Thought Crime - draft for England - Copy - Faculty of Law · deported.”8 Although extreme, ......

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THOUGHT CRIME

Gabriel S. Mendlow*

“[T]o punish bare intention ‘would be utterly intolerable: all mankind would be criminals, and most of their lives would be passed in trying and punishing each other. . . .’”

– H.L.A. Hart, quoting James Fitzjames Stephen1

It is a core principle of criminal jurisprudence that people may be punished only for their acts—never for their mere intentions. What justifies this restriction? A venerable answer is the one that Hart and Stephen offer in the epigraph: without the act requirement, criminal law inevitably would be oppressive.

This defense of the act requirement is facile and probably unsound. To be sure, life would be intolerable under a regime that punished every improper mental state—every sadistic fantasy, evil desire, and hateful belief. Life also would be intolerable under a regime that punished every improper act—every unkindness and petty betrayal. That is an excellent reason not to punish every improper act. It is a terrible reason not to punish any act. In punishing acts, regimes can discriminate between the grave and the paltry. A regime that elected to punish mental states could exercise the same discretion, punishing only the rare mental state that is a dangerous, culpable wrong. A likely candidate would be the firm intention to engage in lethal terrorism. Punishing people for terroristic intentions would not come close to making “all mankind . . . criminals.”2 Even if many possess murderous fantasies and desires, only a few possess resolute murderous intentions. It is one thing for you to want to engage in terrorism, or to think that terrorism has something to be said for it. It is another thing entirely—a far rarer thing—for you to intend to engage in terrorism, to make terrorism your goal. To make terrorism your goal is to embrace a distinctive and unusual set of rational commitments. It is to commit to watching for an opportunity to perform an act of terrorism, to seizing such an opportunity when practicable, and to refraining from conduct that would make performance too difficult.3

Perhaps Hart and Stephen assume that no regime could reliably discern the rare mental state that is a dangerous, culpable wrong from the surrounding sea of mere

* Assistant Professor of Law and of Philosophy, University of Michigan. 1 H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 127 (2d ed. 2008) (quoting 2 JAMES FITZJAMES STEPHEN, A HISTORY OF THE

CRIMINAL LAW OF ENGLAND 78 (1883)). 2 _ 3 I refer any reader who doubts the robustness of the distinction between intention and desire to the large literature on the subject.

See Gideon Yaffe, Criminal Attempts, 124 YALE L.J. 92, 106 n.23 (2014) (citing sources on intention).


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fantasies and desires. They may even assume that no mental state of any kind—including a lethal intention—could be a dangerous, culpable wrong. Is this assumption correct? Is no mental state a dangerous, culpable wrong? If no mental state is dangerous, it is irrational for me to fear you simply because of your intentions; your intention to kill me poses no risk that you actually will. This is difficult to accept. There would be little point to forming an intention if intentions did not generally increase the likelihood of action. It is true that intentions can be rescinded, decisions rethought, and plans abandoned, but none of this entails that intending to do something never increases the likelihood you will do it.4 The effect and purpose of forming an intention is to place yourself under rational and psychological pressure to follow through. If this pressure makes it more likely you will act—and how could it not?—forming a lethal intention creates a risk of death.5 If you are a competent person with the means to kill, the danger posed by your lethal intention could be at least as great as that posed by many risky activities we seldom think twice about criminalizing. I therefore doubt that the act requirement draws its justification from the harm principle, which forbids the state to punish anything but that which causes or risks injury to others. Equally difficult to accept is that intentions can never be culpable wrongs. If intentions are not culpable wrongs, I may not resent you for intending to kill me. I may not demand that you abandon your intention, or even demand that you apologize for it. If you tender an apology, I must refuse it on the ground that there is nothing for me to forgive. Although I may view your intention as a moral failing—a character flaw, perhaps—I may not view it as a moral transgression. I may not view it as a moral transgression even if you formed it voluntarily, as some (perhaps most?) intentions are formed. I may think the worse of you on account of your intention, but I may not say, “How dare you intend to kill me?” If you have done no wrong, I lack the standing to condemn you.

Even if, contrary to what I have said, malign intentions really are incapable of being culpable wrongs, I doubt that this controversial proposition is the foundation of the criminal law’s least controversial axiom. Our legal tradition’s attitude toward punishing thought seems rather like Justice Oliver Wendell Holmes’ attitude toward punishing speech. “Persecution for the expression of opinions seems to me perfectly logical,” writes Justice Holmes.6 “To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.”7 As Justice Holmes implies, our legal tradition forbids punishing speech not because all speech is harmless but despite the fact that much speech is harmful. That tradition strikes me as taking a similar view of thought: it forbids punishing thought not

4 Anyone who doubts … 5 Douglas N. Husak, Does Criminal Liability Require an Act?, in THE PHILOSOPHY OF CRIMINAL LAW: SELECTED ESSAYS 17,

49 (2010) (“[F]irm intentions impermissibly increase the risk of a subsequent harm.”). 6 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 7 Id.


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because all thought is harmless and innocent but despite the fact that some thought is harmful and blameworthy. So understood, the act requirement does not exist to prevent the state from punishing something paltry and morally inconsequential any more than the First Amendment to the United States Constitution exists to prevent the state from punishing harmless blather. Just as a perennial temptation to curb dangerous speech besets all societies, a powerful and imperfectly bridled impulse to condemn and sanction dangerous and blameworthy thought pervades Anglophone criminal law and the public discourse that surrounds it. No less than a former Speaker of the U.S. House of Representatives declared after a recent terrorist attack that “we should frankly test every person here who is of a Muslim background, and if they believe in Sharia, they should be deported.”8 Although extreme, this declaration does not propose as radical an expansion of the law as an uninformed bystander might suppose. Commentators often complain that the antiterrorism laws already in force throughout the Anglophone world come “dangerously close” to punishing thought, in that what these laws really mean to punish is an offender’s malevolent state of mind. This complaint evokes an old grievance about hate crime penalty-enhancement statutes: that they impermissibly impose “extra” punishment for an offender’s hateful thoughts or bad character. Something that no commentator seems to have noticed, but which I will argue below, is that certain laws actually may violate the act requirement outright, by pretending to punish actions while covertly punishing unexecuted intentions. I will attend in particular to a pair of British antiterrorism statutes that dispense with an act altogether—but surreptitiously. These statutes use a heretofore unexamined legislative technique: they criminalize an “act” that really is no act at all but instead is a morally neutral background condition. These laws give the lie to Lord Mansfield’s eighteenth century declaration, repeated in the twentieth by Glanville Williams, that “[so] long as an act rests in bare intention it is not punishable by our laws.”9

The sprawling reach of Anglophone criminal law and the potent impulse toward further expansion call on us to examine the act requirement anew. I begin the essay by discussing the anti-terror and hate-crime legislation often accused of encroaching on the act requirement. After clarifying the nature of these accusations, I turn to the three principles of justice that appear to be the act requirement’s leading rationales: autonomy, evidentiary adequacy, and freedom of mind. All three of these principles face what seem to be fatal objections. As I argue, we can ground the act requirement in the third—freedom of mind—but only if we are willing to rethink the relationship between actus reus and mens rea and to adopt an unorthodox conception of criminal wrongs. This conception yields the consequence that we must base an offender’s punishment on the gravity of his acts, not on the gravity of the malign intentions that lie behind those acts. This consequence is of widespread practical significance in a legal system like ours,

8 Alan Rappeport, Newt Gingrich Echoes Donald Trump With Remarks on Muslims and Terrorism, N.Y. TIMES, July 15, 2016. 9 Glanville Williams, CRIMINAL LAW: THE GENERAL PART __ (2d ed. 1961).


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which makes a habit of criminalizing certain acts on the ground that they are a reliable proxy for certain undesirable states of mind.

A Principle under Siege

The infamous Treason Act of 1351 violates the act requirement in the plainest way possible, deeming a person guilty of treason who merely “compasses or imagines the death” of the king.10 If a contemporary western code contains a facially act-free statute like the Treason Act,11 commentators seemingly have overlooked it. Not out of indifference to thought crime, however. Critics of the fight against terrorism have railed against antiterrorism legislation that allegedly comes “dangerously close” to punishing thought, while others have objected with similar vehemence to hate crime penalty-enhancement statutes that allegedly punish offenders for their prejudiced beliefs and wicked traits of character. To appreciate the force and limits of these objections, we will need to differentiate between strong and weak conceptions of the act requirement. As we will see, most of the antiterrorism and hate crime laws accused of punishing thought appear to do so only when viewed in the light of the stronger and more controversial of these conceptions—a conception of the act requirement I will later argue we have good reason to adopt.

I begin with the broader set of anti-terrorism statutes currently in force throughout the leading Anglophone jurisdictions. These super-inchoate statutes criminalize conduct broadly related to terrorism but too incipient or insubstantial to be punishable under traditional principles of attempt or complicity. Such statutes in Canada and the United States serve primarily to expand the scope of accomplice liability. Section 83.19 of the Canadian Criminal Code imposes liability on anyone “who knowingly facilitates a terrorist activity,” while §§ 2239A and 2239B of Title 18 of the United States Code criminalize the provision of “material support” to terrorists and terrorist organizations, including support “seemingly [for] benign purposes,” such as instruction in how to conduct peaceful negotiations.12 Super-inchoate anti-terrorism statutes in Australia and the United Kingdom serve primarily to expand the scope of attempt liability. Section 101.6(1) of the Australian Criminal Code provides that “[a] person commits an offence if the person does any act in preparation for, or planning, a terrorist act.” Section 5(1) of the United Kingdom’s Terrorism Act of 2006 similarly provides that “[a] person commits an offence if, with the intention of . . . committing acts of terrorism . . . he engages in any conduct in preparation for giving effect to his intention.” Other super-inchoate anti-terrorism statutes in the United Kingdom push even further beyond the conventional

10 25 Edw. 3, stat. 5, c. 2. 11 A.P. Simester reports that an act-free formulation of the treason offense exists in Singapore. See A.P. Simester, Prophylactic

Crimes, in SEEKING SECURITY: PRE-EMPTING THE COMMISSION OF CRIMINAL HARMS 64 n.22 (G.R. Sullivan & Ian Dennis eds., 2012) (citing Section 121A of the Penal Code of Singapore, which provides: “Whoever compasses, imagines, invents, devises, or intends the death of or hurt to or imprisonment or restraint of the President, shall be punished with death, or with imprisonment for life and shall, if he is not sentenced to death, also be liable to fine.”).

