Conditional intent and mens rea

Legal Theory

Volumn 10, Issue 4, 2004, Pages 273-310

  Yaffe, Gideon ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 84925198489     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232520404025X     Document Type: Article

References (27)

1. More than just intention is almost always included in the mens rea conditions of an act. A delusional person, for instance, might intend to kill while failing to possess the mens rea of murder. Our purposes here, however, do not require distinguishing between the overall mens rea conditions of an act and its intent requirements.
2. This form of argument was honored in State v. Morgan, 38 Am. Dec. 714 (N.C. 1842); Hairston v. State, 54 Miss. 689 (1877); Stroud v. State, 95 So. 738 (Miss. 1923); Craddock v. State, 37 So. 2d 778 (Miss. 1948); United States v. Rushlow, 2 U.S.M.C.A. 641 (1953 CMA); United States v. McLean, 11 C.M.R. 755 (1953 CMR); State v. Kinnemore, 295 N.E.2d 680 (Ohio Ct. App. 1972); State v. Irwin, 285 S.E.2d 345 (N.C. Ct. App. 1982); and United States v. Randolph, 93 F.3d 656 (9th Cir. 1996). Arguments of this form were rejected in Thompson v. State, 36 S.W. 265 (Tex. Crim. App. 1896); People v. Connors, 97 N.E. 643 (Ill. 1912); Beall v. State, 101 A.2d 233 (Md. Ct. App. 1953); Shaffer v.United States, 308 F.2d 654 (5th Cir. 1962); Commonwealth v. Richards, 293 N.E.2d 854 (Mass. 1973); United States v. Arrellano, 812 F.2d 1209 (1987 U.S. App.); People v. Vandelinder, 481 N.W.2d 787 (Mich. Ct. App. 1992); United States v. Anderson, 108 F.3d 478 (3d Cir. 1997); United States v. Norwood, 948 F. Supp. 374 (1996 U.S. Dist.); United States v. Lake, 972 F. Supp. 328 (1997 U.S. Dist.); United States v. Romero, 122 F.3d 1334 (1997 U.S. App.); and Holloway v. United States, 119 S. Ct. 966 (1998).
3. S. Ct. 966 (1998).
4. The Supreme Court was responding in part to a decision made by the Court of Appeals for the Ninth Circuit in United States v. Randolph, 93 F.3d 656 (9th Cir. 1996). In that case, Randolph was one of a group ofmen who threatened to kill a woman if she refused to hand over her money and her car. She complied, and later, after Randolph had left believing the woman to have been released, his accomplices assaulted her. The lower court's ruling, overturned by the Ninth Circuit's decision, confounded Randolph's conditional intention to injure the woman if she did not comply with his demands with his accomplices’ unconditional intention, on which they acted, to injure the woman. The Ninth Circuit's Court of Appeals argued that the only relevant question was whether or not Randolph's conditional intention was sufficient for intent to cause the woman serious injury; he was not to be implicated in his accomplices’ independent plans to harm the woman. They then honored the form of argument under consideration here and overturned the lower court's conviction.
5. Cf. United States v. Anderson, 108 F.3d 478 (3d Cir. 1997). The court also takes this approach, among others, in Holloway, 119 S. Ct. 966 (1998). To take this approach is to focus on the question of whether or not premise 1 is true. As we shall see, there is another question that one can take to be posed by premise 1.
6. W.R. LAFAVE & A.W. SCOTT, Jr., HANDBOOK OF CRIMINAL LAW 200, 613 (1972).
7. Cf. Holloway; United States v. Arrellano, 812 F.2d 1209 (1987 U.S. App.); United States v. Anderson, 108 F.3d 478 (3d Cir. 1997); United States v. Norwood, 948 F. Supp. 374 (1996 U.S. Dist.); and United States v. Romero, 122 F.3d 1334 (1997 U.S. App.).
8. Courts have sometimes gotten confused about this point. A British court in Regina v. Easom, 2 QB 315 (1971), for instance, accepted the Mere Conditional Intent argument when the evidence showed only that the defendant had an intention that was subject to conditions, not that he had a genuinely conditional intention. Easom picked up a woman's handbag, looked inside, and found there to be nothing of value in it, at which point he put it back where it was. He was charged with attempted theft-an offense that requires the intention to steal-and argued that he did not intend to steal the handbag, he only intended to steal it if it contained something of value. The court honored the argument and acquitted Easom. However, to note the condition governing Easom's intention was simply to note that he would abandon his intention to steal the handbag if he discovered he had no reason to act on it. This does not mean that he lacked the intention to steal the handbag but, rather, implies that he had it, or had an intention functionally equivalent to it. In his dissenting opinion in Holloway, Justice Scalia seems to suggest that the majority is committed to treating every intention that is subject to conditions as though it were sufficient for mens rea. In a similar vein, although with the opposite import, in Holloway v. United States: Conditional v. Unconditional Intent to Kill, 51 MERCER L. REV. 959 (2000), Michael Douglas Owens praises the court for its decision on the grounds that in light of the decision, defendants cannot be acquitted on the grounds that their intentions are subject to conditions. The issue is discussed with much greater sophistication in J.P.W. Cartwright, Conditional Intentions, 60 PHIL. STUD. 233-255, 236-240 (1990). See also John Finnis, On Conditional Intentions and Preparatory Intentions, in MORAL TRUTH AND MORAL TRADITION: ESSAYS IN HONOR OF PETER GEACH AND ELIZABETH ANSCOMBE 163-176, 164 (L. Gormally, ed., 1994).
9. JACK W. MEILAND, THE NATURE OF INTENTION 15-25 (1970), proposes a test for determining whether or not a particular condition enters into the content of an intention in the special way that is distinctive of conditional intention. For discussion, see Finnis, Courts have sometimes gotten confused about this point. note 10, at 165-167.
