My colleague Ken Levy has published It's Not Too Difficult: A Plea to Resurrect the Impossibility Defense, at 45 New Mexico Law Review 225 (Fall 2014). It's an interesting piece, fun to read, about why we should acquit defendants when, under certain circumstances, the ways they try to commit crimes ensure that they will fail.
Why is this article particularly interesting for this blog? It continues our theme of defending (legally) the cause of those who speak out on their beliefs in the supernatural or paranormal. Professor Levy discusses at pages 265-273 why those who believe they can commit murder or other criminal acts through witchcraft or other paranormal means could be defended through what he calls "causation impossibility." In other words, the defendant thinks it could happen that way, but it can't. Not guilty by reason of the world doesn't work like that.
I understand that those who already think lawyers are hired guns and amoral useless appendages will not see any use in Professor Levy's arguments, just as they may see the Fourteenth Amendment as a technicality. I do see merit in his position, and I see it from the point of view of the First Amendment. There is a great difference between thinking about committing an act, or believing that one can commit an act, and actually committing it. To work out where the line is is difficult, and scholars like Professor Levy are taking on that task. Further, walking down the road of punishing thought crimes, which is what Professor Levy is really warning against, is the stuff of Philip K. Dick's short story Minority Report. It may not just be science fiction. Taken to the outer limits (yes, I know--yet another pop culture reference), I could see an over-eager law enforcement arm using techniques like predictive policing coupled with anticipatory prosecution putting people away for the "great potential" of future terrorism, for example. As we see more and more teenagers and young adults enticed into the arms of terrorist groups, will we hear politicians and policy groups, and concerned citizens ask for just this change?
SSPD (Shameless self-promotion department): he cites my essay on the psychic detective effect at footnote 95.