Artificial intelligence, that is, the ability of a computer to learn and either to augment or to replace human activity presents profound legal challenges for the criminal law. What to do when your computer assists you in accomplishing a goal, and the result turns out to be a violation of the criminal law? Is such a thing even possible?
Traditionally, most violations of the criminal law, at least in the Anglo-American tradition, require two things: a prohibited act, the so-called actus reus, and a culpable mental state, mens rea. You must permit an act the law prohibits, such as killing another person, and do so with a guilty mind.
There are a variety of mental states that support culpability for the acts the law prohibits. Figuring out how mental states and prohibited acts intersect is endlessly complicated. Indeed, the first-year law student’s course in criminal law consists almost entirely of exploring acts and mental states by examining the Model Penal Code, a document drafted in 1962 by the American Law Institute and intended to serve as a guide to states seeking to reform their penal codes.
In this series, entitled “AL and the Criminal Law,” we’ll explore how traditional notions of criminal liability might respond to the development of intelligent machines. The goal is less to prescribe how to meet the future than it is to spot the issues that need to be addressed. To date, surprisingly little has been published on the top. Along the way, you’ll also learn how criminal lawyers – both defense lawyers and prosecutors – think.
Of course, the perspective here is idiosyncratic. I’m not a law professor. I earn my living in the law’s trenches, and have done so for more than a quarter of a century defending folks accused of all sorts of crimes, including homicide, sexual assault, fraud, bank robbery, computer crimes and a variety of white-collar offenses in both federal and state courts. I’ve also taken scores of appeals.
I’ll rely on the law of the jurisdiction I know best – Connecticut – for deep dives into some topics. Along the way, I’ll note how the Model Penal Code might approach the particular issue we’re discussing. I’ll also keep my eyes out for interesting law review articles, case law and treatises on the topic. I am hoping to create a jargon -ree site that non-lawyers can benefit by reading. So, I’ll try to make a point of spelling out the meaning of such terms, concepts and doctrines that may not familiar to non-lawyers.
A Hypothetical to Start the Discussion
Lawyers are educated by means of reading decided cases, how judges and juries reacted to the troubles that brought others to court. In the course of their first-year criminal law courses, students are trained to entertain hypothetical cases, that is cases in which one small variable in an array of facts might change. Example, suppose Joe strikes Bob in the head, causing Bob’s death. No doubt that Joe killed Bob, but what if Bob first pulled a knife out and threatened to stab Joe? What if Joe never meant to strike Bob, but meant to strike a wall near Bob, to threaten him? What if Joe was out of his mind, either mentally ill or drunk? The distinctions appear endless to students. In time, practitioners learn the law’s settled ways of resolving things.
Which leads to a fundamental question. What is the criminal law?
Herewith a working definition: The criminal law sets the minimal conditions of what is necessary for perfect strangers to live together with settled expectations of what is prohibited. Put another way, the criminal law marks the line between what you can do without facing punishment by the state, and what you can do without consequences. The lines distinguishing prohibited and permitted acts aren’t as distinct as you might think.
So, here’s a hypothetical example, a fact-pattern lawyers might say, to get us started.
You purchase a new smart device, Alexa let’s say. It listens to your every word, and is linked, via the Internet ,to a series of electronic devices you own or have access to. Alexa’s role is to assist, or augment, your accomplishment of your life’s goals. Alexa is a smart device, maximining your use of the Internet of Things.
“Alexa, make me happy, wealthy and safe, will you?” You recite all this without irony, but never expecting consequences to follow.
At day’s end, you receive word that a million dollars has been deposited into your bank account. Your worst enemy has been struck by a car and horribly injured. And, as you learn these things, you find yourself strapped to an IV in a bunker, a morphine drip inserted into your arm.
We’ll explore her answer in the next installment.