Criminalization of non-criminal behavior and examples of bad behavior and misjudgement is pushing Hamilton County into a jail funding and jail crowding crisis, the pressure of which is intensifying.
The judicial industrial complex feeds a host of trades, including the attorney cartel, and has many reasons to continue the status quo in the name of profit and self-interest.
By David Tulis / Noogaradio 92.7
But the interests of Justice suggest a different direction, one that would create an overcapacity of space in the broken-down county jail downtown and at the Silverdale correctional facility in Brainerd.
In July 2015 Hamilton County took a major step in recognizing the overcriminalization problem. Courts, public defenders, mental health groups and local charities such as CADAS and Community Kitchen worked to organize what is called a mental health court. This diversionary arm of the judiciary rescues defendants from the standard operating procedures of the complex that grinds down the poor, the black, the ignorant, the addicted and the disturbed.
Don Poole, judge of criminal court, and Lila Statom, judge of the county corporation’s sessions court, are involved in handling the mental health court that has saved F$3 million in court costs in the past two years.
Like many problems that face people in Chattanooga, the solution to jail overcrowding and the problem of criminalization of innocuous human activity is local and personal.
Another wonderful local economy solution
These two judges could lead the judiciary in reinstating an important legal principle that is a protection of the people of Tennessee against arbitrary and capricious government and law enforcement abuse.
That is two words.
That two words are criminal intent.
State law requires proof of what it what is called “culpable mental state.”
I would like to suggest that a major reform in the judicial system lies in their hands and that by their bold actions they could reduce the intake of the system at the front end. The “front end” is manned by police officers in Chattanoga, Red Bank, East Ridge and Soddy-Daisy and deputies of the Hamilton County sheriff’s department.
The riveting reform would be simple: That the judges refuse to consider any criminal case brought before them unless the members of the fellowship of the finger — cops, district attorney Neal Pinkston — aver that they are including criminal intent as one of the elements of the charge.
‘Intentionally, knowingly or recklessly’
Criminal intent is a fruit of the gospel in that it identifies the internal and private motivation and state of culpability of the accused. Christianity has a concern about the inner state of man, not just his outward acts. The law of equity requires intent in a killing for such an act to be a capital offense, distinguishing murder from manslaughter in the example about the axe head that flies off the handle and kills a woodsman (Deuteronomy 19:4-6). So, in a Hamilton County murder trial, the accusers have to prove intent to kill.
Intent is the state of mind of the accused. The guild of lawyers who make their living off of the grinding operation of law against the people and against the occasional real criminal, rarely argues intent as a defense in “low level” cases.
But intent is an important defense in every case in which a crime is alleged.
This point is clear from provisions in the Tennessee criminal code, TCA 39-11-301.
39-11-301. Requirement of culpable mental state.
(a) (1) A person commits an offense who acts intentionally, knowingly, recklessly or with criminal negligence, as the definition of the offense requires, with respect to each element of the offense.
(2) When the law provides that criminal negligence suffices to establish an element of an offense, that element is also established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish an element, that element is also established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, that element is also established if a person acts intentionally.
(b) A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element.
(c) If the definition of an offense within this title does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state. [bolds, italics added]
This passage covers “offenses” in general and says that the intent element applies even if not explicitly stated. Intent is outside the scope of the charge only if the particular statute makes the law one of strict liability.
Sometimes the general assembly repeats the intent rule in defining crimes.
➤ In criminal conspiracy, an element of the crime is each participant “having the culpable mental state required for the offense” (TCA 39-12-103. Criminal conspiracy)
➤ Criminal “attempt” is a distinct crime that occurs BEFORE an actual or real crime, and the law says the enactment of the crime is not a defense against the charge of criminal attempt. “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: (1) intentionally engages in action or causes a result that would constitute an offense, if the circumstances surrounding the conduct were as the person believes them to be” and “acts with intent to cause a result” and “acts with intent to complete a course of action” toward a particular offense. (TCA 39-12-101. Criminal attempt)
End judicial anarchy, illusion of justice today
Judge Poole and judge Statom are to be commended for their efforts to bring about the mental health court and to sit over its 150 cases to date. The mental health court suggests that the legal and political establishment, finding something of its own soul, is willing to consider mercy and alternatives to the process of accusation and plea bargaining, which is the main operation of courts today.
The only excuse they can give is that they are bound by precedent of earlier cases, or stare decisis. But such a defense would be pure legal baloney. Judges are bound by the constitution and TCA 39-11-301. They are bound by their oaths of office before God and the rules of judicial ethics. It doesn’t matter how many times previously a true and just rule has been ignored by other judges.
As we have suggested elsewhere, reform of these brutal systems is at hand and requires diligent self-sacrifice by the participants. We have held up Hanson Melvin in the walking while black police abuse case as an example of a local economy solution to corrupt courts. Mr. Hanson, falsely arrested and the victim of an unprosecuted series of state actor perjuries, insisted on his right to an indictment. He lived out the local economy ideal of standing up for his rights and seeking a personal solution rather than compromise with the district attorney and enter a plea bargain.
In the case of the severely burdened dockets of criminal and sessions courts, the judges can stanch the flow of petty defendants whose lives are perhaps already overwhelmed by poverty, ignorance, bad decisions, mental health problems, the burdens of sin and the weight of human flesh and frailty on their worn bones.
They can do so by insisting that the fellowship of the finger — again, cops, deputies and the state’s perpetual accuser, the district attorney — affirm that they plan to argue intent with each revoked license or disorderly conduct case. Judges Poole and Statom should warn Mr. Pinkson: “If you bring me one more case without intent I will hold you in criminal contempt.” Since usually intent is not anywhere in sight and is impossible to prove, that requirement will sharply reduce the judges’ workload and, within six months, will reduce the jail population by half.
Deuteronomy 19:4-6 and the guilty mind requirement:
And this is the case of the manslayer who flees there, that he may live: Whoever kills his neighbor unintentionally, not having hated him in time past — as when a man goes to the woods with his neighbor to cut timber, and his hand swings a stroke with the ax to cut down the tree, and the head slips from the handle and strikes his neighbor so that he dies — he shall flee to one of these cities and live; lest the avenger of blood, while his anger is hot, pursue the manslayer and overtake him, because the way is long, and kill him, though he was not deserving of death, since he had not hated the victim in time past.
TCA 39-11-302. Definitions of culpable mental state.
(a) “Intentional” refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the conduct or cause the result.
(b) “Knowing” refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.
(c) “Reckless” refers to a person who acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.
(d) “Criminal negligence” refers to a person who acts with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.