Originally published at The Heritage Foundation by John G. Malcolm | 9/1/2015
A number of criminal justice reform proposals have been introduced and are being actively discussed and debated on Capitol Hill these days. Most[1] (but not all[2]) of these proposals involve reforming criminal sentencing practices and prison reform. Notably absent, at least so far, have been any proposals to address mens rea (Latin for a “guilty mind”) reform.
This is both surprising and disappointing given that mens rea reform was a consistent theme throughout the year-long set of hearings conducted by the U.S. House of Representatives Committee on the Judiciary’s Over-Criminalization Task Force. During the task force’s first hearing, when Subcommittee Chairman James Sensenbrenner (R–WI) asked the four witnesses (former Deputy Attorney General George Terwilliger, then-Chairman of the American Bar Association’s Criminal Justice Section William Shepherd, then-President of the National Association of Criminal Defense Lawyers Steven Benjamin, and the author) to name their top priority to address overcriminalization, each said mens rea reform.[3] The task force subsequently devoted an entire hearing to the issue.[4]
One of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address societal problems—is ensuring that there is an adequate mens rea requirement in criminal laws. While sentencing reform addresses how long people should serve once convicted, mens rea reform addresses those who never should have been convicted in the first place: people who engaged in conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law. Any reform legislation should address and improve the problems with current law pertaining to mens rea standards as well as sentencing and other areas in need of reform.
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Mens Rea Reform Is a Bipartisan Issue
Prominent Republican and Democratic members of the Over-Criminalization Task Force seemed to agree on the need for mens rea reform. For instance, Republican Chairman Sensenbrenner stated that “[t]he lack of an adequate intent requirement in the Federal Code is one of the most pressing problems facing this Task Force….”[5] Lending his support to the issue, Ranking Member Robert “Bobby” Scott (D–VA) stated:
Themens rearequirement has long served as an important role in protecting those who did not intend to commit a wrongful act from prosecution or conviction…. Without these protective elements in our criminal laws, honest citizens are at risk of being victimized and criminalized by poorly crafted legislation and overzealous prosecutors.[6]
Similarly, during a hearing about the scope of regulatory crimes, Representative John Conyers (D–MI) stated:
First, when good people find themselves confronted with accusations of violating regulations that are vague, address seemingly innocent behavior and lack adequatemens rea, fundamental Constitutional principles of fairness and due process are undermined…. Second,mens rea, the concept of a “guilty mind,” is the very foundation of our criminal justice system.[7]
Following completion of the task force’s hearing, the Democratic members of the task force and the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations issued a report in which they stated:
Federal courts have consistently criticized Congress for imprecise drafting of intent requirements for criminal offenses…. It is clear that the House and Senate need to do better. We can do so by legislating more carefully and articulately regardingmens rearequirements, in order to protect against unintended and unjust conviction. We can also do by ensuring adequate oversight and default rules when we fail to do so.[8]
What Is Mens Rea, and Why Is Reform Needed?
Heritage scholars have written about the need for mens rea reform for some time,[9] and that need is no less pressing today. As former Heritage Senior Legal Research Fellow Paul Rosenzweig stated:
From its inception, the criminal law expressed both a moral and a practical judgment about the societal consequences of certain activity: For an act to be a crime, the law required that an individual must either cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. In other words, the definition of a crime requires two things: anactus reus(a bad act) andmens rea(a guilty mind). At its roots, the criminal law did not punish mere bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical authorities, and the latter were for amelioration in the civil tort system.[10]
There are different mens rea standards providing varying degrees of protection to the accused (or, depending on your perspective, challenges for the prosecution). The following recitation of the different mens rea standards is somewhat broad and simplified, and courts often differ in how they define those standards, which can make a huge difference in close cases.[11]
- The standard that provides the highest level of protection to an accused would be “willfully,” which essentially requires proof that the accused acted with the knowledge that his or her conduct was unlawful.
- A “purposely” or “intentionally” standard would require proof that the accused engaged in conduct with the conscious objective to cause a certain harmful result.
- A “knowingly” standard provides less protection, with how much less depending to a great extent on how that word is defined. Some courts have defined the term “knowingly” to mean that the prosecution must prove (1) that the accused was aware of what he was doing (meaning he was not sleepwalking or having a psychotic episode or something of that nature) and (2) that he was aware to a practical certainty that his conduct would lead to a harmful result; other courts have defined the term to require only the former.