12 Holder v. Humanitarian Law Project, 561 U.S. 1, 36 (2010).


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bounds of attempt and accomplice liability by creating unusually broad offenses of possession. For example, Section 58(1) of the United Kingdom’s Terrorism Act of 2000 creates an offense of “collecting . . . information of a kind likely to be useful to a person committing or preparing an act of terrorism, or . . . possessing a document or record containing information of that kind.” Section 58 generously grants a defense to anyone who can “prove that he had a reasonable excuse for his action or possession.”13

It is easy to see why these and similar statutes often are said to come “dangerously close” to criminalizing pure thought.14 These statutes leave one with the distinct impression that the acts they nominally proscribe are not the true wrongs for which they impose punishment. Super-inchoate statutes leave one with this impression because the acts they nominally proscribe can be utterly trivial. Consider Section 5(1) of the United Kingdom’s Terrorism Act of 2006, which criminalizes “engaging in any conduct in preparation for giving effect to [a terroristic] intention.” As A.P. Simester observes, Section 5(1) seems even “to proscribe acts of cereal eating . . . when done as part of a fitness programme in preparation for committing a terrorist act.”15 Section 58(1) of the 2000 Act, which criminalizes collecting information “useful” to terrorists, creates an offense of comparable breadth. “Almost anything that is of general use in carrying out our day-to-day activities is also useful to terrorists,” note Jacqueline Hodgson and Victor Tadros. “Terrorists might need clean clothes, so washing machine instructions are useful to terrorists. Terrorists might need to meet each other, so instructions about public transport are useful to terrorists.”16

Because the penalties associated with these super-inchoate statutes are so severe,17 one could be forgiven for suspecting that the underlying wrongs condemned and

13 Terrorism Act, 2000, pt. 6, § 58(3) (U.K.). 14 KENT ROACH, THE 9/11 EFFECT: COMPARATIVE COUNTER-TERRORISM 114–15 (2011) (“Many new terrorism offenses enacted

after 9/11 pushed the envelope of inchoate liability and came dangerously close to creating status offenses, thought crimes, and guilt by association.”); see Kent Roach, Terrorism, in THE OXFORD HANDBOOK OF CRIMINAL LAW 812, 814 (Markus D. Dubber & Tatjana Hörnle eds., 2014) (same); Jacqueline Hodgson & Victor Tadros, How to Make a Terrorist Out of Nothing, 72 MOD. L. REV. 984, 989 (noting that Section 58(1) (collection of records) of the Terrorism Act of 2000 brings us “perilously close to the chilling idea of a thought crime,” and suggesting that “the offence is really designed . . . to capture people who are suspected to have a terrorist intent”); Andrew Ashworth, Criminal Law, Human Rights and Preventative Justice, in THE REDIRECTION OF CRIMINALISATION AND THE

FUTURES OF CRIMINAL LAW 88–89 (B. McSherry, A. Norrie, & S. Bronitt eds., 2009); Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 CAL. L. REV. 301, 351 (2009) (claiming that the “Lackawanna Six,” a group of Yemeni-Americans convicted of rendering material support to Al Qaeda, were “sentence[ed] . . . to long prison sentences for what was basically a thought crime”); A Nation at War: The Buffalo Case, N.Y. TIMES, Apr. 9, 2003, at _ (describing the case of the “Lackawanna Six”); A. JONES ET AL., BLACKSTONE’S GUIDE TO THE TERRORISM ACT 2006 34 (2006) (“If no other criminal offence is available to try a terrorist suspect, the use of this offence [namely, Section 5 (Preparation of Terrorist Acts) of the Terrorism Act of 2006] would surely imply that the person was being tried principally for having criminal thoughts, the actus reus of any offence being non-specific and very easy to prove.”).

15 Simester, Prophylactic Crimes, supra note 11, at 71. 16 Hodgson & Tadros, supra note 14, at 985. 17 Terrorism Act, 2006, pt. 1, § 5(3) (U.K.) (person guilty of preparing for terrorist act liable to imprisonment for life); Criminal

Code, § 101.6(1) (Austl.) (same); 18 U.S.C. § 2239A (person guilty of providing material support to terrorists “shall be fined . . . , imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life”); 18 U.S.C. § 2239B (person guilty of providing material support to foreign terrorist organization “shall be fined . . . or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life”); Criminal Code, R.S.C., c. C–46, § 83.19(1) (1985) (Can.) (“Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”); Terrorism Act, 2000, pt. 6, § 57(4) (U.K.) (violation of Section 57(1) (possession for terrorist purposes) punishable by up to fifteen years in prison); Terrorism Act, 2000, pt. 6, § 58(4) (U.K.) (violation of Section 58(1) (collection of information useful to terrorists) punishable by up to ten years in prison).


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sanctioned by these statutes are not the potentially trifling acts that the statutes nominally proscribe but the malign intentions that lie behind those acts. Under Section 5(1) of the 2006 Act, for example, a person can go to prison for life “if, with the intention of . . . committing acts of terrorism . . . he engages in any conduct in preparation for giving effect to his intention.” What is the underlying wrong that Section 5(1) condemns and sanctions so severely? Is it the potentially trifling act of preparation? Or is it instead the terroristic intention to which that act gives effect? One may find it impossible to shake the suspicion that the wrong punished by Section 5(1) is really the offender’s terroristic intention. Alun Jones and co-authors comment that, “[i]f no other criminal offence is available to try a terrorist suspect, the use of [Section 5] would surely imply that the person was being tried principally for having criminal thoughts, the actus reus of any offence being non-specific and very easy to prove.”18 Hodgson and Tadros express a similar concern about the information-collection offense created by Section 58(1) of the 2000 Act. As they write, “the offence is really designed . . . to capture people who are suspected to have a terrorist intent.”19

Given their reservations, why do commentators say only that super-inchoate statutes come “close” to punishing thought, rather than that they violate the act requirement outright? I suspect they say this because they are torn between two conceptions of the act requirement: a stronger, substantive conception of the act requirement which super-inchoate statutes arguably violate, and a weaker, conditional conception of the act requirement which such statutes unquestionably satisfy. The substantive conception demands that the underlying wrong condemned and sanctioned by a statute be an act or omission, as opposed to an intention or a status or a trait of character. The conditional conception demands only that an act or omission be among the conditions of liability, regardless of the nature of the underlying wrong that the statute aims to condemn and sanction.

To appreciate the distinction between substantive and conditional conceptions of the act requirement, we must move past the notion that the wrong a statute punishes is the action picked out by the statute’s elements. This notion may seem to follow ineluctably from certain basic and unremarkable features of the criminal law. A person can be punished under a statute only if he has violated it; and a person has violated a statute only if he has satisfied its elements; thus, a person can be punished under some statute only if he has satisfied its elements. From this banal truth it seems to follow that, when a person is punished for violating a statute, he is punished for satisfying its elements; it seems to follow, in other words, that the wrong for which a statute imposes punishment is the action or state of affairs picked out by the statute’s elements. But this inference is a fallacy. In many instances, not all of a statute’s elements help specify the underlying

18 A. JONES ET AL., supra note 14, at 34. 19 Hodgson & Tadros, supra note 14, at 989.


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wrong for which the statute imposes punishment; some elements merely specify conditions on which an offender may be punished for the wrong. Courts of all jurisdictions accept this truth, whether they realize it or not.

The most obvious and least interesting example of an element that makes no substantive contribution to the wrong a statute punishes is the so-called “non-material” element. The Model Penal Code defines a “material element of an offense” as “an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct. . . .”20 This definition implies that an element is non-material if it relates exclusively to a matter unconnected either with the harm or evil sought to be prevented by the statute or with the existence of a justification or excuse. Non-material elements evidently make no substantive contribution to the wrongs criminalized by the statutes in which they appear. Suppose a defendant is convicted of sexually penetrating a drunk person in South Dakota, where a statute21 defines such conduct as rape and provides that the prosecution of a defendant charged with sexually penetrating a “victim incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent . . . may be commenced at any time . . . within seven years of the commission of the crime.”22 If the defendant asks what he is being punished for, we will say, simply, “for raping a drunk person.” We will not say, “for raping a drunk person within the past seven years.” The timing of the defendant’s rape is not part of what he is being punished or held accountable for. The timing is not part of the object of punishment. The same seems equally true regarding other non-material elements, such as those that relate to jurisdiction and venue. Like statutes of limitations, these non-material elements seemingly make no substantive contribution to the wrongs criminalized by the statutes in which they appear. For example, it is a federal crime, under § 922(g) of Title 18 of the United States Code, for a convicted felon to possess a gun if that gun or its components once “affect[ed]” interstate commerce.23 The interstate nexus makes no substantive contribution to the wrong punished by § 922(g): as the Fourth Circuit explained in United States v. Blount,24 the “commerce element merely provides a basis

for federal jurisdiction, rather than separate[ing] innocent from criminal conduct.”25 The wrong punished by § 922(g) is <possessing a gun>, not <possessing a gun that affected interstate commerce>.

Although non-material elements do not help define the objects of punishment, they do specify conditions of punishment. In South Dakota, a defendant can be punished

20 MODEL PENAL CODE § 1.13(10) (1962). 21 S.D. CODIFIED LAWS § 22-22-1 (2015). 22 Id. 23 See 18 U.S.C. 922(g). 24 111 F.3d 129 (4th Cir. 1997). 25 Id. at 129.


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for raping a drunk person only on the condition that he committed it within the past seven years; under federal law, a felon can be punished for possessing a gun only on the condition that the gun affected interstate commerce. Typically, a multitude of other factors establish further conditions of punishment. Most such factors, like the requirement of a fair trial, are not encoded as offense elements. But some are. As we have seen, factors that establish federal jurisdiction sometimes appear as elements requiring a connection to interstate commerce. Just because such jurisdictional factors appear as elements doesn’t mean they help define what an offender is being punished for. A defendant convicted of illegally possessing a gun isn’t being punished for the fact that her gun traveled in interstate commerce any more than she is being punished for the fact that she received a fair trial. Like a fair trial, an interstate nexus is a mere condition of punishment, not its object. That evidently is the reason why the law may punish a defendant for illegally possessing a gun even when she was completely oblivious to the interstate nexus.26 She is punished for her illegal gun possession and for nothing more.

Even a material element—an element connected either with the harm or evil sought to be prevented by the law defining an offense or with the existence of a justification or excuse27—might make no substantive contribution to the wrong a statute

criminalizes.28 For example, rather than helping to define the wrong a statute criminalizes, a material element instead might serve to guarantee evidence of the wrong, a fact particularly germane to our discussion of super-inchoate offenses. The offenses of attempt and treason both have been the subject of particular controversy regarding whether the act element denotes a component of the underlying wrong or instead a condition establishing when an offender may be punished for that wrong. The long-running debate between “objectivist” and “subjectivist” theories of attempt liability is really a dispute about whether the conduct element in attempt is substantive or evidentiary (and thus conditional).29 “Subjectivists” say the conduct element is conditional: the underlying wrong is the defendant’s intention to commit the target offense, the conduct element serving merely as a condition of punishment meant to verify the intention’s existence or firmness.30 “Objectivists” say the conduct element is substantive: the attempter’s conduct itself is the underlying wrong, a wrong that derives

26 Id. (“Because a commerce element merely provides a basis for federal jurisdiction, rather than separates innocent from

criminal conduct, it ordinarily has no mens rea component. . . . Indeed, . . . the ‘commerce’ element of 18 U.S.C. § 922(g) [(criminalizing possession of a firearm by a convicted felon)] is jurisdictional only and has no mens rea component.”).

