was taking property, but also that the defendant knew he was converting property. (30) That is, the Court interpreted the statute to require proof that the defendant knew the property he was taking was owned by someone else. The interpretive question--what Congress intended--was resolved in favor of an implicit requirement of proof of the defendant's culpable intent. The classificatory question--whether Morissette's action was "knowing conversion" as prohibited by statute--then required an analysis of Morissette's intent. Without proof of culpable intent, Morissette's conviction was reversed. (31)
A coda adds one more twist. Subsequent cases depicted Morissette as standing for a constitutional requirement that a criminal statute may not presume wrongful intent. (32) Such a presumption violates the due process requirements of the Fifth and Fourteenth Amendments, which require the government to prove beyond a reasonable doubt every element of the charged offense. (33) This rule means that the interpretation of a statute's mens rea provisions (which, again, may call for an analysis of legislative intent) can be determinative of the classification of that statute as constitutional or not. As a fact-finder judging a defendant might assess his intent in order to classify his acts as criminal, so a court judging a due process challenge to a statute might assess legislative intent in order to understand the meaning of the statute and classify it as constitutional.
One could think of the constitutional law of punishment as conduct rules for the legislatures that authorize punishment and the law enforcement officials that impose it. (34) As courts classify legislative or enforcement action as constitutional or not, they refer to the intentions of the public officials involved. But questions of interpretation matter as well. When confronting a constitutional challenge to legislation, courts are sometimes required to interpret legislation in order to determine its constitutionality. Keeping the distinction in mind will be useful, especially when these two roles of intent appear simultaneously.
B. INTENTIONS ARE PLURAL, NOT BINARY
Like many maxims, Holmes's quip about dogs offers brevity at the price of oversimplification. Dogs may distinguish only between kicks and stumbles, but the law makes much more nuanced distinctions. (35) When intentions are used to classify actions, it matters not only whether an action was intentional, but what the actor's specific motivation was. Put differently, the law would not only differentiate an intentional kick from an unintentional stumble, but would also distinguish among kicks on the basis of the specific intentions that motivate them. A wake-up kick intended to move a sleeping dog out of the path of an oncoming steamroller would be treated differently from a kick intended as deserved punishment for biting, chewing, or some other doggie offense; and both would be treated differently from a kick intended only to hurt, administered out of sheer cussedness. In law, there are usually more than two categories of relevant intention.
Five general mental state categories are applicable in various areas of the law. (36) From most serious or wrongful to least serious, these five categories are: purpose, knowledge or belief, recklessness, negligence, and strict liability. (37) The first four categories correspond to the categories of mens rea identified by the Model Penal Code and employed in the criminal codes of many American jurisdictions. (38) Most criminal codes also include a threshold voluntary act requirement, which might be understood as the minimum level of intent: a voluntary act is nothing more than willed physical movement. (39)
Intention can be sliced much finer still. In the criminal law, specific intent offenses impose liability only on defendants who act with some specially identified purpose: those who commit assault with intent to cause great bodily injury, for example, or those who kill for pecuniary gain. (40) As interpreted by the Court, the federal statute at issue in Morissette v. United States is a specific intent offense. It was not enough that Joseph Morissette voluntarily took the bomb casings; the statute required proof that he took them with the specific intent to deprive someone else of her property. (41) Similarly, several criminal law defenses eliminate or mitigate the criminal liability of defendants who act for particular purposes. (42) In constitutional law, certain government motivations are subjected to greater scrutiny or prohibited outright. For example, a state's "purposeful or deliberate" exclusion of Blacks from juries violates the Equal Protection Clause. (43) Any legal burden on religious practices that is motivated by religious prejudice will be subject to strict judicial scrutiny. (44) In short, a binary classification of actions as either intentional or accidental is too simplistic to capture all the ways in which intentions are legally relevant. Even among intentional actions, we can draw further distinctions based on the narrow and specific purposes of the actor. (45) As will become clear, these more nuanced categories of intention introduce evidentiary challenges as well as complex philosophical questions.
C. EVIDENTIARY CHALLENGES AND NORMATIVE JUDGMENTS
Whether intentions are invoked to interpret a text or to classify an action, we need to know what the relevant party's intentions were. This determination is difficult in any context; a person's intentions do not appear on her forehead in bold print. (46) Determining intent may be particularly difficult when the relevant parties are long deceased (like the drafters of the U.S. Constitution) or composite actors (such as legislatures or corporations). The question, then, is how to ascertain intention, and on the basis of what evidence? The assessment of intention is itself an interpretive exercise that calls for normative, and contested, judgments.
