Over at the Volokh Conspiracy, Orin Kerr has a post up, the polling data of which purportedly show that liberals are more willing to set aside the clear text of the law in order to reach a result which is not cruel and awful. Orin and I agree that non-deportation is the "compassionate" response; I disagree with his assertion that there is "no doubt" that deportation is the correct legal answer.
Basically, a guy named Pierre committed a crime, then attempted to kill himself by drinking battery acid. To keep living, he now requires constant medical care and tube feeding. He served his 10-year prison sentence, and the INS deported him to Haiti.
The basic question is whether a court can keep him here (the en banc Third Circuit said "no"). The only law which can keep him here is the Convention Against Torture, which forbids deportation to a country where person probably faces torture. "Torture" must be
Pierre argues, and we assume to be true, that if he's sent back to Haiti he will detained indefinitely in prison. Facilities can't provide him with the medical care he needs, and he will painfully starve to death over a course of days or weeks.
Orin's poll asks the reader to be the judge and decide whether the INS gets to send him to Haiti, or whether he gets to stay here; it also asks which side of the political spectrum the reader's beliefs or preferences generally fall on. As it turns out, more liberals than conservatives would keep Pierre here; more conservatives than liberals would send him off to die an agonizing death.
Here's where it gets interesting: Orin insists in the comments that it should be perfectly clear to any 1L enrolled in criminal law that the pain and suffering are not, as the statute requires, intentionally inflicted on Pierre. Haitian officials will not intend to cause Pierre to suffer, Orin argues, and therefore the requisite intent is lacking -- in other words, it's not torture.
Right now I'm consulting my Criminal Law Nutshell, which informs me, "General intent is an extraordinarily esoteric concept. It is usually employed by courts to explain criminal liability when a defendant did not intend to bring about a particular result." Well that's even more than less than unhelpful; what does it mean? I don't know, but I certainly think it applies to intentionally not giving a person the medical care he needs to stay alive, even if you wish that he somehow magically won't die.
Further, under the Model Penal Code, "intent" is not even a state of mind. Instead, there are the options of purposeful, knowing, reckless, and negligent conduct. We either fall into the first or second category: "a defendant acts purposely when he consciously desires his conduct to cause a particular result, knowingly when he is aware that his conduct is practically certain to cause a particular result," etc.
My understanding is that in people are generally presumed to intend the results which they know are certain to result from their actions. Here, a painful death, which constitutes torture. Orin, in contrast, seems to think that they have to subjectively want him to die. One thing, I think, is inarguably clear: because the intent question is an arguable, difficult question, we absolutely cannot say that liberals deciding to let Pierre go are playing fast and loose with precedent in order to reach the compassionate result. If the legal rule were clear, as he says, than this would be the case -- but it is not. Second, if intent means what I think it means, then the data in fact suggest the opposite: not that liberals are prone to create false ambiguity, but that conservatives are prone to create false certainty.
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