27 MODEL PENAL CODE § 1.13(10) (1962). 28 “Perhaps the wrong in a penal statute is only a subset of its material elements,” suggests Douglas Husak. Douglas N. Husak,

IGNORANCE OF LAW: A PHILOSOPHICAL INQUIRY _ (2016). Husak does not elaborate on this provocative suggestion. 29 See generally Stephen P. Garvey, Are Attempts Like Treason?, 14 NEW CRIM. L. REV. 173, 178–79 nn.12 & 13 (2011)

(collecting references to objective and subjective theories of attempt liability). 30 See The Queen v. Ancio, [1984] 1 S.C.R. 225, 247 (“[B]ecause the crime of attempt may be complete without the actual

commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.”); Regina v. Roberts, Dears. 539, 25 L.J.M.C. 17 (“The guilt [in attempt] consists in the intent evidenced by the overt act.”); see also Morris, supra note Error! Bookmark not defined., at 354–55 n.14 (collecting authorities for the proposition that attempt liability punishes defendants for thought alone).


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its wrongfulness from the criminal intention with which it is performed.31 Across jurisdictions, there may be a general trend in favor of viewing the conduct element as evidentiary and thus merely conditional.32 An opposite trend marks the history of treason.

Early English law conceived treason as a crime of pure psychological disloyalty,33 but wariness of the potential for prosecutorial abuse led the drafters of the United States constitution to insist that the offense of treason be defined to require outward conduct.34 The Supreme Court later came to see such outward conduct as an essential ingredient of the treasonous wrong, rather than as a mere evidentiary condition.35

The conditional act requirement demands merely that every statute include an act element, either conditional or substantive, whereas the substantive act requirement forbids a statute to treat a mere intention as the underlying wrong for which condemnation and sanction is imposed. An offense can satisfy the conditional act requirement while violating the substantive one if the offense has the following two features: it includes an act as a nominal element but really condemns and sanctions an offender for his intention. The suggestion that an offense has these two features is neither novel nor especially controversial. Glanville Williams attributes these features to the traditional offense of attempt. “[I]n attempt,” he writes, “the [guilty] party is really punished for his intention, the act being required as evidence of a firm intention.”36 This view of attempt has deep roots. Writing in 1903, J.H. Beale noted that “[t]he earlier cases spoke of punishment for attempt as if it were a punishment of the criminal intent whenever evidenced by an act.”37 This view of attempt enjoys modern currency as well. It has been endorsed by the Supreme Court of Canada, for example, which has said that “it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.”38 This view of attempt also derives support from the Model Penal Code, which deems an actor’s conduct sufficient for an attempt only when the conduct is “strongly corroborative of the actor’s criminal purpose.”39 It probably is no accident that the Model Penal Code endorses nothing stronger than a conditional act requirement, demanding only that an offender’s “liability [be] based on conduct that includes a

31 See Garvey, supra note 29, at 178–79 n.13. 32 See GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 169 (1978) (describing a “[judicial] sweep by the subjectivist

position”). DR: Give your cite to Fletcher, might be worth explaining somewhere how you differ from him or go beyond. 33 See Cramer v. United States, 325 U.S. 1, 27–28 (1945). 34 See id. at 13–27; U.S. CONST. art. III, § 3, cl. 1 (“Treason against the United States, shall consist only in levying War against

them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”).

35 See Cramer, 325 U.S. at 29 (“Lord Reading explained [the giving of aid and comfort], as we think one must, in terms of an ‘act.’ It is not easy, if indeed possible, to think of a way in which ‘aid and comfort’ can be ‘given’ to an enemy except by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation.”). But see Garvey, supra note 29, at 205 (“[A]n actor commits the crime of treason when, having given his loyalty or allegiance to an enemy, he forms the intent to give aid and comfort to that enemy, and thus the intent to harm the United States, because he has given his loyalty to the enemy. Nothing more. He need not actually do anything in furtherance of that intent.”).

36 Glanville Williams, TEXTBOOK OF CRIMINAL LAW 631 (2d ed. 1983). 37 J.H. Beale, Criminal Attempts, 16 HARV. L. REV. 491, 494 (1903). 38 Regina v. Ancio [1984] 1 SCR 225, 247. 39 MODEL PENAL CODE § 5.01(2) (1962)


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voluntary act or the omission to perform an act of which he is physically capable.”40 Like the offense of attempt, the super-inchoate offenses that trouble commentators satisfy the conditional the act requirement. To paraphrase the Model Penal Code, these statutes plainly base an offender’s liability on conduct that includes an act. I suggest that commentators’ persistent discomfort with these statutes springs from sympathy for a substantive act requirement, one that forbids a statute to punish an offender for his thoughts, even if such punishment is imposed only on the condition of an act.

Sympathy for a substantive act requirement also seems to underlie a classic objection to hate crime penalty-enhancement provisions like the one at issue in Wisconsin v. Mitchell, which increased the maximum penalty for assault from two years to seven “whenever the defendant ‘[i]ntentionally select[ed] the [victim] . . . because of [his] race, religion, color, disability, sexual orientation, national origin or ancestry.’”41 Many commentators and even some courts claim that such enhancement provisions impermissibly punish offenders for their thoughts or character. James Jacobs and Kimberly Potter state the case succinctly:

Generic criminal laws already punish injurious conduct; so recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra punishment for values, beliefs, and opinions . . . . If the purpose of hate crime laws is to punish more severely offenders who are motivated by prejudices, is that not equivalent to punishing hate speech or hate thought?42

The charge is not that enhancement provisions empower the state to impose punishment in the absence of an act. The charge is rather that enhancement provisions empower the state to condemn and sanction an offender for something in addition to an act: namely, a hateful state of mind. To voice this charge is to invoke the substantive act requirement, which demands that punishment be imposed only for acts and omissions, “extra punishment” for thoughts or character being impermissible. If hate crime offenders are punished both for their “values, beliefs, and opinions” and for their “injurious conduct,” then they are punished in violation of the substantive act requirement.

Many people with whom I have discussed these matters claim not to care whether any criminal offense targets thought as long as none fails to include an act or omission among the conditions of liability. These people evidently do not accept the substantive act requirement. But they should. As I will argue, the substantive act requirement follows from the rationale that I will defend: the right to freedom of mind. The competitors—

40 Id. § 2.01(1). 41 508 U.S. 476, 480 (1993) (quoting Wis. Stat. § 939.645(1)(b)). 42 James B. Jacobs & Kimberly Potter, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 121 (1998).


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evidentiary adequacy and autonomy—don’t ground either conception of the act requirement.

In Search of Foundations

I turn now to three principles of justice that appear to be the act requirement’s leading rationales: autonomy, evidentiary adequacy, and freedom of mind. As I will argue, the first and second principles fail as rationales for the act requirement because they do not grant unexecuted intentions categorical impunity. The act requirement forbids punishing all unexecuted intentions, while these principles at most forbid punishing some. The third—freedom of mind—grants intentions categorical impunity, but does so at what seems far too high a cost: if unexecuted intentions are categorically off limits to the criminal law, it may be impossible to escape the conclusion that all intentions are off limits to the criminal law, including intentions that are accompanied by actions done to execute them. This conclusion in turn seems to entail the absurd consequence that no one may be punished for a crime that includes a culpable mental state. To solve this problem, we will need to rethink the relationship between actus reus and mens rea and to adopt an unorthodox conception of criminal wrongs.

(i) Autonomy

At the vanguard of recent efforts to justify the act requirement is R.A. Duff, who seeks to ground the requirement in the value of autonomy. As Duff asserts in a passage from Answering for Crime,

[i]f the state is to treat its citizens as responsible agents who can be guided (who can guide themselves) by reasons, it should be slow to coerce them on the ground that they are likely to commit a wrong if not thus coerced, since that is to treat them as if they will not be guided by the reasons that should dissuade them from such wrongdoing. This is most obviously true when the grounds for that prediction of wrongdoing do not include a present intention to do wrong, as when people are diagnosed as ‘dangerous’ on the basis of other indicators; but it is also true when the prediction is grounded on the agent’s present criminal intention. It is one thing for a fellow citizen or a police officer to warn him that he should abandon his plan: that is still to treat him as a responsible agent who can be moved by the reason for not committing the wrong of which we remind him. It is quite another thing to hold him guilty of a criminal offence at so early a stage in his intended criminal enterprise: that is to treat him as someone who will not be dissuaded, or dissuade himself, from carrying the wrong through. We cannot wait until he has completed his enterprise:


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but we should wait until he has more definitively constituted himself as a wrongdoer by coming closer to completing his plan.43

Here, Duff draws on other work in which he argues that respect for autonomy precludes punishing anyone who is not yet “in the process of committing” a crime—a category of persons that includes not only those who merely intend to commit a crime but also those who have taken preparatory steps toward the commission of a crime but have not yet “crossed the Rubicon.”44 “Only when an intending criminal passes beyond the stage of ‘mere preparation’ and embarks on the commission of the crime itself,” Duff writes, “can we bring the coercive powers of the criminal law to bear on her without infringing her status as a responsible agent.”45 Before that point, Duff says, “the law should leave intending criminals a locus poenitentiae: the chance to decide for themselves to abandon their criminal enterprises.”46

In support of these various assertions, Duff offers a tight argument that I will quote in full:

To respect someone’s freedom as a responsible agent is to see and treat her as someone who is in principle susceptible to rational persuasion; this requires that we seek to modify her conduct only by offering her good reasons to modify if for herself. Suppose we know that someone intends to commit, or is preparing to commit or taking initial steps towards committing, a substantive crime. If we have the moral standing to intervene (which we might claim when what he intends is a crime), we can properly do so by trying to dissuade him from continuing in this criminal enterprise: by appealing to the moral reasons for which he ought to obey the law; or perhaps by reminding him of the prudential reasons for desistance provided by the threat of punishment for the substantive crime. In trying thus to persuade him, we treat him as someone who could be persuaded to desist for himself, and who still has time (a locus poenitentiae) to desist. We should treat him thus, not necessarily because we think that we might in fact persuade him to desist (we might harbor no real hope of this), but because this is what it is to respect him as a responsible agent. If instead we intervene forcibly to prevent him advancing his criminal enterprise, we cease to treat him as a responsible agent: we deny him the freedom to decide for himself whether to desist; we pre-empt his future actions by force, and thus infringe his autonomy. If the law is to treat its citizens as responsible agents, it must leave them free

43 R.A. DUFF, ANSWERING FOR CRIME 104–105 (2007). 44 R.A. DUFF, CRIMINAL ATTEMPTS 390 (1997) (quoting _). 45 Id. 46 Id. at 387.


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to decide for themselves, not merely whether to embark on a criminal enterprise, but whether to continue with it.47

As I understand Duff’s argument, it has the following structure:

(1) If A merely intends to commit a crime or if A is preparing to commit a crime but hasn’t yet begun to commit it, we must (as always) treat A in a way that respects his autonomy.

(2) To treat A in a way that respects his autonomy is to treat him as a responsible agent, someone who has the capacity to change his mind and guide his conduct by the right reasons.

(3) If we are to treat A as a responsible agent (someone who has the capacity to change his mind and guide his conduct by the right reasons), then we may remonstrate with him and hope that he will change his mind, but we may not intervene forcibly—either by coercing him (in order to induce him to change his mind) or by incapacitating him (in the belief that he will not change his mind).

(4) To criminalize A’s intention or preparatory conduct is to threaten him with punishment, which is to coerce him. To punish A for his intention or preparatory conduct is to incapacitate him.