10. For discussion, see, e.g., Donald Davidson, Intending, in ESSAYS ON ACTIONS AND EVENTS 93-96 (1980).
11. For our purposes, an instance of (*) is trivial just in case the value placed in the blank entails the consequent of (*) independently of the truth or falsity of the claim that the agent has a conditional intention to A if X. Such an account does not tell us the conditions under which a conditional intention is enough for mens rea since it identifies conditions sufficient for the unconditional intention even in the absence of the conditional intention.
12. In fact, as Michael Bratman has pointed out to me, even this could be questioned. Imagine an agent who conditionally intends, say, to change his tire if it should be punctured in his drive across a bed of nails, believes that the tire will be punctured, but also intends to do everything in his power to prevent the puncture. This person's complex mental state plays a motivational role and a role in his practical reasoning (if he is rational) quite different from that of a person who unconditionally intends to change a tire. Still, if it is false that the relevant conditional intention and belief play the same motivational role as an unconditional intention, then efforts to respond to the Mere Conditional Intent argument by invoking something like (**) are weaker even than is suggested in the main text.
13. One might resist this conclusion on the grounds that if an agent does A intentionally, then the agent previously intended to A. This is what has become known in the action theory literature as “the simple view” of the relation between intentional action and prior intention. As attractive as the simple view is, it is also false. See MICHAEL BRATMAN, INTENTION, PLANS AND PRACTICAL REASON 111-138 (1987). For a valiant effort at defense of the simple view, see Hugh McCann, Settled Objectives and Rational Constraints, AM. PHIL. Q. 25-36 (Jan. 1991).
14. One might argue that because the conditional intention, when coupled with the belief that the condition obtains, plays the same motivational role as a corresponding unconditional intention, it is just as bad as the unconditional intention and is therefore sufficient for mens rea. This would be to adopt an approach of the same general sort as that discussed in Section II.
15. We might insist that even though there is no decisive evidence that the defendant with the conditional intention and belief had an unconditional intention, it is nonetheless likely that he did. This would be to insist that (**) is usually true or true of most people and most actions and conditions. However, notice that nothing in the argument just offered against a court's appealing to (**) turns on (**)'s being thought true without exception. So the same argument can be offered against someone who claims (**) only to be likely enough to support the claim that various defendants have the relevant unconditional intention.
16. Cartwright, We might insist that even though there is no decisive evidence that the defendant with the conditional intention and belief had an unconditional intention, it is nonetheless likely that he did. note 10, at 247-248, offers a test that is functionally equivalent to this test. Instead of considering whether or not the evil the law is intended to prevent would occur if the condition were satisfied, Cartwright confines his test to the question of whether or not themens rea conditions of the crime are satisfied if the condition obtains. As will become clear from the discussion below, Cartwright's test succeeds no better than the Model Penal Code's.
17. In conversation,Herbert Morris has suggested to me that the framers of the Model Penal Code do not have this formal test in mind, despite the fact that the courts have treated the Code as though it were proposing this test. In the Model Penal Code's discussion of attempted crimes, for instance, it is never suggested that an agent with a merely conditional intention like Holloway's could be said to be engaging in an attempted crime. This implies that the Code is inconsistent in its treatment of cases of this sort. So, suggests Morris, the Code's remarks about conditional intention should be given much less emphasis in the interpretation of the Code than the court has given them. Although Morris is probably right about the intentions of the framers of the Model Penal Code-they probably did not intend that so many conditional intentions be thought sufficient for purpose-there is nothing else in the Code that can be used to determine which conditional intentions are and are not sufficient, and so it is not so unreasonable for the courts to have extracted this test from the Model Penal Code.
18. Notice that it would not help to insist that the majority has misidentified the purpose of the law against carjacking. It is always possible to concoct pairs of intentions that will have the same effects-and so will both bring about the evil the law aims to prevent-despite having different and differently objectionable objects. Under the right circumstances, even an intention to take someone's keys can cause or be likely to cause that person's death.
19. Notice that it would be possible for the agent not to perform an act of type C in the relevant possible worlds and yet still, in those worlds, realize the evil the law was intended to prevent. For instance, imagine that P intends and takes steps to kill Q if R's efforts to do so fail. As it happens, R succeeds in killing Q. Is P guilty of attempted murder? In the possible world in which R fails to kill Q, P is not guilty of attempted murder for, we can imagine, he succeeds. Still, in the relevant possible worlds he realizes the evil the law against attempted murder is intended to prevent, namely, the killing of another person. It follows that under the Model Penal Code's test P is guilty of attempted murder. Perhaps that is the right result.
