As criminal law developed in the 20th century, American Jurisprudence moved further and further away from common law principle that a crime consisted of two elements, a guilty deed [Actus Rea ]plus a guilty mind [Mens Rea]. The requirement of an act is one that is evidence of a choice being made and choice, of course, brings into question the state of mind (drug induced, emotion induced, medical/psychological aspects). In an effort to make the criminal justice system more uniform and predictable, judges and legal theorists sought to marginalize the element of "intent". They sought to blur the lines between criminal law and civil law by minimizing, or eliminating altogether, the requirement of mens rea.
The present boom in incarceration should be brought to a screeching halt. Policymakers ought to declare a moratorium on prison construction and a diversion of funds into probation and parole programs. They should sharply reduce caseloads and greatly increase the level of supervision and support of those on probation and parole. Other government revenues presently eaten up by prison building and operating budgets should be diverted to public education, drug and alcohol treatment and education, affordable housing, early intervention with struggling families and at-risk children, and living-wage job development.
Adequate funding for such programs would greatly reduce the factors that contribute to crime. Poor and remote counties should refuse to let state and federal governments and private companies persuade them that prison construction somehow is community economic development. Prisons are damaging to the spirit and gradually destroy community.
From a restorative-justice perspective, the victims' rights movement is a good thing since it insists on fair and respectful treatment of crime victims by the agents of the criminal-justice system. But it often fails to go far enough, sometimes running the risk of being so revenge-oriented that.....