(5) We may not punish or threaten to punish someone who merely intends to commit a crime or is preparing to commit a crime but hasn’t yet begun to commit it. [From 1–4]

(6) Therefore, we may not criminalize or punish unexecuted intentions. [From 4 and 5]

A virtue of this argument is that it not only purports to vindicate two seemingly inconsistent intuitions about the wrongness of criminalizing mere intent but also attempts to explain why these two intuitions in fact are compatible. The first intuition is that the wrongness of criminalizing mere intent springs from the same source as the wrongness of criminalizing preparatory conduct. Duff tells us that both forms of criminalization are wrong for the same reason: they deprive would-be criminals of a locus poenitentiae, a fair chance to change their minds. Duff’s argument also vindicates a second intuition seemingly inconsistent with the first: that while there is no categorical bar on criminalizing preparatory conduct (the law may criminalize such conduct when the prospective crime is unusually dangerous or unusually difficult to detect), the law must

47 Id. at 388–89.


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never criminalize mere intent: that is prohibited absolutely.48 Duff’s argument supplies what might seem like a straightforward explanation of this asymmetry. The ban on punishing mere intent is categorical because criminalizing mere intent utterly destroys an intending criminal’s locus poenitentiae. The ban on criminalizing preparatory conduct is non-categorical because criminalizing preparation does not eliminate an intending criminal’s opportunity to desist; it merely diminishes it.

Despite these virtues, Duff’s argument has two significant shortcomings. By highlighting them, I hope to illustrate the challenges that any theorist must surmount who hopes to ground the act requirement in a conception of autonomy. The first shortcoming is that Duff fails to articulate and defend a plausible conception of autonomy capable of vindicating the following claim: respecting an ill-intentioned person’s freedom as a responsible agent always means giving him a chance to change his mind. Duff says that we fail to respect a person’s autonomy if we “hold him guilty of a criminal offence at [too] early a stage in his intended criminal enterprise [i.e., when he merely has formed a criminal intention]: that is to treat him as someone who will not be dissuaded, or dissuade himself, from carrying the wrong through.”49 At this stage, “there [still] is logical space for the thought that [the intending criminal] might yet have abandoned the attempt voluntarily.”50 Whether or not such logical space exists, I fail to see how respecting a person’s autonomy means clinging to the possibility that he will change his mind and give up his criminal enterprise. What if we believe there is no chance he will change his mind? Does that mean we believe he is not autonomous and for this reason we fail to respect his autonomy? I do not see how. Autonomy means self-rule. Setting to one side a strict Kantian conception of autonomy—which may be the only conception of autonomy compatible with Duff’s line of argument—self-rule does not necessarily entail action in accordance with the dictates of reason and morality. A person can act autonomously even if he is irredeemably committed to a criminal enterprise. Given this fact, if we believe that a person is unlikely to reconsider his deliberate choice to pursue a criminal enterprise, we do not thereby display a lack of respect for his capacity for self-rule. Nor do we display a lack of respect for his capacity for self-rule if, acting on our belief that he is unlikely to reconsider his criminal objective, we intervene to prevent him from achieving that objective. To act on the expectation that he will follow through on his choice (or at least might follow through) is, on the contrary, to respect his capacity for self-rule. To refrain from intervention on the ground that he might reconsider, despite the firmness of his present resolve, is in a sense to demean his autonomy. If any value demands that we afford a locus poenitentiae to someone who by all appearances has made a firm commitment to pursue a criminal enterprise, that value seems not to be autonomy.

48 Cf. id. at 388 (“[T]o say that the law should treat its citizens as responsible agents is to assert freedom as a categorical limit which should be respected, rather than as a consequential good which should be maximized.”).

49 R.A. DUFF, ANSWERING FOR CRIME, supra note 43, at 104–105. 50 Id. at 358.


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The second and even more serious shortcoming of Duff’s argument is that it falls short of justifying a categorical ban on punishing mere intent. Duff assumes without argument that one who “intends to commit, or is preparing to commit or taking initial steps towards committing, a substantive crime”51 has not already committed an independently punishable wrong simply by so intending. Duff assumes that a person’s malign intention is a candidate for punishment only to the extent the intention constitutes an incipient attempt to commit a “substantive crime.” But why assume that no intention is ever sufficiently dangerous and wrongful to be worthy of legal condemnation and sanction? As I observed at the outset, a person’s unexecuted intentions sometimes seem legitimate targets of the harshest and most damaging forms of extra-legal condemnation and sanction.

(ii) Evidentiary Adequacy

As I will argue, similar problems beset the efforts to ground the act requirement in a principle of evidentiary adequacy. Perhaps the oldest and most frequently repeated reason for requiring that criminal liability include an act is the supposed practical impossibility of proving the contents of a person’s mind. Blackstone stated the case in a sentence:

[A] fixed design or will to do an unlawful act, is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know.52

The scope of Blackstone’s claim is uncertain, thanks to the potential ambiguity of the phrase “demonstrated by outward actions.” If the phrase means manifested somehow in a person’s acts—possibly including expressive acts that the person does not intend as a means of executing or fulfilling his intention—then Blackstone’s claim is an exceedingly narrow one. It is the claim that a person’s malign intention is practically unprovable and therefore unpunishable if it is not manifested through any outward act whatsoever, even an expressive but non-executory act like a confession. This amounts to the near-trivial claim that an intention is practically unprovable if it is utterly secret, a claim I hesitate to attribute to Blackstone. To quote Giorgio Del Vecchio, “when it is said that an act of thought is not punishable, reference is [made] . . . to a known act of thought. . . . If the maxim . . . refers to secret thoughts it is absurd, because not thought alone, but every act whatsoever, is unpunishable as long as it is hidden.”53 I suggest that Blackstone is better understood as making a stronger claim: that a person’s malign intention is practically unprovable and therefore unpunishable when it is unexecuted, that is, when the person

51 DUFF, CRIMINAL ATTEMPTS, supra note 44, at 387. 52 [Citation] 53 GIORGIO DEL VECCHIO, THE FORMAL BASES OF LAW 140 & n.30 (John Lisle trans., 1914) (emphasis added).


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has performed no act that he intends as a means of fulfilling his intention. This is the claim commentators seem to invoke when they ground the act requirement in a principle of evidentiary adequacy. I will refer to the claim as Blackstone’s Principle.

Blackstone’s Principle supports a version of the act requirement, but a version that differs from the two we have considered so far. From Blackstone’s Principle it follows that, if a statute includes an intention among its elements, the statute also must include an act done to execute that intention. It is not hard to demonstrate that this constraint exceeds those imposed by the substantive and conditional act requirements. Suppose that, per the conditional act requirement, a statute includes among its elements an act, A. Suppose further that, per the substantive act requirement, the statute treats A as the underlying object of condemnation and sanction. The statute still might contravene Blackstone’s Principle by including as an element some potentially unexecuted intention, I. We of course can stipulate that a violation of the statute is punishable only when A is performed in order to fulfill I. But that stipulation imposes a further constraint, one not entailed by either the substantive or the conditional act requirement: that no statute include as an element an unexecuted intention.

This further constraint is one that the criminal law does not seem to adhere to. One statute that includes a potentially unexecuted intention among its elements is § 2119 of Title 18 of the United States Code, which makes it a crime to engage in carjacking “with the intent to cause death.” Typically, when a statute makes it a crime to do X “with the intent to” cause Y, the statute contemplates that X is an act the offender does in order to execute his intention to cause Y. Accordingly, the wrong the statute punishes is the wrong of doing X for the purpose of causing Y: breaking and entering a dwelling for the purpose of committing a felony therein, assaulting a person for the purpose of inflicting a serious injury, and so forth. In § 2119, however, the phrase “with the intent to cause death” does not mean “for the purpose of causing death.” No court has held that, to be guilty under § 2119, an offender must commit a carjacking in order to cause a death, in other words, that the offender must perform the carjacking as a means of executing his intention to kill. That would be a most unnatural interpretation of § 2119, given that a carjacker’s typical reason for carjacking is to obtain a car, not to kill someone. That is one reason why § 2119 permits conviction even when the carjacker’s lethal intention is conditional, that is, even when what the offender intends is <to kill only if necessary to accomplish the carjacking>.54 As the U.S. Supreme Court explained in Holloway v. United States, “Congress [in enacting § 2119] intended to criminalize the more typical carjacking carried out by means of a deliberate [and sincere] threat of violence, rather than just the rare case in which the defendant has an unconditional intent to use violence

54 Holloway v. United States, 526 U.S. 1, 12 (1999) (“The intent requirement of [18 U.S.C.] § 2119 is satisfied when the

Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car).”).


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regardless of how the driver responds to his threat.”55 In neither case—the rare one or the typical one—must the defendant commit the act of carjacking in order to further his intent to kill. In the rare case where the defendant intends to kill no matter what, the defendant still need not commit the carjacking as a means to killing the driver. Indeed, he might plan to kill the driver first—as a means to accomplishing the carjacking. Thus, his conscious purpose in committing the carjacking simply might be to obtain a car. All the more so, when the defendant’s intention to kill is conditional—when he intends to kill the driver only if necessary—his conscious purpose in committing the carjacking logically cannot be to kill the driver. If the carjacker’s plan is to kill the driver only if there is no other way to get the car, then he is not (cannot be) carjacking in order to kill. Rather, he is carjacking in order to get a car—hoping not to have to kill but willing to do so if necessary. The wrong § 2119 criminalizes therefore cannot be the wrong of <carjacking for the purpose of killing>. That would exclude the carjacker who hopes not to kill but remains open to the possibility. The wrong § 2119 criminalizes must be some version of the broader wrong of <carjacking while possessing the (possibly conditional) intention to kill>. What I wish to emphasize is that a person can commit this wrong, and thereby violate § 2119, even if his intention to kill is unexecuted. To be guilty under § 2119, a carjacker who is prepared to kill (if necessary) need not perform a single act with the intent of executing his (possibly conditional) intention to kill. No action the carjacker performs, least of all the carjacking itself, need be an action the carjacker performs in order to execute his intention to kill. Section 2119 therefore includes as an element a potentially unexecuted intention.

If a violation of § 2119 strikes you as provable in the circumstances described above—those in which the carjacker hopes not to kill but is prepared to do so if necessary—you probably do not accept Blackstone’s Principle. Should you? Only if you should accept that unexecuted intentions are categorically unprovable, and I don’t see why you should, given that the evidence for unexecuted intentions isn’t categorically worse than evidence for other mental states. It of course is true that unexecuted intentions can’t be proved from evidence of actions done to execute them (“executory evidence”); they instead must be proved from such things as a person’s expressive conduct, including self-reports (“expressive evidence”). But as a general matter we do not regard expressive evidence as inferior to executory evidence.56 When seeking to prove a partially executed intention, we rely heavily on expressive evidence, sometimes more heavily than on executory evidence. Executory evidence often is too ambiguous to serve on its own. One reason for the widespread rejection of the “equivocality test” for the actus reus of attempt is that almost no action meets the test’s demand of being “in itself sufficient evidence of

55 Id. at 3. 56 For a discussion of the comparative strength of expressive and executory evidence intentions, see Gideon Yaffe, ATTEMPTS:

IN THE PHILOSOPHY OF ACTION AND THE CRIMINAL LAW 224–28 (2012).