20. For a start, see Donald Davidson, Actions, Reasons and Causes, in ESSAYS ON ACTIONS AND EVENTS 3-19 (1980); Michael Bratman, Davidson's Theory of Intention, in FACES OF INTENTION 209-224 (1999); Wayne Davis, A Causal Theory of Intending, 21 AM. PHIL. Q. 43-54 (1984); J. DAVID VELLEMAN, PRACTICAL REFLECTION 121-126 (1989).
21. BRATMAN, Actions, Reasons and Causes note 15. It is a vast understatement to say that my general remarks here regarding the nature of the commitment involved in intending and the particular rational pressures under which an intending agent labors are influenced by Bratman's views. They are meant, rather, to be merely restating points that Bratman has made.
22. John Fischer and Mark Ravizza have developed this sort of position. Cf. JOHN FISCHER, THE METAPHYSICS OF FREE WILL (1994); JOHN FISCHER & MARK RAVIZZA, RESPONSIBILITY AND CONTROL: A THEORY OF MORAL RESPONSIBILITY (1998).
23. Notice that this point is highly schematic in the following sense: Two parties could agree that intentions place rational constraints on deliberation and disagree about what those rationality conditions are. Take an example that has been hotly disputed by action theorists: We might disagree about whether or not a rational agent who intends to act will be guided in his deliberations by a belief that he will act or merely by the absence of a belief that he will not. Cf. H.P. Grice, Intention and Uncertainty, 57 PROC. BRIT. ACAD. 263-279 (1971); Donald Davidson, Intending, in ESSAYS ON ACTIONS AND EVENTS 83-102 (1980); Gilbert Harman, Practical Reasoning, 29 REV. METAPHYSICS 431-463 (1976); BRATMAN, RESPONSIBILITY AND CONTROL: A THEORY OF MORAL RESPONSIBILITY note 15, at 37-41; VELLEMAN, RESPONSIBILITY AND CONTROL: A THEORY OF MORAL RESPONSIBILITY note 27, at 113-121. The point made so far cuts across disagreements of this sort: If an agent intends to do something, then there exist norms of rationality governing his deliberation that are applicable to him solely by virtue of the fact that he has an intention. To know the relevant norms of rationality is to know what it is to be committed to conduct in the manner involved in intention. A theory of conditional intention, then, will specify the norms of rationality governing the deliberation of an agent with a conditional intention.
24. Both Michael Bratman and Rob Kar have noted in conversation that I am assuming that S1's unconditional intention is not such that S1 would abandon it if X were to obtain. A further question, therefore, remains about the relation between the rational pressures placed on us by intentions that are subject to conditions and those placed on us by, on the one hand, corresponding conditional intentions, and on the other, unconditional intentions that are not subject to the same conditions. The discussion here, however, is limited to conditional intention proper and does not extend neatly to intentions that are subject to conditions that are not properly included in their content. Finnis, Notice that this point is highly schematic in the following sense: Two parties could agree that intentions place rational constraints on deliberation and disagree about what those rationality conditions are. note 10, at 165-170, argues that there is no difference in culpability between having a conditional intention, on the one hand, and an unconditional intention subject to the same conditions, on the other.
25. Recall the earlier suggestion about this example; perhaps the MPC test gives the right verdict only if satisfaction of the condition is constitutive of the nonperformance of the crime in question. (An objection to this suggestion was offered Both Michael Bratman and Rob Kar have noted in conversation that I am assuming that S1's unconditional intention is not such that S1 would abandon it if X were to obtain. note 25.)We are now in position to see why this suggested position is incorrect: What matters to culpability is the deliberation motivating the agent's action. But the question of whether the statement “Murderers cannot inherit their victim's property” is true by virtue of the definition of murder or true by virtue of precedent is irrelevant to the structure of the agent's deliberation. What matters for practical purposes is that it is true, not why it is true. This is why it is a mistake to distinguish between the culpability of the person under our legal system who conditionally intends to kill his uncle and the person with the same conditional intention but who is prosecuted under a legal system in which the illegality of inheritance is part of the definition of murder; the deliberations of these two people are structured no differently.
26. U.S.M.C.A. 641 (1953 CMA).
27. The defendant in United States v. Lake, 972 F. Supp. 328 (1997 U.S. Dist.) threatened to kill the victim if she did not give him the keys to her car, and from all appearances was ready to do so. But while the victim hesitated, he made an effort to grab the keys from her and eventually wrestled them from her grasp. While there is a question whether or not Lake actually had the conditional intention to kill the victim if she did not comply, it seems clear that if he did have that intention, he was still guided by deliberations in which he considered acts incompatible with killing his victim and he was hardly guided at all by deliberations in which he encountered pressure to adopt means to killing her.