RE: Mens rea of political leaders / Hoover's guilt

["David Shemano" <dshemano@xxxxxxxxxx>]

In reply to Charles:

<<<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.>>>

This is not correct.  The "actus reas" is generally the same for
recklessness and negligence (this is not quite true, but the line is very
blurry).  The real difference is the mens rea.  In order to be reckless, you
must subjectively be aware of the risk that you are creating.  In order to
be negligent, your subjective awareness is irrelevant.

<<<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.>>>>

For the reason stated above, at best you could find Hoover guilty of
negligence, because he was not consciously aware of the risk that he was
creating.  However, I agree that he was negligent -- the man dramatically
raised taxes in the middle of a depression! :)

<<<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">>>

Again, to be reckless, you must "consciously disregard" the risk.  In other
words, you must be subjectively aware of the risk.  If you are not, and even
if the "unawareness" is improbable, you can only be guilty of negligence.
If I were to drive a car into a crowd of people, and could convince the
trier of fact that I did not realize that there was a risk people would be
hurt, I could only be convicted of negligent homicide.  Of course, who is
going to believe me?


<<<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.>>>

Lenin ordered the taking of food peasants were growing for their own
subsistence.  If I was sitting on the jury, that is blindly running a red
light or worse.

David Shemano