- Yet another mens rea standard would be “recklessly” or “wantonly,” which would require proof that the accused was aware of what he was doing; that he was aware of the substantial risk that such conduct could cause harm; and that, despite this knowledge, he acted in a manner that grossly deviated from the standard of conduct that a reasonable, law-abiding person would have employed in those circumstances.
- Another standard that does not offer much protection at all would be “negligently,” which requires proof that the accused did not act in accordance with how a reasonable, law-abiding person would have acted in those circumstances. “Negligently” is often utilized in connection with criminal statutes that define mens rea based on what a defendant “reasonably should have known.” Negligence is a term traditionally used in tort law and is extremely ill-suited to criminal law. Arguably, negligence is not a mens rea standard at all, since someone who simply has an accident by being slightly careless can hardly be said to have acted with a “guilty mind.”
Today, nearly 5,000 federal criminal statutes are scattered throughout the 51 titles of the U.S. Code,[12] and buried within the Code of Federal Regulations, which is composed of approximately 200 volumes with over 80,000 pages, are an estimated 300,000 or more (in fact, likely many more) criminal regulatory offenses[13] or so-called public welfare offenses. In fact, it is a dirty little secret that nobody, not even Congress or the Department of Justice, knows precisely how many criminal laws and regulations currently exist.[14] Many of these laws lack adequate, or even any, mens rea standards—meaning that a prosecutor does not even have to prove that the accused had any intent whatsoever to violate the law or even knew he was violating a law in order to convict him. In other words, innocent mistakes or accidents can become crimes.
There are, of course, certain kinds of crimes such as murder, rape, arson, robbery, and fraud, which are referred to as malum in se offenses (Latin for “wrong in itself”), that are clearly morally opprobrious. In dealing with such crimes, it is completely appropriate—indeed necessary—to bring the moral force of the government to bear in the form of a criminal prosecution in order to maintain order and respect for the rule of law.
Some criminal statutes and many regulatory crimes, however, do not fit into this category. Such crimes are known as malum prohibitum (Latin for “wrong because prohibited”). This category of offenses would not raise red flags to average citizens (or even to most lawyers and judges) and are “wrongs” only because Congress or regulatory authorities have said they are, not because they are in any way inherently blameworthy.
In the case of regulations, the matter is even more complicated. Unlike malum in se offenses, which are always wrong and always prohibited absent a limited set of morally justified and well-recognized exceptions (such as a legitimate claim of self-defense in a murder case), regulations allow conduct, but they circumscribe when, where, how, how often, and by whom certain conduct can be done, often in ways that are hard for the non-expert to understand or predict. Such regulatory infractions are enforced and penalized through the same traditional process that is used to investigate, prosecute, and penalize rapists and murderers, even though many of the people who commit such infractions are unaware that they are exposing themselves to potential criminal liability by engaging in such activities.[15]
In 2001, in Rogers v. Tennessee,[16] the Supreme Court of the United States cited “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.” The threat of unknowable, unreasonable, and vague laws—all of which pertain to one’s ability to act with a “guilty mind”—troubled our Founding Fathers as well. In Federalist No. 62, James Madison warned: “It will be of little avail to the people that laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…[so] that no man who knows what the law is today, can guess what it will be like tomorrow.”[17] There is a serious problem when reasonable, intelligent people are branded as criminals for violating laws or regulations that they had no intent to violate, never knew existed, and would not have understood applied to their actions even if they had known about them.
The relationship between criminal law and administrative law dates back to the turn of the 19th century, when Congress established federal administrative agencies to protect the public from potential dangers posed by an increasingly industrialized society and a regulatory framework that included both civil and criminal penalties for failing to abide by the rules those agencies promulgated. Such regulations cover such aspects of our lives as the environment around us, the food we eat, the drugs we take, health, transportation, and housing, among many others. As the administrative state has grown, so too has the number of criminal regulations.
There are, however, important differences between criminal laws and regulations, the most important of which is that they largely serve different purposes.[18] Criminal laws are meant to enforce a commonly accepted moral code that is set forth in language the average person can readily understand[19] and that clearly identifies the prohibited conduct, backed by the full force and authority of the government. Regulations, on the other hand, are meant to establish rules of the road (with penalties attached for violations of those rules) to curb excesses and address consequences in a complex, rapidly evolving, highly industrialized society. This is why they are often drafted using broad, aspirational language designed to provide agencies with the flexibility they need to address health hazards and other societal concerns and to respond to new problems and changing circumstances, including scientific and technological advances.
