The term ‘actus reus’ refers to the physical component of the crime, while ‘mens rea’ addresses the mental aspect of the offence. Situations, when the alleged perpetrator has the actus reus, but lack mens rea can be different, and a solution depends on the constituent components of a particular crime. First of all, strict liability offences and a range of other offences that differ across statutes and common law under different jurisdictions do not require proving mens rea. Strict liability often refers to minor offences (e.g., selling alcohol to an under-aged individual), where it is hard to determine the mens rea. If the formulation of a statute requires mens rea, the case will be different. If no mens rea can be proved, an alleged perpetrator cannot be convicted, because mens rea constitutes an essential component of the crime.
The most common case is that the mens rea does not reach the level, required to prove a specific crime. In this case, lesser charge is often considered. For instance, in case State of Florida v George Zimmerman (2013), the defendant was initially accused of second-degree murder. However, the prosecution did not succeed to prove a particular level of defendant’s disregard for human life, required under the formulation of the second-degree murder. That is why, following the guilty verdict of the jury, Zimmerman was charged with a less serious crime (manslaughter).
Legislative (parliamentary) immunity refers to an absolute immunity from all kinds of liability, granted to legislators, with regard to possible omissions, emerging in the course of their legislative activities. Diplomatic immunity refers to diplomats, who are not susceptible to the laws and regulations of a host country. The major differences between the concepts are as follows. First, while legislative immunity refers solely to parliamentarians, the diplomatic one is designed for diplomats. Second, while legislative immunity has an absolute nature, diplomatic immunity means being not susceptible to responsibility under the law of a diplomat’s host country, but not in general. Third, the above types of immunity stem from different sources of law. While legislative immunity tends to be provided in the domestic legislation of a host country, the key source of law, regulating the diplomatic immunity, is the Vienna Convention on Diplomatic Relations.
Arguing that the diplomatic immunity is vital to all the U.S. citizens abroad is not right, because not all the citizens of the U.S. are diplomats. However, quality implementation of the diplomatic service-related duties requires diplomatic immunity. It helps to ensure that a diplomat is not prevented from implementing his duties through a detention or criminal conviction. Furthermore, diplomatic immunity helps ambassadors to leave a host country without considerable difficulties in case of tensions between the country of a diplomat works for and his host country. The ‘dark side’ of diplomatic immunity deals with the fact that diplomats often remain unpunished for crimes they commit abroad, such as mistreating domestic workers or exceeding the allowed speed of driving.
The question of whether an individual needs to possess a certain level of competency in order to be sentenced often arises with regard to sentencing in criminal law and touches upon the broader question of what is ‘competency’ and when it is ‘questionable’ (Roesch et al, 1999, p.1). In the most general terms, legal competency can be addressed as an individual’s mental ability to take part in legal proceedings, including an individual’s mental condition to bear responsibility for his/her actions (Roesch et al, 1999, p.1). In legal scholarship, competency to be sentenced is defined as a specific type of legal competency that is related to one’s ability to freely participate in the sentencing part of the trial and possess an understanding of the scope of respective charges and the implications of a sentence.
The general standard of competency to be sentenced was set by the U.S. Supreme Court in the landmark case Dusky v United States (1960) (Roesch et al, 1999, p.1). The standard, set in the above judgment, consists of two components. First, in order to hold the competency to be sentenced, an individual needs to have an ability to consult with his/her lawyer, manifesting a reasonable degree of rational understanding. Second, an accused is expected to hold rational and factual understanding of the proceedings against him/her. Noteworthy, since different types of competence are applied with regard to the different stages of criminal proceedings, and the application of the Dusky v United States minimal guidelines to the sentencing part of the trial is not true for all the jurisdictions.