Direct evidence of intention is rare, and the predominant means of proving intention is circumstantial evidence. (47) Certain presumptions also operate to facilitate the determination of intent. For example, we tend to presume that an individual intended "the natural and probable consequences" of her actions, so that one who stabs a victim multiple times is usually thought to have intended to kill notwithstanding her protests to the contrary. (48) Though, as we know from Morissette, jurors may not be required to presume intent as a matter of law, it is permissible to instruct them that they are free to conclude, in light of the circumstantial evidence, that the defendant intended the natural and probable consequences of her actions. (49)
For the most part, fact-finders appear comfortable making mental state determinations for individual defendants, even with only circumstantial evidence. (50) Indeed, they may trust their own judgments about what a defendant intended more than they trust the defendant's own direct statements of intent. The defendant obviously has an incentive to deny that she possessed any mental state that is an element of the offense. Jurors lack similar incentives to misrepresent mental states, but even well-intentioned jurors may be poorly equipped to read the defendant's mind. Empirical research on juries indicates that they bring considerable background knowledge into their deliberative processes, and that they fit together the factual evidence presented at trial into a narrative that makes sense given their background knowledge. (51) The opacity of the human mind means that fact-finders are typically making guesses about an individual's mental state, but this is a necessity that the criminal law accepts with little fanfare.
The point here is simply that courts and juries regularly make determinations of individuals' intentions without too much handwringing; I do not claim that these determinations are "accurate." Indeed, I share Christopher Slobogin's view that "[e]xcept at the margin, assessing the relative 'accuracy' of such normative judgments [mental state determinations] is an oxymoronic exercise." (52) The claim "she intended to be cruel" is simply not the same sort of claim as "she slapped him." Michael Moore has recently put the point more colloquially: a judgment that an individual acted with a particular intention is one that "inevitably will have some slop in it." (53) It seems likely that jurors perceive the inevitable moral judgment in assessments of intention, and they may be more comfortable determining intent for precisely that reason. Scrutinizing the mind and discovering its secrets is a sophisticated task for experts, but attributing fault is something every layman knows how to do.
The normative, discretionary nature of intent assessments means that intent standards offer points of flexibility in the law. When a decisionmaker has a strong intuition in favor of a particular outcome, determinations of intent can serve as the mechanism by which the preferred outcome is achieved. As an illustration, consider a rare recording of an actual jury deliberation in a state criminal trial. (54) The defendant had been charged under Wisconsin's very simple weapon possession statute; the prosecution needed to establish only that the defendant had a prior felony conviction, possessed a gun, and knew that he possessed the gun. (55) The jurors initially agreed that the elements had been "technically" proven, but expressed reluctance to convict: the defendant was sympathetic, and the crime was not vicious or harmful. (56) To "find room in the law," in the words of one juror, the jury eventually focused on the statute's mens rea requirement that the defendant "knew" he possessed a weapon. (57) Aware of the defendant's considerable mental disabilities, the jury eventually construed "to know" in very narrow terms and voted to acquit. (58) The jurors appear to have reasoned backward from an intuitively just outcome to the necessary mental state determination that would dictate that outcome.
Importantly for constitutional law, intent standards are no less--and possibly more--flexible when collective intention is at stake. Determinations of collective intention are always constructions: the court or fact-finder may rely on direct or circumstantial evidence when available, but the very notion of collective intention requires some degree of extrapolation from the facts. (59) Put differently, an assessment of legislative motive is "a construct synthesized from the text, context, operation, and public meaning of the statute." (60) The assessment of a collective entity's intentions, like the assessment of individual intention, always leaves room for normative judgment. (61) Indeed, many controversies over collective intention in legal analysis seem motivated less by a philosophical desire to get our conceptual descriptions "right" than by disputes over which intentions should be attributed to particular institutions. As we examine constitutional doctrine in more detail, we will see that cases often turn on an assessment of government intention that the given court easily could have made differently.
Much more could be said about the role of intentions in legal analysis. For purposes of this Article, however, these general observations will suffice. First, intentions may be relevant to the interpretation of legal texts, or they may be relevant to the classification of conduct. Some cases require both types of intent analysis. Second, the dog's distinction between kicks and stumbles, if taken literally, is too...
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