But while large, heavily regulated businesses may be able to keep abreast of complex regulations as they change over time to adapt to evolving conditions, it is less likely that individuals or small businesses will be able to do so. Such traps for the unwary can have particularly dire consequences if criminal penalties are attached to violations of such regulations.
There is a significant difference between regulations that carry civil or administrative penalties for violations and those that carry criminal penalties. People caught up in the latter may find themselves deprived of their liberty and stripped of their rights to vote, sit on a jury, and possess a firearm, among other penalties that simply do not apply when someone violates a regulation that carries only civil or administrative penalties.
There is also a unique stigma that is associated with being branded a criminal. A person stands to lose not only his liberty and certain civil rights, but also his reputation—an intangible yet invaluable commodity, precious to entities and people alike, that once damaged can be nearly impossible to repair. In addition to standard penalties that are imposed on those who are convicted of crimes, a series of burdensome collateral consequences often imposed by state or federal laws can follow a person for life.[20] For businesses, just being charged with violating a regulatory crime can sometimes result in the “death sentence” of debarment from participation in federal programs.[21]
As is the case with Congress, regulators have seemingly succumbed to the temptation to criminalize any behavior that occasionally leads to a bad outcome.[22] Such individuals, acting out of an understandable desire to protect the public from environmental hazards, adulterated drugs, and the like, believe it is appropriate—indeed, advantageous—to promulgate criminal statutes and regulations with weak mens rea standards or with no mens rea standards at all (so-called strict liability offenses) in order to prosecute and incarcerate those who engage in conduct, albeit perhaps negligently or totally unwittingly, that causes harm to the public. They will cite to the fact that, while a number of commentators have criticized strict liability criminal provisions,[23] the Supreme Court of the United States has upheld the constitutionality of such crimes on several occasions.[24] Such individuals believe, or at least fear, that insisting upon robust mens rea standards in our criminal laws will give a “pass” to those who engage in conduct that harms our environment—most likely, in their view, wealthy executives working for large, multinational corporations.
This argument is misplaced. This is not to deny that bad outcomes occasionally do occur or to suggest that those who engage in conduct that causes harm should not be held accountable. Rather, the appropriate question is how they should be held accountable.
There are dozens, perhaps over a hundred, sites being operated and controlled by one entity that are contaminated with hazardous substances and are on the Environmental Protection Agency’s Superfund List. Should the operators of these sites be prosecuted? Maybe so, but such an outcome is highly unlikely: These sites are operated by the Department of Defense.[25]
In August 2015, employees at a large entity engaged in conduct that caused millions of gallons of contaminated waste water (which stings when you touch it) containing heavy metals, including lead, arsenic, mercury, cadmium, iron, zinc, and copper, to surge into Colorado’s Animas River. It is feared that this could eventually affect Mexico, Utah, and the Navajo nation. New Mexico Governor Susana Martinez surveyed the damage caused by this toxic brew and said, “The magnitude of it, you can’t even describe it. It’s like when I flew over the fires, your mind sees something it’s not ready or adjusted to see.” Should the miscreants who caused this disaster be slapped in irons and branded felons? Again, such an outcome is not likely: This mishap was caused, no doubt unwittingly, by a trained hazmat team from the EPA.[26]
Why Congress Should Act
It is unavoidable that bad outcomes will occur from time to time, whether through willfulness, negligence, or sheer accident; however, the intent of the actor should make a difference in whether that person is criminally prosecuted or dealt with, perhaps severely, through the civil or administrative justice systems. As Oliver Wendell Holmes, Jr., who was later appointed to the Supreme Court, once observed, “Even a dog distinguishes between being stumbled over and being kicked.”[27]
The notion that a crime ought to involve a purposeful culpable intent has a solid historical grounding. In 1952, in Morissette v. United States, the Supreme Court stated:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.[28]
Some people or entities intentionally pollute our air and water or intentionally engage in other conduct knowing it will cause harm, in which case criminal prosecution may be entirely appropriate. However, if somebody or some entity unwittingly does something that results in harm, say, to the environment or to another person, there is no reason why it cannot be dealt with (even harshly) through the administrative or civil justice systems. This would help to remedy the problem and compensate victims without saddling morally blameless individuals and entities for life with a criminal conviction.