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the criminal intent with which it is done.”57 Criticizing the equivocality test, Williams suggests that executory evidence is the inferior type:

D goes up to a haystack, fills his pipe, and lights a match. The act of lighting the match, even to a suspicious-minded person, is ambiguous. It may indicate only that D is going to light his pipe; but perhaps, on the other hand, the pipe is only a “blind” and D is really bent on setting fire to the stack. We do not know. . . . But suppose that as a matter of actual fact D, after his arrest, confesses to the guilty intent, and suppose that that confession is believed. We are now certain of the intent. . . . That the act is ambiguous, which in itself might have created a doubt as to the mens rea, no longer matters, for the mens rea has been proved by the confession.58

While Williams’ example implies that the probative force of expressive evidence equals or surpasses that of executory evidence, this of course doesn’t show that expressive evidence is ever sufficient on its own. A proponent of Blackstone’s Principle could insist that D’s confession proved his intent to start a fire only because we considered the confession in the light of D’s executory conduct: going up to a haystack and striking a match. Without executory evidence, one could claim, we can never know whether a given mental state is a firm intention as opposed to a mere desire or fantasy. The trouble with this claim is that our everyday experience contradicts it. We routinely repose the utmost confidence in what a person say he intends to do, even well before he has begun to act on his stated intention. Examples range from the mundane (believing that a person will show up to an appointment) to the vital (believing that the people behind us will catch us when we do a trust fall). If it is sometimes reasonable of us to base our beliefs about a person’s intentions on what he says he intends to do, then expressive evidence is sometimes sufficient to prove an unexecuted intention. If so, Blackstone’s Principle is an over-generalization, and, to the extent that Blackstone’s Principle is the act requirement’s foundation, the act requirement is an over-generalization as well. Yet the act requirement in all its formulations purports to be categorical: formulated substantively, the requirement categorically forbids statutes to treat anything but an act as an object of condemnation and sanction; formulated conditionally, the requirement categorically forbids statutes to dispense with an act element; formulated in terms of Blackstone’s Principle, the requirement categorically forbids statutes to include as an element an unexecuted intention. The act requirement purports to be categorical; it is sound only if all of its instances can be justified. Blackstone’s Principle justifies only some of them.

57 The King v. Barker, [1924] N.Z.I.R. 865, 874 (C.A.) (Salmond, J.). 58 Glanville Williams, CRIMINAL LAW: THE GENERAL PART 630 (2d ed. 1961).


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(iii) Freedom of Thought

Punishing someone for her unexecuted intentions is sometimes said to be an invasion of her privacy. I suspect that many of the people who say this have in mind a scenario in which the government criminalizes a specific subset of unexecuted intentions: intentions utterly unmanifested and therefore detectable only after intrusive investigations launched upon paltry suspicion. Criminalizing hidden, unmanifested intentions certainly does seem wrong—but it seems wrong for the reason that the investigation and prosecution of such unmanifested intentions would inevitably be oppressive, not for the reason that punishing unexecuted intentions as such is wrong. If punishing mere intentions as such is wrong, that must be because mere intentions have a privileged status that renders them off-limits. But if mere intentions do have a privileged status of this sort, we need to know why intentions lack that status when they’re serving as the mens rea component of an offense that also includes an actus reus. Why is it wrong to punish someone for the intention alone, but not wrong to punish her for the conjunction of the intention and an action that accompanies it?

One possible answer is that the reason why the accompanying action renders the overall package of action and intention punishable is that the action provides indispensable evidence—evidence of the intention’s existence, perhaps, or of the fact that the intention is sufficiently dangerous or blameworthy to merit punishment. As I argued above, however, it is doubtful that unexecuted intentions are never provable, or can never be proved to be dangerous or wrongful enough to merit punishment. Anyway, even if I am wrong—even if unexecuted intentions are indeed never provable, or never provably dangerous or wrongful enough to merit punishment—it is doubtful that these contingent propositions about what can be proved are the foundation of the allegedly categorical ban on punishing mere intent. Blackstone’s Principle provides an arid foundation for the idea that punishing unexecuted intentions would transgress a principle of “natural justice”59 founded in “the inviolability of thoughts,”60 a principle whose disregard would constitute a “monstrous”61 intrusion into a person’s “private world”62 and an invasion of her “essential . . . human right to freedom of thought.”63

Why, then, does an intention lose its impunity when punishment is imposed not simply for it, but for it plus an action? Perhaps the performance of an action constitutes a waiver of the immunity. So says Francis Wharton:

59 G.A. Endlich, The Doctrine of Mens Rea, 13 CRIM. L. MAG. 831, 832 (1891). 60 Meir Dan-Cohen, Harmful Thoughts, 18 L. & PHIL. 379, 379 (1999). 61 Yaffe, Criminal Attempts, supra note 3, at 101. 62 Andrew Ashworth, Attempts, in THE OXFORD HANDBOOK OF PHILOSOPHY OF CRIMINAL LAW 125, 133–34 (John Deigh &

David Dolinko eds., 2011). 63 Clay Calvert, Freedom of Thought, Offensive Fantasies and the Fundamental Human Right to Hold Deviant Ideas: Why the

Seventh Circuit Got It Wrong in Doe v. City of Lafayette, Indiana, 3 PIERCE L. REV. 125, 125 (2005).


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The mere unexecuted purpose of thieving does not make a thief. . . . It is sure that as soon as the intention touches and makes an impress on the outside world, this immunity from prosecution ceases. He who, intending to steal, has false keys made for the purpose of entering a room where money is kept, and who begins the work of purloining by applying the keys to the door, may be indicted for the attempt; and so may he who lays an ambuscade for another, arranging the materials of ambush so as to facilitate the surprise; and so may he who puts in operation a plan by which a forgery will be effected, unless some extraneous influence intervenes.64

If performing an action in furtherance of one’s intention constitutes a waiver of the intention’s impunity, we need some explanation of why this is so. Is it because action alone “touches and makes an impress on the outside world,” as Wharton suggests—action alone has physical effects? This explanation explains nothing: it identifies a difference between thought and action but gives no account of why the difference matters. Why is it significant that actions alone have physical effects? Actions, thanks to their physical effects, can risk causing harm and can constitute public wrongs, that is, wrongs of proper concern to the polity. But unexecuted intentions can do these things, too—before they have had any physical effects. If the argument from forfeiture is to succeed, a proponent of the argument must identify some difference between unexecuted intentions and intentions-plus-actions that makes sense of how the former but not the latter might enjoy immunity from punishment. Until then, we are entitled to be suspicious of the all-to-convenient line that forfeiture theorists draw at the boundary between thought and action.

To repeat the point: we need an explanation of why the categorical impunity that freedom of mind bestows on unexecuted intentions does not extend to executed intentions, intentions accompanied by actions done to fulfill them. If mere intentions enjoy a privileged status that makes their punishment intrinsically wrong, why doesn’t that privileged status make it wrong to punish someone for a package that includes an intention? If mere intentions are intrinsically off limits, why aren’t intentions always off limits? Why aren’t they off limits even when they’re conjoined with actions? If unexecuted intentions are categorically off limits to the criminal law, it might be impossible to escape the conclusion that all intentions are off limits to the criminal law, including intentions that are accompanied by actions done to execute them. This conclusion in turn seems to entail the absurd consequence that no one may be punished for a crime that includes a culpable mental state. If sound, this whole chain of inferences not only undermines the freedom-of-mind rationale for the act requirement, it also undermines the act requirement itself, serving as a reductio ad absurdum of the general

64 Francis Wharton, Comparative Criminal Jurisprudence, 4 CRIM. L. MAG. 1, 5 (1883).


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premise that unexecuted intentions are categorically off limits to the criminal law. We therefore seem to confront a dilemma: either persons lack the right not to be punished for their unexecuted intentions or, because intentions retain impunity when conjoined with actions, persons possess the right not to be punished for crimes that involve mens rea. The first horn of the dilemma unsettles a celebrated axiom of criminal jurisprudence. The second unsettles most of the criminal law.

Solutions and Implications

We can evade this dilemma and preserve the freedom-of-mind rationale for the act requirement. But to do so we must be willing to rethink the relationship between mens rea and actus reus and to adopt what may be an unorthodox conception of the nature of criminal wrongs. The traditional separation of actus reus from mens rea encourages us to regard penal statutes as punishing conjunctive wrongs, wrongs consisting of the combination of a bad act and a culpable mental state. Conceived this way, penal statutes punish offenders in part for their mental states, something that a categorical right to freedom of mind forbids. We could avoid this unwelcome conflict by giving up on the idea that the act requirement derives from a categorical right to freedom of mind, as we would be forced to do anyway if we accepted the evidentialist or autonomy-based rationales for the act requirement. I suggest that we instead give up on the idea that criminal wrongs are conjunctive: rather than thinking of criminal wrongs as bad acts conjoined with culpable mental states, we should think of criminal wrongs as acts made bad by culpable mental states. Similarly, instead of regarding penal statutes as punishing offenders in part for their mental states, we should regard penal statutes as punishing offenders solely for their acts but only on the condition that those acts are accompanied by culpable mental states. I believe we already think of certain elements as being morally transformative in this way. Consider the crime of possessing a firearm after being convicted of a felony. The prior-felony element must be conditional; if it were substantive—if the statute punished offenders for being felons—then the statute would violate double jeopardy. Yet the prior-felony element is morally transformative: it makes gun possession condemnable. I suggest that mens rea operates similarly.

To see how understanding mens rea elements as conditional would evade the dilemma seemingly foisted on us by the freedom-of-mind rationale for the act requirement, consider again § 2119, the federal offense that prohibits carjacking with the intent to kill. Actually, first consider a fictional statute that makes it an offense to litter while intending to murder someone. Because littering is a wrongful act, the statute truly imposes punishment for an act. Yet the statute also seems to impose punishment for a thought. Indeed, it seems to impose punishment for a mere thought. The object of punishment under the statute is plainly a gerrymandered disjunction, the gangly hybrid of a thought (an intention to commit murder) and an unrelated action (an act of littering). The required connection is mere contemporaneity. The offender need not litter in order to


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execute his intention to murder. Although a rare offender may litter as part of a murder plot, such an offender is no guiltier of violating our imaginary statute than is the hitman who thoughtlessly flicks a cigarette butt onto the sidewalk while mentally planning his next hit. Because the intention is disconnected from the required action—potentially disconnected from any action—it seems natural to say that the statute imposes punishment for a potentially unexecuted intention, even if it also imposes punishment for an action. If our hitman were indicted for two separate offenses—the offense of littering and the offense of intending to murder—would we hesitate to describe the second of these offenses as punishing the hitman for an unexecuted intention? If not, why should we say something different about the compound offense of littering while intending to murder? Although the compound offense unquestionably punishes an action, it also punishes a mere intention and therefore violates the act requirement—the substantive one if not the conditional one.

