01 June 2005

Law and Disorder: Criminal Intent

Two stories in today's NYT provide some interesting perspective on yesterday's decision in the Arthur Anderson matter. One notes that the problem is perhaps that white-collar crime's prosecution structure is inverted from the norm.

White-collar cases are not akin to—and are, in fact, often the opposite of—trials involving murder or bank robbery, where everyone usually acknowledges that a crime took place and merely debate the culpability of a particular defendant. Instead, in white-collar cases, defense lawyers often admit their client's involvement in particular acts, while arguing that no crime ever occurred.

Kurt Eichenwald, "Reversal of Andersen Conviction Not a Declaration of Innocence" (01 June 2005).

Unfortunately, this difficulty is not limited to white-collar crime; it also concerns counterterrorism.

Prosecutors said the two men were recorded by a government informer swearing a formal loyalty oath to Al Qaeda. They were charged with one count of conspiracy to provide material support to Al Qaeda. "Shah committed himself to the path of holy war, to the oath of secrecy, and to abide by the directives of Al Qaeda," according to the criminal complaint filed by prosecutors. "Shah indicated that he understood the oath, and agreed that he would obey the guardians of the oath, namely, Sheikh Osama bin Laden." Dr. Sabir pledged the same oath, the complaint said.

(fake paragraphing omitted for clarity) Note the absence of an overt act—at least insofar as the reporting indicates.1 As a thought experiment, change the context to swearing allegiance to a gang by a couple of scared teenagers. Would we then charge those teenagers with "conspiracy" absent an act that actually provides support to the gang's "illegal" character? Would we then charge those teenagers with "conspiracy" if, instead, they became lobbyists at city hall for gang-sponsored community outreach programs?

This gets us into a real grey area. Orwell invoked "thoughtcrime" as a narrow concept, limited to offenses that might subvert the Party. It is a mistake to broaden that concept too much, and claim that all white-collar crime is just "thoughtcrime," with the connotation that it is no crime at all. It is equally a mistake to ignore the possibility that particular instances of white-collar crime, or of (as the defendants might paint it) reaction to feelings of disenfranchisement by the ruling oligopoly, reflect political disapproval as much as any real "criminal intent." The real problem is that many of the consequences of intent-based accusations and prosecutions occur before the evidence becomes clear. This is certainly a problem with more "traditional" criminal prosecutions, too—there is always that subtle implication that the government wouldn't charge someone if they weren't guilty, and those acquitted escaped on some technicality but are substantively guilty nonetheless—but its relevance is more naked when the object of the alleged offense is more abstract.

  1. Of course, we don't know what else is in the indictment, or what other evidence the government will offer. One would hope that the government has more evidence than appears in this news report. Given the sorry history of counterterrorist prosecutions (let alone arrests) to date, though, there's more than a speculative possibility that it does not. How much more than "speculative" that possibility is is itself speculative—which, in turn, only reinforces my point that "intent" is not a very easy thing to prove.