Just this past term, in Elonis v. United States, the Supreme Court emphasized the need for an adequate mens rea requirement in criminal cases. In that case, the Court reversed a man’s conviction for violating 18 U.S.C. §875(c) by transmitting threatening communications after he posted some deeply disturbing comments about his estranged wife (and others, including former co-workers) on his Facebook page that she quite reasonably regarded as threatening.[29]
The Court noted that while the statute clearly required that a communication be transmitted and contain a threat, it was silent as to whether the defendant must have any mental state with respect to those elements and, if so, what that state of mind must be. The Court stated that “[t]he fact that the statute does not specify any required mental state, however, does not mean that none exists” and, quoting from Morissette, observed that the “‘mere omission from a criminal enactment of any mention of criminal intent’ should not be read ‘as dispensing with it.’”[30]
The Court, citing to four other cases in which it had provided a missing mens rea element,[31] proceeded to read into the statute a mens rea requirement and reiterated the “basic principle that ‘wrongdoing must be conscious to be criminal.’”[32] The Court focused on the actor’s intent rather than the recipient’s perception: “Having the liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces the culpability on the all-important element of the crime to negligence.’”[33] While the Court declined to identify exactly what the appropriate mens rea standard is under that statute and whether recklessness would suffice, it certainly recognized that a defendant’s mental state is critical when he faces criminal liability and that when a federal criminal statute is “silent on the required mental state,” a court should read the statute as incorporating “that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”[34]
If it were a guarantee that courts would always devise and incorporate an appropriate mens rea standard into every criminal statute when one was missing, there might be no need for Congress to do so. As the Elonis Court noted, however, there are exceptions to the “‘general rule’…that a guilty mind is ‘a necessary element in the indictment and proof of every crime.’”[35] Despite the Elonis Court’s recent warning about the need to interpret mens rea requirements to distinguish between those who engage in “wrongful conduct” and those who engage in “otherwise innocent conduct,” courts (including the Supreme Court) on occasion have upheld criminal laws lacking a mens rea requirement based on a presumption that Congress must have deliberated and made a conscious choice to create a strict liability crime.[36]
Although this is a doubtful proposition to begin with, the moral stakes are too high to leave such matters to guessing by a court as to whether Congress truly intended to create a strict liability offense or, more likely, in the rush to pass legislation simply neglected to consider the issue. And even if a court concludes that Congress did not mean to create a strict liability crime, there is the ever-present risk that a court will pick an inappropriate standard that does not provide adequate protection, given the circumstances, to the accused.
What Congress Should Do
Congress should give greater consideration to mens rea requirements when passing criminal legislation, both to make sure that they are appropriate for the type of activity involved and to ensure that the standard separates those who truly deserve the government’s highest form of condemnation and punishment—criminal prosecution and incarceration—and not some other form of sanction. Absent extraordinary circumstances, it should not be enough for the government to prove that the accused possessed “an evil-doing hand”; the government should also have to prove that the accused had an “evil-meaning mind.”[37]
In addition to beginning the arduous task of undertaking a review of existing criminal statutes and regulations to see whether they contain adequate and appropriate mens rea standards, Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided. In other words, if an element of a criminal statute or regulation is missing a mens rea requirement, a default mens rea standard—preferably a robust one—should automatically be inserted with respect to that element.[38]
It is important to remember that such a provision would come into play only if Congress passes a criminal statute that does not contain any mens rea requirement. Congress can always obviate the need to resort to this provision by including its own preferred mens rea element with respect to the statute in question. Moreover, on those (hopefully rare) occasions when Congress wishes to pass a criminal law with no mens rea requirement whatsoever, it should make its intentions clear by stating in the statute itself that Members have made a conscious decision to dispense with a mens rea requirement for the particular conduct in question. Such an extraordinary act—which can result in branding someone a criminal for engaging in conduct without any intent to violate the law or cause harm—should not be accomplished through sloppy legislative drafting or guesswork by a court trying to divine whether the omission of a mens rea requirement in a statute was intentional or not.
This should not be an onerous requirement, and Congress would not have to use a magic formulation of words to make its intent clear. Congress could, for example, choose to make its intent clear by adding a provision to a criminal statute such as: “This section shall not be construed to require the Government to prove a state of mind with respect to any element of the offense defined in this section.”
Who Will Benefit from Mens Rea Reform?
