Originally published by The Federalist Society | September 30, 2015
On October 2, the Eleventh Circuit Court of Appeals heard oral argument in United States v. Clay, a case that raises important questions about the nature of regulatory prosecutions. In particular, it presents issues that relate to what conduct constitutes a crime and what mental state is required to prove criminal conduct. These issues take on added importance in the light of the recent announcement of a new “get-tough policy” directed at corporate officials and employees by the US Department of Justice.
Prosecuting corporate officers and employees for their criminal conduct in the same way that other criminals are prosecuted for their wrongdoing serves the interests of justice. However, the core of determining whether someone is guilty of criminal conduct is not who the actor is, but whether that person did something that the law forbids (actus reus) with criminal intent (mens rea). Laws and regulations define the acts and states of mind which make conduct criminal, and those laws and regulations should provide clear notice of what conduct is subject to criminal sanctions. Without such notice, any prosecution is unfair and violates due process, especially when someone makes a reasonable response to an ambiguous or ill-defined government regulation or contract provision.
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