Mens rea of political leaders / Hoover's guilt

["Charles Brown" <CharlesB@xxxxxxxxxxxxxxxxxxxxx>]

>>> dshemano@xxxxxxxxxx 08/17/01 06:49PM >>>
In reply to Charles:

<<<CB: Isn't the standard that Justice Powell articulated that a person is
presumed to know the necessary and foreseeable consequences of their actions
?  That would be an objective standard.  Focussing on what he knew is a
subjective standard.>>>

In fact, "reckless" is a subjective standard, while "negligent" is an
objective standard.  Look at the Model Penal Code definition -- reckless
requires "conscious disregard," while negligence requires deviation from the
reasonable person standard.

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CB:  I guess it's all a subjective issue in the sense that mens rea examines the mental element in the crime. However, this mental state , in both cases of negligence and recklessness is purportedly judged by an objective (socalled reasonable man , sic) standard.

Hoover could be found to have had reckless disregard for human life by a socialist economic evaluation of the objective necessary and foreseeable consequences of capitalist economic practices.  In other words, using a Model Penal Code and U.S. jurisprudence analysis grid, we could still find Hoover guilty.

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<<<CB: Being consumed with trying to figure out what to do would not
necessarily mean that he was not reckless. He could still "consciously
disregard a substantial and unjustifiable risk that the
material element exists or will result from his conduct. ">>>

For purposes of murder, reckless requires a conscious disregard that
manifests an indifference to the value of human life.  Hoover may have been
wrong, he may have been stupid, he may have been incompetent, but I doubt
very heavily that Hoover ever for a moment thought that choosing policy A as
opposed to policy B would result in a death, and then chose policy A.


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CB: I think this is where you are mistaken in applying the Model Penal Code analysis to Hoover in the manner of " Hoover thought that choosing policy A .... etc.  The Model Penal Code analysis of someone who drives a car into a crowd of people doesn't look to see "what the driver thought" . It uses an objective standard as to what is reckless disregard of human life in that instance. Similarly, Hoover's actual thoughts are not relevant, whether he actually thought "driving this economic "car" into this crowd will likely kill a bunch of people, but I am going to disregard that likely consequence" is not the analogous way to apply the Model Penal Code approach to a political leader. "Objectively ,
is this policy a reckless disregard of the history of the way capitalism effects people would be the analagous test"

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<<<CB: The legally pertinent fact in the case of Lenin , and perhaps Stalin,
is a war and civil war circumstance or context.  Lincoln's policies were a
but for cause of many deaths during the Civil War, but the law recognizes
that Civil War as having a legally mitigating effect.>>>

This is only half true.  Yes, war was Lenin's justification and war
justifies many things.  But just because you are in an out of the ordinary
context, does not mean that everyting you do is necessarily justified.  I
mean, if my wife is about to give birth, I might be justified in speeding,
but I am not justified in blindly running red lights and going the wrong way
on one way streets.

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CB: 7/8's true. I didn't say "everything you do is necessarily justified".  Lenin never did anything analogous to blindly running red lights, etc.