In the vast majority of the cases, the doubts regarding one’s competency to be sentenced do not arise. However, in case such doubts arise and there is sufficient evidence to consider individual’s competency questionable, a judge may order a competency evaluation to be conducted in a hospital by psychologists or psychiatrists. The most common method to evaluate one’s competency is the application of the Competency Screening Test that aims to identify the defendants, who are doubtlessly competent. In case an accused is considered to be competent to be sentenced, the trial proceeds. However, if an evaluation reveals that an individual lacks respective competency, he/she will be transferred to a specialized institution to restore competency before the sentencing phase of a trial (if that is possible) (Roesch et al, 1999).
The overview of the standard procedure that takes place in case of doubts regarding one’s competency to be sentenced demonstrates that the establishment of the questionable competency tends to be followed by one’s examination. Given the fact that the competency standards usually tend to be unified and not refer to the different levels of competency, the establishment of questionable competency does not result in the application of specialized competency standards. Instead, it is required to clarify whether the defendant is competent or not. Thus, the scope of the notion ‘questionable competency’ prevents a court from applying usual competency standards and proceeding with sentencing and individual. In my opinion, it is right to abstain from sentencing individuals with questionable competency. First, it is required to establish whether an individual is competent to be sentenced or not. Based thereon, the question regarding the application of particular standards is to be decided.
Traditionally, scholars distinguish four major goals of criminal law. They include retribution, deterrence, incapacitation and rehabilitation (Gardner and Anderson, 2011, p.9)
Retribution is considered to be one of the oldest and, at the same time, most controversial goals of criminal law in general and punishment in particular. Multiple written sources, produced centuries ago, stipulate that willingness to revenge following someone’s harmed an individual is natural. However, instead of thinking about a revenge himself or herself, the members of a society tend to transfer the retribution function to the government that applies criminal law as a tool of retribution. Such transfer provides a number of advantages, dealing with the introduction of the ‘beyond the reasonable doubt’ standard and the uniform application of criminal law (Gardner and Anderson, 2011, p.9). Moreover, the retributive function of criminal law protects alleged perpetrators (whose guilt was not proved by the court) from the actions of victims, aimed at retribution. It also protects both alleged and actual perpetrators from excessive violence of those, willing to revenge.
At the same time, the presence of the strong retributive function of criminal law is likely to prevent individuals from committing crimes, because they fear to be punished. Thus, retribution protects the public good in three major ways. First, it protects alleged perpetrators from the revenge being taken by the victims of crimes or their relatives. Second, it protects both alleged and actual perpetrators from excessive violence, demonstrated by the victims or other individuals. Finally, the retributive goal of criminal law serves the aim of preventing individuals’ involvement into criminal activities.
Second, criminal law performs the deterring function. In other words, it prevents individuals from committing offences. The deterrence function can be considered two-fold. On the one hand, the idea of being punished for crimes fears individuals, who did not commit any unlawful acts, but could potentially do so, not being stopped by moral concerns. Second, the deterrence function of criminal law targets individuals, who already committed crimes and were punished, playing the role of a ‘specialized prevention’ tool. Thus, deterrence protects public good, but does not prevent innocent individuals from being punished.
Third, incapacitation refers to the fact that long-term imprisonment helps to prevent crimes’ being committed by habitual criminals. The effects of this function are doubtful due to the fact that the incapacitation tends to disregard the idea of rehabilitation (Gardner and Anderson, 2011, p.11). Nevertheless, in theory, incapacitation helps to physically prevent future crimes’ being committed by habitual criminals and, thus, protects public good.
Finally, rehabilitation refers to the set of means that are applied to convicted individuals and those, who underwent imprisonment to support their re-integration into society and prevent them from committing crimes. Due to its positive prevention effects, former criminals’ reintegration into a society and rehabilitation definitely serve the public good and help to diminish the crime rates in a society.
References
Gardner, T.J., Anderson, T.M. (2011). Criminal Law. Mason: Cengage Learning
Roesh, R., Zapf, P.A., Golding, S., Skeem J. (1999). Defining and assessing competency to stand trial. Retrieved from https://pdfs.semanticscholar.org/c8fc/fa0d5f0b8c037b457236b6688a30c87232f1.pdf
