When Does A Thought Become A Crime?

In a report on “Cannibal Cop” Gilberto Valle, who was convicted of conspiring to kidnap, rape, and kill half a dozen women, Robert Kolker considers the tangled relationship between thought, action, and the law:

While thoughts haven’t always been protected from prosecution (as the witch hunts and red scares and political detentions of many eras demonstrate), there was a time, more than a century ago, when even attempted crimes like theft and murder and kidnapping weren’t considered criminal activity: If you tried to pick someone’s pocket and there was no money in the pocket, then you couldn’t be prosecuted. When attempted crimes first became criminalized in the early 1900s, Supreme Court Justice Oliver Wendell Holmes urged caution, asserting that for the defendant to be convicted, “[t]here must be dangerous proximity to success.”

That standard weakened in the sixties, when a new set of guidelines called the Model Penal Code – a successful effort by the legal community to standardize the criminal code across the nation after a century of inconsistent case law –replaced the idea of proximity with that of a “substantial step.” For law enforcement, this was a happy coincidence: As violent crime became a more common reality, the police could use a suspect’s state of mind to justify an arrest, as long as that suspect also took at least some real action.

What’s changed in recent years are the tools used to detect intent—namely, a person’s online activity.

“We’ve always said you can’t punish for thoughts alone, but now we really know what the thoughts are,” says Audrey Rogers, a law professor at Pace University who has taught the Valle case in class. Since 9/11, the government has used the monitoring of ­electronic communication to bring more than 200 prosecutions against people suspected of providing material support to terrorist organizations. “You expand the definition of a crime by extending it to this sense of what might happen in the ­future,” says Georgetown law professor David Cole.

What’s also changed, perhaps, is the scale of certain crimes – not just 9/11 but Columbine, Aurora, and Sandy Hook—and the way technology has emboldened many to think that anyone with ill intent might be stopped before snapping into action. In 2009, the FBI was reading Najibullah Zazi’s e-mails to Al Qaeda and picked him up before he ever built a fully workable bomb. Just last month, in Arizona, police traced threatening e-mails to a 15-year-old who turned out to own 100 rounds of ammunition; he didn’t own a gun, but after his arrest, police said they’d learned he had researched how to make an explosive device but was unable to procure the parts. And then there are the scores of To Catch a Predator-style stings.

To be fair, the Cannibal Cop left plenty of real-world evidence of his intentions; he “looked up potential targets on a restricted law enforcement database, searched the Internet for how to knock someone out with chloroform, and showed up on the block of one woman after agreeing to kidnap her for $5,000 for a New Jersey man.”