Now compare my made-up offense of littering while intending to murder to § 2119, the federal carjacking statute. Both offenses criminalize the combination of an act (littering/carjacking) and an intention that the act need not execute to any extent (the intention to kill). This offense structure was enough to render the made-up littering-while-intending-to-murder statute a thought crime. If a defendant were charged in one count with littering and in another with intending to kill, he obviously would face the prospect of punishment for his possibly unexecuted thoughts. Nothing about this would change if the two offenses were conjoined in a hybrid offense positing no connection between the action and the intention other than sheer contemporaneity. To be sure, the hybrid offense would impose punishment for a genuinely wrongful act—littering—but it also would impose punishment for a potentially unexecuted thought. Why shouldn’t we say the same of the offense created by § 2119? If a carjacker were indicted for two separate offenses—the fictional offenses of “simple” carjacking and of intending to kill—we would not hesitate to describe the second of these offenses as punishing the carjacker for an unexecuted intention. Should we not say the same of the compound offense of carjacking with the intent to kill? Even though the compound offense unquestionably punishes an action, doesn’t the compound offense also punish a potentially unexecuted intention? (More generally, doesn’t every offense that includes a mens rea element impose punishment for thought as well as for action?)

The flaw in this argument is its assumption that the wrong criminalized by § 2119 is the hybrid of two separate but simultaneous wrongs: an act of carjacking and a contemporaneous intention to kill. This is a strange way to think of the wrong criminalized by § 2119. Far from being a gerrymandered pair, the carjacking and the intention are united by a single end: to obtain a car through force, violence, or intimidation. A better way to conceive the underlying wrong is simply as the wrong of carjacking—a wrong made more dangerous and more blameworthy when accompanied


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by an intention to kill the driver. This conception of the underlying wrong casts the accompanying intention as a conditional element of the offense, a condition that serves to direct prosecutorial attention to the most heinous instances of the wrong of carjacking. If we think of the overall offense this way, we can defend § 2119 from the line of argument that showed the made-up littering-while-intending-to-murder statute to be a thought crime. We can concede that if a carjacker were indicted separately for the offenses of “simple” carjacking and of intending to cause death, the second of these offenses would punish the carjacker for an unexecuted intention. We also can concede that if § 2119 truly were just the conjunction of two sub-offenses—a conjunction bound together by nothing but simultaneity—§ 2119 really would impose punishment for an unexecuted intention, even if it also would impose punishment for a wrongful action. But we should deny that § 2119 imposes punishment for the conjunction of two separate wrongs. Section 2119 imposes punishment for the unitary wrong of carjacking—and it imposes punishment for that wrong on the condition that the wrong was especially heinous as a result of the defendant’s willingness to use lethal force. If this analysis is sound, the defendant’s intention to kill is no part of the wrong that § 2119 imposes punishment for: the statute simply does not impose punishment for unexecuted thought. There ultimately is nothing surprising about this result—only I have ever suggested that § 2119 might be a thought crime!—but there is something surprising about the route we took to get here. What is surprising is that, to avoid construing § 2119 as imposing punishment for unexecuted thought, we had to regard the mental-state element as non-substantive.

I propose that we consider the mens rea elements of all offenses to be conditional. This of course is a sensible way to think of a given offense only if it is sensible to think of the actus reus of the offense as a wrong worthy of condemnation. With respect to the classic criminal offenses, this requirement is easily satisfied: causing a death (the actus reus of murder), taking the property of another (the actus reus of theft), sexually penetrating someone without the person’s consent (the actus reus of rape)—each of these actions is presumptively worthy of condemnation. The more challenging cases are offenses where the actus reus is innocuous on its own. Consider Douglas Husak’s examples of criminal wrongs that involve conduct that would be perfectly innocent in the absence of an illicit intention:

A person may give an official a gift that in fact influences his judgment, but he has not committed bribery unless his intention in giving the gift was to influence the official’s judgment. . . . The act of altering a writing is innocuous, but a person commits forgery when he alters the writing with the purpose to defraud or injure another. The destruction of evidence of a crime is an everyday occurrence, but a person commits an offense when


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he conceals or destroys evidence with the purpose of hindering a prosecution.65

In addition to these examples there is the offense of attempt, certain conceptions of which allow the most innocent of actions to serve as the actus reus if done with criminal intent. In all these cases, it may seem that the underlying wrong is not an act but the union of an act and an illicit intention, punishment being imposed for both—in violation of the freedom-of-mind rationale for the act requirement.

I suggest that it is a mistake to think of things this way. What confuses us is that in these cases there are multiple wrongs, as there are in all cases where a person acts with malign intent. One of these wrongs is the malign intention itself, an appropriate object of moral condemnation even when unexecuted and therefore unpunishable. But the act is a wrong as well, even if only because of the intention. We can appreciate that the act and the intention are distinct wrongs—the first punishable, the second not—if we consider that they may warrant distinct levels of condemnation. If the act is an inconsequential step in execution of a hideous intention, the act may be a far milder wrong than the intention that animates it. We resent the hitman considerably more for harboring a murderous intention than for circling the block in search of his prey. But it is only for circling the block (if for anything) that we may punish him.

How often is it plausible to construe the mens rea element of a statute as conditional? As often as it is plausible to regard the required mental state as somehow increasing the heinousness of the forbidden act. When this isn’t plausible, it may be impossible to escape the conclusion that the mens rea element is substantive, and that the statute impermissibly imposes punishment for thought. But I doubt that there are very many cases like this. One such case would be the imaginary statute that Michael Moore offers as an example of how a statute might treat the act requirement as an “empty formality.”66 Moore’s imaginary statute makes it a crime “to intend to bribe an official while at the same time whistling Dixie, combing one’s hair, or washing one’s cat.”67 Moore contrasts his imaginary statute with the Interstate Travel Act,68 which he glosses as criminalizing interstate travel undertaken with the intent to bribe officials or perform other corrupt acts.69 Moore explains that the Interstate Travel Act genuinely complies with the act requirement—and by implication avoids punishing mere intent—because it “require[s] by way of an act . . . some act that executes, however slightly, the culpable intention. Traveling interstate in order to bribe an official satisfies such an act

65 Douglas N. Husak, The Costs to Criminal Theory of Supposing that Intentions are Irrelevant to Permissibility, in THE

PHILOSOPHY OF CRIMINAL LAW: SELECTED ESSAYS 69, 77–78 (2010). 66 MICHAEL S. MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR CRIMINAL LAW 19 n.5

(1993). 67 Id. 68 18 U.S.C. § 1952. 69 MOORE, supra note 66, at 19.


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requirement; washing one’s cat while intending to bribe an official does not.”70 I agree to an extent with Moore’s explanation. The Interstate Travel Act avoids punishing mere intent because it requires an act that executes the culpable intention. But why does requiring an act that executes the culpable intention save a statute from punishing thought? Presumably because requiring this connection is one way that a statute can ensure that the culpable intention increases the heinousness of the forbidden act (as it must if punishment is to imposed be for the act and not the intention). But why is this the only way? I don’t think we should assume that a culpable intention can increase the heinousness of a forbidden act only if the act executes the intention. A counter-example to this assumption is the federal carjacking statute. An unexecuted conditional intention to kill increases the heinousness of the act of carjacking, making it a worse act than it otherwise would be. That is enough to save the statute from punishing thought.

These considerations may help us to appreciate the true point of the perennially obscure requirement of concurrence. First, let us consider the standard view. Gideon Yaffe offers a lucid defense of what I take to be the generally-accepted explanation and justification of the concurrence requirement. He calls it the “requirement of correspondence”:

Under what conditions do the act and mental state “correspond”? Criminal law students are taught that the needed correspondence is present when the act and the mental states take place at the same time. Teaching the Requirement of Correspondence this way may serve pedagogical purposes, but it misses the point of the requirement. We can illustrate this with examples in which an agent has two intentions at a particular time, but is only acting on one of them. D and V go hunting. D intends to kill V when the moment is right, but intends to hunt deer until then. When he fires towards both a deer and V, and hits V, killing him, is there appropriate correspondence between his intention to kill V and his act? There is not, if at that moment he was acting on his intention to kill the deer and merely accidentally killed V. Of course, such a defendant has an uphill battle to convince a jury that he was not acting on his intention to kill V. But in fighting it he is trying to show that the Requirement of Correspondence was not met. The Requirement of Correspondence does not merely bar liability when the act and mental state are not simultaneous. Rather, it bars liability when the act is not the manifestation or the product of the mental state. In fact, there is an intuitively appealing moral principle here: a person’s mental states contribute to his

70 Id. at 19 n.5.


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responsibility for his act only if the act is the manifestation (in an intuitive but not yet defined sense) of those mental states.71

According to Yaffe’s conception of the concurrence requirement (which is also the standard conception72), the defendant’s act must be a contemporaneous manifestation of his mental state, or else his mental state “will not contribute to his responsibility for his act.” I assume that, for a person’s mental to “contribute to his responsibility for his act” is at least for the mental state to affect the act’s moral quality—to make it wrong or blameworthy, or to make it more wrong or blameworthy than it otherwise would be.

I agree that the function of the concurrence requirement is to ensure that an offense’s mens rea element contributes to the offender’s responsibility for his act. But I reject the standard two-fold assumption that a mental state can makes such a contribution only when it is both contemporaneous with the actor’s conduct and executed (or otherwise manifested) through that conduct. As we already have seen, a mental state can increase the heinousness of an act even if the mental state does not manifest itself through the act. This is shown by the example of the federal offense of carjacking with the intent to kill, which illustrates the transformative moral significance of an unexecuted conditional intention. A different sort of example comes from Kenneth Simons’ discussion of the moral significance of motive. Simons contrasts two killers, C1 and C2. “C1 killed the victim in a particularly brutal manner for the very purpose of obtaining pleasure in the victim’s suffering. That form of cruelty reflects an especially reprehensible motive.”73 In contrast to C1, who killed brutally in order to further his desire for sadistic pleasure, “C2 kills his victim in a brutal manner and discovers, to his surprise, that this brings him great pleasure. We might even suppose that C2 has killed before and has never before derived any emotional satisfaction from the killing.”74 While Simons is skeptical about whether C2’s pleasure should “count in favor of imposing a much heavier punishment,”75 I think it is uncontroversial that C2’s sadistic pleasure increases the heinousness of his killing. Thanks to his pleasure, C2’s killing is more blameworthy than it otherwise would be—even though C2 does not perform the lethal act with the intention of procuring sadistic pleasure.

Having unshackled ourselves from the false assumption that a culpable intention can increase the heinousness of a forbidden act only if the act executes the intention, we are well-positioned to reject the second assumption embedded in the standard formulation of the concurrence requirement: that a mental state can affect the moral quality of a given act only if the act and mental state are contemporaneous. Suppose I stash some cocaine in

71 Gideon Yaffe, The Voluntary Act Requirement, in THE ROUTLEDGE COMPANION TO THE PHILOSOPHY OF LAW 174, 183–84

(Andrei Marmor ed., 2012). 72 See generally 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.3 (5th ed. 2010). 73 Kenneth W. Simons, Punishment and Blame for Culpable Indifference, 58 INQUIRY 143, 155 (2015). 74 Id. (emphasis added). 75 Id.


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the glove compartment of my car and promptly forget about it. Years later, after the statute of limitations has run, the police find the cocaine during a traffic stop and charge me with possession of cocaine, an offense that requires the mens rea of knowledge. Am I guilty of the offense now? Or was I guilty only at the moment I stashed the cocaine in my glove compartment? I doubt any court would dismiss the charge against me as untimely on the ground that the last day on which my knowledge and possession concurred was the day I stashed the cocaine in my car. What I knew then affects the moral quality of my act now. Thanks to my prior knowledge, my present possession is wrongful and blameworthy.