Will some senior corporate management “fat cats” benefit because stricter mens rea requirements make it more difficult to prosecute them successfully? Possibly. After all, most individuals who fall into that category work in heavily regulated industries and are normally given explicit warnings by government officials, usually as a condition of licensure, about what the law, including potential criminal penalties, requires and therefore cannot reasonably or credibly claim that they were not aware that their actions might subject them to criminal liability so long as they acted with the requisite intent. Moreover, as Heritage Foundation Senior Legal Research Fellow Paul Larkin has noted:
Corporate directors, chief executive officers (CEOs), presidents, and other high-level officers are not involved in the day-to-day operation of plants, warehouses, shipping facilities, and the like. Lower level officers and employees, as well as small business owners, bear that burden. What is more, the latter individuals are in far greater need of the benefits from [mens reareform[39]] precisely because they must make decisions on their own without resorting to the expensive advice of counsel. The CEO for DuPont has a white-shoe law firm on speed dial; the owner of a neighborhood dry cleaner does not. Senior officials may or may not need the aid of the remedies proposed here; lower-level officers and employees certainly do.[40]
Consider two examples. Wade Martin, a native Alaskan fisherman, sold 10 sea otters to a buyer he thought was a Native Alaskan; the authorities informed him that was not the case and that his actions violated the Marine Mammal Protection Act of 1972,[41] which criminalizes the sale of certain species, including sea otters, to non-native Alaskans. Because prosecutors would not have to prove that he knew the buyer was not from Alaska, Martin pleaded guilty to a felony charge and was sentenced to two years’ probation and ordered to pay a $1,000 fine.[42]
Lawrence Lewis[43] was born and raised in the projects of Washington, D.C. Seeking to avoid the fate of his three older brothers who got caught up in the criminal justice system and were murdered, and while caring for his elderly mother and raising two daughters, Lewis worked as a janitor for the public school system, took night classes, and eventually rose to the position of chief engineer at Knollwood, a military retirement home. On occasion, some of the elderly patients at Knollwood would stuff their adult diapers in the toilets, causing a blockage and sewage overflow. To prevent harm to the patients, especially those in the hospice ward on the first floor, Lewis and his staff did what they were trained to do on such occasions and diverted the backed-up sewage into a storm drain that they believed was connected to the city’s sewage-treatment system.
It turned out, however, that the storm drain emptied into a remote part of Rock Creek, which ultimately connects with the Potomac River. This was unbeknownst to Lewis, as acknowledged by the Department of Justice in a court filing. Nonetheless, federal authorities charged Lewis with felony violations of the Clean Water Act, which required only proof that Lewis committed the physical acts that constitute the violation, regardless of any knowledge of the law or intent to violate the law on his part. To avoid a felony conviction and potential long-term jail sentence, Lewis was persuaded to plead guilty to a misdemeanor and was sentenced to one year of probation.
Were Wade Martin and Lawrence Lewis corporate fat cats? Hardly, yet both carry the stigma of a criminal conviction and all of the attendant collateral consequences that flow from that.
When morally blameless people like Lawrence Lewis and Wade Martin unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system, not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished. That is something that should concern everyone.
Conclusion
In 1933, in a classic law review article that coined the term “public welfare offenses,” Columbia Law Professor Francis Sayre stated: “To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure.”[44] Sadly, that has not proven to be the case. In fact, quite the opposite is true: Such laws have flourished.
To those who would argue that corporate bigwigs might benefit from mens rea reform, Larkin likely would eloquently respond:
To be sure, [mens reareform would] not, and could not be, limited to the lower echelons of a corporation or to persons earning below a certain income. The indigent can demand the appointment of counsel at the government’s expense, but the criminal law has never created a similar divide for defenses to crimes, with some available only for the poor. Just as the sun ‘rise[s] on the evil and on the good’ and it rains ‘on the just and the unjust,’ [mens reareform] will aid senior corporate executives as well as entry-level employees. But any remedy for any of the ills caused by overcriminalization will have that effect. We ought not to reject remedies for a serious problem because the neediest are not the only ones who will benefit from them.[45]
An equally apt and pithier response comes from Representative Bobby Scott, who stated during one of the Over-Criminalization Task Force’s hearings:
The real question before us is how to address not only the regulations that carry criminal sanctions, but also numerous provisions throughout the Criminal Code that also have inadequate or nomens rearequirement.… Addressing and resolving the issue of inadequate or absentmens reaand in all the criminal code would benefit everyone.[46]
The time for mens rea reform is now.
—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
