There has come to be some consensus amongst political scientists and legal theorists that a major source of over-incarceration in the United States is (mostly county) prosecutors filing a significantly increased number of charges against individual arrestees (e.g., committing fraud means getting hit with the charges of mail fraud, bank fraud, wire fraud, computer fraud, and more). This practice is known as “charge-stacking” (see here and here, for example). The basic idea is to guarantee conviction on at least some lesser charges: Risk-averse defendants cop to a lesser plea, even if they could have defended well against the most significant charges. So most people who are prosecuted get convicted on some charges. But so what? Why is this practice bad? I’ve been thinking that the answer to this question lies primarily in the practice’s running roughshod over what we take to be some crucial features of interpersonal moral agency.
I’ve argued here and here that criminal and interpersonal moral responsibility are very different beasts, contrary to most other theorists, who think the former is a subset of the latter. I think charge-stacking brings out another crucial difference between the two that comes out of an examination of the evolved nature of mens rea. The evolution has occurred within the last 120 years in the criminal law, and involved a transition from Motive Mens Rea to Elements Mens Rea.
The former focused on the actual motives of the defendant, so that one could be found guilty only if one had performed a criminal act with an evil motive, i.e., a “vicious will” (Blackstone) or an “evil mind” (Bishop). Defending against a charge, then, required showing a benign quality of will, e.g., that one acted instead out of self-defense, duress, or insanity. This is actually quite similar to what goes on in interpersonal moral responsibility, as I and many others have argued (Strawson 1962, Scanlon 1988, McKenna 2012, Talbert 2012, Arpaly and Schroeder 2014, Shoemaker 2015). When we blame one another in our interpersonal lives, we’re typically doing so in virtue of of what we take to be the blamed agent’s poor quality of will.
But Motive Mens Rea transmogrified into Elements Mens Rea in the criminal law sometime around the end of the 19th century, and it came to be focused solely on four mental features relevant to establishing a “guilty mind”: intent, foresight, disregard of risk, and negligence. Notice that motive disappeared. All that came to matter was essentially that one aimed at some action (or knew about, or foresaw, or should have known), not why one aimed at it. This version of mens rea is what is enshrined in the Model Penal Code.
There were very good reasons for this transition, both pragmatic and theoretical. The main one is that it’s extremely hard for prosecutors to suss out motives, and so becomes extremely hard for them to successfully convict anyone, opening the door to crime with impunity. But a major effect was that it also opened the door for charge-stacking: if we are focused only on the states of mind producing the criminal act, and not on the faulty motives for the production of the act, then we are free to describe “the act” in numerous ways, and so people could be guilty of all of them. That is to say, one can read off of intentional behavior all sorts of criminal descriptions. If I sell you drugs voluntarily, I intentionally sold drugs, but also had possession with intent to distribute, intent to distribute within a school zone, and so forth. In interpersonal moral responsibility, though, where the relevant target is the offender’s attitude toward others, actions are not the main target, and so multiple descriptions of acts performed are blocked. That is to say, if I uttered my insult in order to hurt you, and we prosecute the “in order to hurt” attitude, there aren’t other actions (speaking too loudly, hurting your ears, conjuring up traumatic memories) for which I could be also be the apt target of blame.
This evolution of mens rea means we are not treating criminal defendants as fellow moral agents, which is what we at least aim to do in our interpersonal lives. On its face, this seems bad. The criminal justice system is thus faced with a dilemma: either return to Motive Mens Rea, restoring moral agency but at great pragmatic cost (hard to gain any prosecutorial success), or continue down the present path with Elements Mens Rea, at the cost of significantly immoral treatment of our fellows. I don’t know what the right answer is.