As I conceive it, the concurrence requirement serves to ensure that a person is punished only for his acts (never for his mental states) by ensuring that any mental state included among the conditions of liability be one that actually affects the moral quality of the offender’s acts. I have tried to show that such assurance can be gleaned from sources beside the rigid temporal and psychological connections on which the standard formulation insists. A mental state can shape an act’s moral quality profoundly even if the act isn’t performed in order to execute the mental state but instead is performed in the light of that mental state.

Which Laws Violate the Act Requirement?

Justice demands that we discriminate carefully between the multiple, co-occurring wrongs that exist whenever an offender acts with malign intent: the wrongful act and the wrongful intention. The severity of an offender’s punishment must befit the gravity of his act, not the gravity of the intention that lies behind it. It frequently may be the case that, when the actus reus of an offense is an act innocuous in itself, many instances of the offense will involve an illicit intention that is a far graver moral transgression than the act done to execute it. These cases may tempt us to impose a sentence whose harshness befits the gravity of the intention. But if we succumb to this temptation we will punish the offender in violation of the act requirement. The most troubling thing about the super-inchoate offenses discussed earlier is that they make such impermissible punishment exceedingly likely, insofar as they allow extremely long sentences to be imposed on offenders whose acts are potentially trivial. These acts are punishable, but only to the extent of their wrongfulness, which may be far less than that of the intentions with which they are performed.

Because so many offenses target acts on the ground that those acts are a reliable proxy for certain undesirable states of mind, the temptation to punish thought pervades our criminal justice system. Gun and drug possession offenses have this character, and so does the offense of possessing child pornography. Those who commit these offenses evidently may harbor states of mind far viler than their potentially paltry acts of


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possession. But these states of mind are off-limits to the criminal law if we wish to ground the act requirement in the right to freedom of mind.

It probably is apparent by now how I think we should approach the claim that hate crime penalty-enhancement laws impermissibly punish offenders for their thoughts. Recall Jacobs and Potter’s objection to these laws:

Generic criminal laws already punish injurious conduct; so recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra punishment for values, beliefs, and opinions . . . . If the purpose of hate crime laws is to punish more severely offenders who are motivated by prejudices, is that not equivalent to punishing hate speech or hate thought?76

A common response to this argument is to embrace its conclusion: “Hate crime penalty-enhancement do impose punishment for thought. But in this they are no different from all other criminal offenses, all of which impose the degree of punishment that they do because of an offender’s mental state.” To voice this response is to presuppose what I have argued is an incorrect conception of penal wrongs—a conception according to which the underlying wrong punished by a criminal statute is the hybrid of an act and a culpable mental state, punishment being imposed for both. Admittedly, the structure of hate crime penalty-enhancement laws invites us to entertain this conception. The sharp increase in punishment seems to amount to punishment for a separate offense: the hateful motive. But if the offender’s hateful motive increases the heinousness of his act—and this is what needs to be determined—then the offender’s enhanced sentence represents punishment for a more serious act, not punishment for a hateful thought.77

Do the anti-terror statutes considered earlier impose punishment for thought? That depends on whether it is plausible to construe the mens rea elements of these statutes as conditional, and it is plausible to do so only if it is plausible to construe their actus reus elements as substantive. There are at least a few cases where this is not plausible. Consider Section 16(2) of the United Kingdom’s Terrorism Act of 2000, under which it is an offense, punishable by fifteen years in prison,78 for a person to “possess money or other property” where the person “intends that it should be used . . . for the purposes of terrorism.”79 What is the wrong this statute punishes? The unreflective answer is that the statute punishes an act of wrongful possession, specifically, possessing money or some other object with the intent to use it for terrorism. I suggest that this is misdirection. The statute doesn’t punish an act of wrongful possession so much as it punishes the

76 Jacobs & Potter, supra note 42, at 121. 77 By saying this, I do not mean to give hate crime legislation a clean bill of constitutional health. There are other telling

objections that I do not address. 78 Terrorism Act, 2006, pt. 1, § 13 (U.K.). 79 Terrorism Act, 2000, pt. 3, § 16 (U.K.).


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possession of a wrongful intention: intending to use one’s money or other property for terrorism. Consider that money is as pervasive among human beings as clothing. Virtually everyone possesses some amount of both. Because the possession of money is a normal background condition in human life, a person becomes guilty of an offense under Section 16(2) the very moment he forms the intention to use his money for purposes of terrorism. This striking fact strongly suggests that the underlying wrong criminalized by the statute consists in the mere intention to use one’s money for terrorism, not in the normal background condition of money-possession. But why exactly does it suggest that?

Let this question linger for a moment and imagine a statute that makes it an offense for a person to intend to kill someone with his bare hands. No one could deny that this statute creates a thought crime. The wrong criminalized by the statute unquestionably is a pure intention. Would things be otherwise if the statute made it an offense for a person with hands to intend to kill someone with his bare hands? Would anyone now insist that the wrong criminalized by the statute was not the wrongful possession of an intention but rather the wrongful possession of hands? I cannot imagine that anyone would interpret the statute as criminalizing possession of hands with the intent to kill. Perhaps a statute that did this would be unfair, because it would direct one who intends to kill someone with his bare hands either to change his mind or to cut off his hands. But this sort of unfairness doesn’t seem to be the full explanation of what inclines us against interpreting the statute as criminalizing the possession of hands.

What inclines us against interpreting the statute as criminalizing the possession of hands is less a desire to avoid unfairness than the fact that possessing hands is a normal background condition in human life. Possessing hands is only in the weakest sense something that anyone does. A hand is not gun. Gun possession is not (or not yet?) a normal background condition in human life. It is optional and eminently avoidable. Possessing a gun is something that a person does, and something he might sensibly be called upon to stop doing. If a gun owner forms the intention to shoot someone, it becomes incumbent on him either to abandon the intention or to abandon the gun. If he does neither, his persistent gun possession becomes a continuing wrong, something for which he will rightly be condemned. Not so for the would-be strangler’s persistent hand possession. Although we will condemn the would-be strangler for his intention to strangle, we will not condemn him for his possession of hands, even though he theoretically could rid himself of them. This, I submit, is because hand possession is a normal background condition in human life. As such, “hand possession” is not something we tend to think of as an act the would-be strangler performs in order to carry out his intention to strangle. Nor is hand possession something we tend to think of as augmenting that intention’s dangerousness or blameworthiness. To be sure, the would-be strangler is more dangerous with hands than without them. But the condition of no-handedness is not


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the relevant baseline. The relevant baseline is a condition of background normalcy, not one that involves unusual disabilities.

Now, if a statute made it an offense for a person to intend to use another’s money for terrorism, no one could deny that the statute created a thought crime. The wrong criminalized by the statute unquestionably would be a pure intention. But why should we conceive any differently of the wrong criminalized by Section 16(2), which makes it an offense for a person to intend to use his own money for terrorism? Why should we now say that the wrong criminalized by the statute is not the wrongful possession of an intention but rather the wrongful possession of money? Having money, like having hands, is a normal background condition in human life. Possessing money is only in the weakest sense something one does. It is rather a condition in which one virtually always finds oneself. That condition does not suddenly cry out for condemnation the moment one forms the intention to use one’s money for terrorism, any more than hand possession suddenly cries out for condemnation the moment one forms the intention to strangle someone. What do we want to say to someone who intends to use his money for terrorism? Is it: “How dare you possess money (for that purpose)?! You’d better get rid of it.” That is almost as awkward as saying: “How dare you possess hands for the purpose of strangling someone?! You’d better cut them off.” The natural response to one who intends to use his money for terrorism is: “How dare you intend to use your money for that purpose?!” It is the intention we condemn, not the act of possession. Being a pervasive background condition of normal life, the act of possessing money is not something we tend to think of as an act one performs in furtherance of one’s various financial intentions. To be sure, the would-be terrorist is more dangerous with money than without it. But, as with no-handedness, the condition of abject penury is not the relevant baseline. The relevant baseline is a condition of background normalcy, not a condition that involves unusual disabilities. Literal pennilessness is as unusual a condition as no-handedness.80

What inclines us away from seeing money possession as a plausible object of punishment is less its innocuousness than its pervasiveness. An act innocuous in itself can be the wrong for which punishment is imposed if the act is done with wrongful intent. Consider the act of connecting to the internet. Section 474.14 of the Australian Criminal Code deems a person guilty of an offense punishable by up to life in prison if he “connects equipment to a telecommunications network . . . and . . . intends by this to commit . . . or to facilitate the commission of . . . a serious offence . . . .”81 If done with the intention to hack into a military computer system, connecting to the internet is clearly a wrongful act. The act itself, not just the intention that animates it, is a sensible object of condemnation. But if we lived in a world in which connecting to the internet were as

80 Or so suggests my colleague Scott Hershovitz. 81 Criminal Code, § 474.14 (Austl.).


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pervasive as breathing—and we soon may—how would we understand the wrong criminalized by Section 474.14? I suggest that we would understand it as we understand the wrong criminalized by the hypothetical statute making it an offense for a person with hands to intend to kill with his bare hands. We understand the wrong criminalized by that statute as the wrong of intending to kill with one’s bare hands, not the wrong of possessing hands with the intent to kill. Perhaps in a world of ubiquitous and thoroughgoing internet connectivity (made possible by “bioelectronics”?) we would understand the wrong criminalized by Section 474.14 simply as the wrong of intending to commit a serious offence—a thought crime.

Americans do not yet live in a country where connecting to the internet is as pervasive as breathing, but it is not hard to imagine that they soon may live in one governed by anti-terrorism statutes like Section 16(2) of the United Kingdom’s Terrorism Act of 2000. The counter-terrorism techniques that have protected us from the non-citizen, Al Qaeda-affiliated terrorists of the so-called War on Terror may prove ineffectual against the internet-radicalized domestic lone-wolves of the present and future. We cannot deport or indefinitely detain someone if he is an American citizen. We cannot prosecute someone for rendering material support to a foreign terrorist organization if he has rendered no such support. We cannot prosecute someone for conspiracy if he has not conspired with anyone. We cannot prosecute someone for attempt if he has not (yet) attempted anything. If we are unwilling to tolerate the danger posed by the new breed of domestic terrorist,82 we inevitably will be tempted to expand the reach of the criminal law. It is hardly a stretch to suppose we might respond to the uncertain threat of lone-wolf terrorism by enacting a statute like Section 16(2), which in effect criminalizes mere intent. We have responded in much the same way to previous threats of a similar character. In the early twentieth century, nearly half the states enacted “criminal syndicalism” laws designed to combat the frightening but in hindsight inconsiderable risk of violent economic radicalism.83 South Dakota’s criminal syndicalism statute had every bit the breadth of Section 16(2), imposing up to a twenty year prison sentence on anyone “who shall have in his possession or control anything with intent to destroy life or property, in the pursuance or furtherance of any of the doctrines of criminal syndicalism. . . .”84

A likelier model than Section 16(2) of the United Kingdom’s Terrorism Act of 2000 is the more guileful Section 57(1), which makes it an offense to “possess[] an article

82 Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 618 (2005) (“The catastrophic nature of the September 11 attacks has changed the federal playing field still more. Now we are unwilling to wait for attacks to occur; we demand that federal enforcement agencies work to prevent them from happening, not just by improving their intelligence capabilities but by prosecuting the terrorists before they actually strike.”); Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, 80 S. CAL. L. REV. 425, 427 (2007) (describing “the emergence of a preference for early prosecutorial intervention in terrorism investigations within the United States”).

