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Article > Inchoate
Description :: That which is not yet done, is not yet done.
I came across a phrase a few days ago that disturbed me: "conspiring to prepare to assist in [murder]" (referring to someone's lawyer making a public statement on behalf of someone awaiting trial.)

We're fond of this sort of thing. We see conspiracies everywhere, terrorist cells in every city, organized groups in every state. Somewhere, someone is thinking, maybe even planning, something nasty. But it hasn't happened yet. We don't want it to happen -- after all, we're paying for under-cover operatives, stings, raids, satellites, smart nerds behind desks full of random facts, ... shouldn't we be able to prevent crime?

I mean really; what good are laws if we can't prevent the crime from happening? What do I care if my assassin may wind up in jail, or better yet, an electric chair -- I'm still dead! Punishment can't avert all crime. Even with the death penalty available for use by courts under certain circumstances, people still do terrible things for which there is no other punishment than death. They know what they're doing, too. And it's worth it to them. So what do we do? We preempt. We strike first. We intervene before things get out of control.

I hope everyone else wasn't just impressed with the special effects in 'Minority Report' -- or was it what's his head being cute? (I'm a straight guy, I therefore obviously have no opinion on Tom Cruise's physical appearance.) There was a basic lesson to be learned (or at least discussed,) and it wasn't that you shouldn't trust a bunch of naked people in tanks of water. Unless you believe you possess the uncanny and unlikely ability to accurately predict the future, you don't know what's going to happen unless it's actually happened. A crime isn't a crime until it's happened, there's always time to turn away.

But we've done away with that, haven't we; it was too inconvenient a concept. It wasn't comfortable for us to sit by and watch people go through with their plans when we had a chance to intervene. After all, if you wait for the innocent civilian to actually pull the trigger, there's not much you can do to stop the bullet in time. You'll see it coming, and it'll happen anyway. To let someone die when we had a chance to prevent the crime!

I propose only a partial solution today.

The human mind is what's on trial, yes? In a court of law, you are judged based on your assumed personal responsibility, your ability to make rational choices. But we do not claim to know what, exactly, goes on in your head. We can observe input, we can observe output, and we can judge you on how we feel about it. Religiously, your mind is the seat of free will, of the ultimate gift of God -- a black box in which you get to make decisions which will affect the world. Legally, you're free to think whatever you like; you're even free to speak it, so long as your speech doesn't directly hurt anyone (a baseball bat to someone's head is not considered free speech, though it might be art.) You're supposedly free to read, to write, to plan as much as you please. Well, at least you were up until recently. Security researchers have found that publishing your findings on how to break into systems is now more dangerous than they had once thought; just because you haven't done anything illegal doesn't mean we won't come up with laws with which to charge you. This line of reasoning would eventually lead to arrests of, say, presidential security guards who are simply trying to think of every possible vector of attack against which they should protect the president (just because your plans aren't meant to be put into action doesn't mean you haven't written such plans). You've had, and should still have, the freedom to come up with plans -- so long as you don't act on them illegally.

So let's say we have a sniper on a roof, aiming at the president. Is he guilty of killing the president? No, he hasn't fired yet. We'll arrest him anyway. He could be a random citizen meaning to protect the president. He could be an idiot who thinks that using the scope on a gun is a good way of zooming in on the presidential parade (too cheap to buy a set of binoculars?) Maybe he meant to fire, but didn't, because he suddenly had a vision from heaven. Maybe he wimped out. Would we charge a police officer with conspiracy to commit murder for aiming a gun at a citizen? It happens all the time (at least according to my TV) yet we don't see such arrests. It's considered perfectly legitimate, although I've always heard you shouldn't point a gun at anything you don't intend to (or are willing to) shoot. Police officers wouldn't dare shoot without a really good reason, but other citizens might, right? Right, obviously.

I propose we consider the following: if you have initiated an action which has a high potential to harm someone, without being absolutely sure you were still in control of such action, and could abort it in time, then you are liable for the harm that may, or may not, occur.

Examples: you set a timer on a bomb and walk away. You fire a warning shot very close to someone, and the wind could fairly easily deviate the shot into the target. You mail a viral package to someone. You drive a vehicle while drunk.

Non-examples: you start to slap someone. You type up a letter-to-the-editor containing classified information. You put an item that isn't yours in your pocket while in a store. You write a letter to your cousin telling her you intend to kill the president. You buy a gun, go to a presidential rally, and point the gun at said president. A cop points a gun at you. A cop points a gun at the president.

Laws that attempt to prove that something would have happened, had law enforcement officers or citizens not intervened, go beyond their purview. You cannot conclusively prove what would happen in someone's mind. To attempt to do so is a violation of our most private, intimate place. It is a dangerous statement about free will. If courts of law think they can prove we will take action in the future, do those courts really believe us to have free will? And if we do not have free will, are we fit to stand trial? Is the community not then responsible for predicting (accurately, as always) the future and acting accordingly? Or are we automatons who simply punish each other mechanically, deterministically?

I'm sure someone will at least want to salvage some concept of "imminent threat" where preemptive action is justified pragmatically. Or maybe we have these laws so we can arrest people for things they haven't done, just to annoy them or delay them or foil their attempts enough to save the day, even if the charges will inevitably be dropped against them?

Continued at top
Owned by Unordained - Created on 02/14/2005 - Last edited later the same day

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