83 Ahmed A. White, The Crime of Economic Radicalism: Criminal Syndicalism Laws and the Industrial Workers of the World, 1917–1927, 85 OR. L. REV. 649, 659 & n.29 (2007).

84 S.D. CODE § 13.0801 (1939) (emphasis added).


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in circumstances which give rise to a reasonable suspicion that [one’s] possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” Construed in isolation, Section 57(1) creates a strict-liability offense of “possession under suspicious circumstances.” Such an offense raises at least two immediate concerns. First, the offense seems to punish a staggeringly broad range of conduct, much of it potentially innocuous. Second, the offense seems to lessen the prosecution’s burden of proof, requiring only a “reasonable suspicion” that the defendant’s purpose is to commit an act of terrorism. Despite these very real concerns, Section 57(1) does not appear to raise the specter of punishment for thought.

But appearances are deceiving. Section 57(1) avoids raising suspicions about punishment for thought only because the true wrong that Section 57(1) criminalizes is in fact something other than the action picked out by the elements of that single provision. Section 57(1) exists alongside two other provisions, Sections 57(2) and 118(2), all three of which jointly define the underlying wrong. Section 57(2) establishes a defense to 57(1) for anyone whose “possession of the article is not for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And Section 118(2) allocates the burden of disproving any such defense to the prosecution: once a defendant has offered evidence of an innocent purpose, “the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.” Thanks to Sections 57(2) and 118(2), a jury may convict a defendant of violating Section 57(1) only when it (i) reasonably suspects that the defendant’s possession of an “article” is for terroristic purposes and (ii) finds that the prosecution has utterly discredited any evidence the defendant might have offered to dispel the jury’s reasonable suspicion that the defendant’s true purpose was to commit an act of terrorism. Now consider what it really means for the jury to conclude that the defendant has offered no credible evidence to dispel its reasonable suspicion that the defendant intended to commit an act of terrorism. For the jury to draw this conclusion is effectively for the jury to find that the defendant intended to commit an act of terrorism. The wrong that Section 57(1) criminalizes is therefore less a wrong of “possession under suspicious circumstances” than a wrong of “possession with specific intent” —possession of some “article” with the intent to use it to commit an act of terrorism.85 When the article in question is money or some other item the possession of which is a neutral background condition, Section 57(1) effectively criminalizes the same wrong as Section 16(2): possession of a wrongful intention.

85 Cf. R.A. Duff, Perversions and Subversions of Criminal Law, in THE BOUNDARIES OF THE CRIMINAL LAW 88, 97 (R.A. Duff

et al. eds., 2010) (“What is criminalized [by Section 57 of the United Kingdom’s Terrorism Act of 2000] is not merely possession that creates a reasonable suspicion, but possession for terrorist purposes. . . . The only difference between this crime and ‘standard’ crimes is that the issue of the defendant’s intention, which is normally a mens rea matter to be proved ab initio by the prosecution, is shifted to the category of defences, laying an evidential burden on the defendant; but it will surely not be hard for an innocent person to adduce evidence of the innocence of his intentions sufficient at least to create a reasonable doubt (‘raise an issue’) about the matter.”).


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I doubt it is possible to offer an exhaustive analysis of what makes some status a neutral background condition akin to money-possession. I have suggested that a condition’s pervasiveness matters more than its innocuousness or than the unfairness of demanding that one rid oneself of the condition. But innocuousness and unfairness are not irrelevant, nor is pervasiveness alone sufficient. I suspect that pervasiveness in the brute statistical sense is not even necessary: in a land of wretched poverty, money-possession still might be a neutral background condition for those who possess money.86 As is often the case, it may be easier to identify clear instances of the phenomenon than it is to articulate necessary and sufficient conditions for its occurrence. If possessing money is a neutral background condition, what about possessing kitchen knives or screwdrivers? When coupled with a criminal intent, possessing these and other ubiquitous household items can satisfy the actus reus of the offense of possession of burglar’s tools with intent to use them,87 an offense that exists in some form in nearly every American state.88 Potentially, these offenses punish larcenous intentions the same way Section 16(2) punishes terroristic ones. These statutes are unusual, perhaps, but no more so than legally-sanctioned torture or other fundamental injustices that should disturb us no matter how infrequently they occur.89

What Grounds Freedom of Thought?

I have shown that the act requirement can be grounded in a principle of mental impunity or freedom of thought. I also have shown that this principle yields important further consequences: it illuminates the nature and importance of the poorly-understood doctrinal requirement of “concurrence” between actus reus and mens rea; it explains whether and why hate-crime and anti-terror legislation should be construed as punishing offenders for their thoughts; and, most important of all, it shows us that we must base an offender’s punishment on the gravity of his acts, not on the gravity of the malign intentions that lie behind those acts. What I have not shown is how the principle of mental impunity might itself be derived from a more fundamental principle of justice. I will attempt to do so in this brief final section.

Given how often criminal theorists associate the act requirement with a principle of freedom of thought, it is somewhat surprising that none has formulated such a principle with any specificity, let alone bothered to show how the act requirement can be

86 Other statuses might be neutral background conditions for some people but not for others, which means that certain possession

offenses might criminalize mere intent sporadically. Consider Section 543r of the Michigan Penal Code, which provides that “[a] person shall not . . . possess a blueprint . . . of a vulnerable target [defined to include any building or structure open to the general public], with the intent to commit an offense prohibited [by the Michigan Anti-Terrorism Act].” M.C.L.A. 750.543r(1). For a civil engineer, Section 543r may create a crime of mere intent.

87 Commonwealth v. Jones, 355 Mass. 170, 176, 243 N.E.2d 172, 176 (1969). 88 Among the items that courts have considered burglar’s tools are soap, a kitchen knife, a sponge, rubber gloves, a wrench,

batteries, a candle, charcoal, a clock, cotton, an extension cord, adhesive tape, a flashlight, a funnel, a hammer, a needle, pliers, a razor blade, scissors, a screwdriver, toothpicks, tweezers, and Vaseline. See Validity, construction, and application of statutes relating to burglars' tools, 33 A.L.R.3d 798 (1970).

89 For a disturbing read, see Memorandum from Office of the Assistant Att'y Gen. to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002) (memorandum by Jay Bybee recommending extraordinarily narrow definition of “torture”).


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derived from such a principle. Perhaps some theorists assume that the derivation is just obvious, or that there is so little conceptual space between the act requirement and the right to freedom of thought that any derivation would be uninteresting. The prevailing assumption among theorists who associate the act requirement with freedom of thought may be that the maxim cogitationis poenam nemo patitur (“no one may suffer punishment for mere intent”) is not a consequence but a component of the broader principle of intellectual freedom that grounds the familiar constitutional protections of expression and belief. I find this assumption puzzling. The usual liberal reasons for granting impunity to a person’s cognitive (belief-like) mental states do not seem to recommend granting impunity to a person’s conative (action-directed) mental states, such as her intentions and decisions. Perhaps it could be argued (although I do not see how) that a citizen’s freedom to form malign intentions is essential to the pursuit of truth in a democratic society. But I will not attempt such an argument here. Rather, I propose to ground mental impunity in a right of mental self-management: a right to be free from forcible interference in the regulation of one’s mental states. (I am neutral on the question whether this right of mental self-management bears some connection to the right of intellectual freedom that undergirds the constitutional protections of expression and religion. The two rights ultimately may spring from the same source. But I do not explore that possibility here.)

I assume that everyone has a fundamental right to control the contents of his mind. The U.S. Supreme Court recognized such a right in Stanley v. Georgia when it struck down a state statute “forbidding mere private possession of [obscene] material”90 on the ground that “[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”91 The Court recognized the same right again in Ashcroft v. Free Speech Coalition when it struck down a federal statute prohibiting visual depictions of “an actor [who] ‘appears to be’ a minor engaging in ‘actual or simulated . . . sexual intercourse’”92 on the ground that “[t]he government ‘cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.’”93 It is notable that the Court cited a prohibition on mind-control to justify striking down statutes that have no direct effect on a person’s thoughts. These statutes stand in contrast to such immediate and forcible efforts at mind-control as brainwashing and the administration of unwanted mind-altering drugs. The lesson is that rights invasions can be either direct or indirect. I invade a right of yours directly when I prevent you from exercising it. I invade a right of yours indirectly when I make your exercise of the right unreasonably burdensome. A threat to fine someone for speaking is an indirect invasion of his right to speak. Taping his mouth shut is a direct invasion. The rights invasions at issue in Stanley and Free Speech Coalition evidently are indirect. By

90 394 U.S. 557, 564 (1969). 91 Id. at 565. 92 535 U.S. 234, 241 (2002) (quoting 18 U.S.C. § 2256(2)). 93 Id. at 253 (quoting Stanley v. Georgia, 394 U.S. 557, 566 (1969)).


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punishing someone for viewing simulated child pornography, the state does not forcibly prevent him from exercising his right of mental self-management. Yet it invades that right all the same, by threatening him with unwelcome consequences should he engage in conduct likely to yield what the state regards as an undesirable state of mind.

Imposing punishment for that undesirable state of mind itself, rather than for conduct likely to produce it, would seem an even clearer invasion of the right to mental self-management, albeit one that is still indirect. Condemning and sanctioning someone for his mental states does not amount to an immediate and forcible interference with his right to control the contents of his mind. Yet it seems to violate that right nonetheless. This can be demonstrated with a short argument. Assume that, if the state may criminalize and punish some transgression, then it may forcibly interrupt someone in the midst of committing that transgression. This assumption reflects what I take to be a highly plausible general principle of criminal justice. Call it the Enforcement Principle. Like any conditional, the Enforcement Principle entails its converse: if the state may not use force to interrupt someone in the midst of committing some transgression, then it may not criminalize and punish that transgression. But recall our starting point, the precept that the state may not interfere forcibly in the management of one’s mental states, for example, by exposing one to a psychotropic gas that disrupts the formation of violent intentions. From this precept and the converse of the Enforcement Principle, the substantive act requirement follows: the state may not criminalize and punish unexecuted thought.

Thus concludes my derivation of the substantive act requirement from the right to control the contents of one’s mind. I admittedly do not defend the premise that such a right exists—any more than proponents of Blackstone’s Principle defend the premise that a state may punish only what it can prove to a high degree of certainty, or proponents of an autonomy-based rationale defend the premise that a state must respect the moral autonomy of potential wrongdoers. Nor do I defend the assumption that the right to mental self-management is categorical, in other words, that there is no mental state that the government may interfere with forcibly. If there really is a fundamental moral right to control the contents of one’s mind, I cannot make sense of how the right could encompass certain mental states and not others. If I am right about this, then the prohibition on impermissibly burdening the right to control one’s mind is categorical as well: there is no mental state that the government may criminalize and punish.

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