Heritage Report: The Pressing Need for Mens Rea Reform

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.

Get exclusive insider information from Heritage experts delivered straight to your inbox each week. Subscribe to The Agenda >>

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.


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.


Heritage Report: Fighting Back Against Over-Criminalization: The Elements of a Mistake of Law Defense

Originally published at The Heritage Foundation by Paul J. Larkin, Jr. | 6/12/13

A myriad of problems are caused today by overcriminalization—the misuse and overuse of criminal law, which ensnares average citizens for committing acts that are not morally blameworthy and that most people would not know are crimes. Punishing someone who is morally blameless is unjust and engenders disrespect for our legal system.

As described in a previous Heritage paper,[1] a mistake of law defense is needed to deal with the drastic transformation of America’s criminal justice system. This Legal Memorandum describes what the elements of that defense should be and why.

The Essential Elements of a Mistake of Law Defense

The mistake of law defense has a simple purpose: to allow a morally blameless individual to avoid conviction. The contours of the defense also are simple: A defendant is entitled to a complete defense if a reasonable person in the defendant’s position would not have believed—and if the defendant himself did not believe—that the charged conduct was illegal. The defendant should have the burden of producing evidence to support this defense and possibly also the burden of persuasion by a preponderance of the evidence.

A Complete Defense. The defense would exonerate a defendant and therefore is similar to an alibi defense or a successful claim of self-defense or defense of another. By contrast, provocation can merely reduce murder to manslaughter, which makes it only a partial defense. A successful mistake of law defense, however, frees a defendant.

Knowledge of the Law. The government ordinarily does not need to prove that a person knew that he was breaking the law. Indeed, the criminal law decided centuries ago that ignorance or a mistake of law was not a defense.[2] But that proposition became law when there were few crimes and every one of them also violated the moral code. Times have changed, and today, a person can unwittingly run afoul of the criminal law without engaging in blameworthy conduct. Indeed, attorney Harvey Silverglate has estimated that there is a risk of that happening to at least some people every day.[3]

The use of the criminal law to enforce a complex regulatory regime creates numerous opportunities for that scenario. The reason is that, by definition, a regulatory program allows the conduct in question to occur; agency rules merely define when, where, and how. Even the lawyers who practice in a regulated industry will not know all of the statutes, rules, and regulations—which makes hopeless the plight of the average person who lacks legal training or ready and inexpensive access to an attorney.

The proposition that a defendant should not be held liable if he or she did not reasonably believe that he or she committed a crime is settled law in the area of tax prosecutions. In order to convict a defendant of willfully violating the tax laws, the government must prove that the defendant violated a known legal duty.[4] Therefore, a defendant who has a reasonable, good faith belief that he properly reported and paid his or her taxes is entitled to be acquitted of tax fraud.

That requirement has not nullified the federal government’s ability to bring tax prosecutions. A mistake of law defense would simply apply that principle in a broader range of cases.

A Reasonable Belief. Not every mistake of law is exculpatory. A defendant who unreasonably believed that his or her conduct was lawful would not be acquitted. For example, a person who erroneously believed that thievery is not a crime would not be entitled to an acquittal.[5] Some conduct is universally deemed immoral and illegal, and no one reasonably could claim ignorance of those rules. Murder, manslaughter, rape, mayhem, robbery, burglary, arson, and larceny were crimes at common law, and they remain crimes under federal and state law.[6]

Moreover, a mistake defense does not require that the precise circumstances previously have been identified as illegal; conduct closely analogous to the above crimes also would be deemed unlawful. The reason for such measured ambiguity is simple: While the public might not be conversant with the details of every criminal offense, everyone certainly knows the general picture.[7]

A person should not need legal training to avoid breaking the law. In fact, any such requirement would defeat its purpose. The Constitution requires that a person have notice of what the criminal law prohibits. Under the void-for-vagueness doctrine, a criminal law is unconstitutional if it “fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the statute.”[8] The question in that regard, it is important to note, is whether the statute is capable of interpretation by “a person” of common intelligence,[9] not by “a lawyer” of common intelligence. The same standard should apply for a mistake of law defense.

This inquiry should not be difficult for the courts to undertake. The question whether a defendant reasonably believed that his or her conduct was not unlawful should be analyzed from the defendant’s perspective—that is, based on the facts known to him or her at the time. It makes little difference whether the criminal law treats those differences as issues of fact, law, or both. The important question is whether the defendant acted reasonably, not what type of mistake he made.

Moreover, the reasonableness component of this inquiry is not materially different from the one that the courts use when deciding whether the exclusionary rule or qualified immunity doctrine applies in a given case. For example, in the 1980s, the Supreme Court decided that the suppression of relevant evidence and the imposition of damages liability were unnecessary sanctions in cases in which a government official may have acted unconstitutionally but nonetheless acted reasonably.[10] Those inquiries are objective in nature, and the federal courts have been making those judgments without obvious difficulty for more than 30 years.

Anglo–American courts have also developed the law governing defenses to crimes for centuries.[11] Defining the content and contours of a mistake defense is a traditional task for courts. Indeed, courts readily can rely on reason and experience to define a mistake of law defense just as they have relied on those factors in creating a law of privileges under the Federal Rules of Evidence.[12] Furthermore, if Congress concludes that the courts have gone astray, Congress could overturn their decisions or limit the courts’ authority to engage in case-by-case common law decision-making. But the better approach in the first instance is to allow the federal courts to apply a mistake of law defense in the same manner that they always have done for other defenses.

A reasonableness requirement also answers the claim that a mistake of law defense would allow a party to escape liability on the ground that foreign law or custom justified his or her conduct, such as in the case of a so-called honor killing.[13] Any such claim would be unreasonable as a matter of law. Anglo–American law never has recognized such a defense, and there is little that could be said on its behalf. Such a defense invites disregard of the law, even chaos, which is why the courts have uniformly rejected a right to an instruction on jury nullification.[14] That rationale applies here, too. Intertribal retaliation may be accepted elsewhere in the world, but we do not allow feuding between San Francisco and Baltimore fans because the Ravens beat the 49ers in the Super Bowl.

Finally, keep in mind that the defendant also must have believed that his or her conduct was lawful. The purpose of the defense is to exculpate morally blameless parties, not to create a loophole for people who know more law than the average bear. If the jury finds that a defendant knew that his or her conduct was illegal—perhaps the government previously had cited him or her civilly or administratively for the same conduct—the jury would be duty-bound to reject the defense. For example, if a person in fact knows that a particular drum contains hazardous waste and cannot be stored, transported, or disposed of in the same manner as ordinary garbage but engages in one of those actions despite this knowledge, the jury should find that he knew that what he did was illegal.

“Willfulness vs. “Mistake of Law.” A defendant is not required to prove that his or her conduct was legal; the government has the burden to prove that he or she committed a crime.[15] If a statute requires the government to prove that the defendant “willfully” broke the law, the government, as part of that burden, will have to prove that the defendant intentionally flouted a known legal duty. In any such case, there would be no need for the defendant to assert a mistake of law defense because the issue of whether the defendant knew that his conduct violated the law would be litigated in the context of challenging whether the government has met its burden of proof.

The Burden of Production and Proof. In cases in which the government does not have to prove that the defendant acted willfully, however, Congress could decide to recognize a mistake of law defense and place the burden of production and proof on the defendant.[16] In that event, a mistake of law defense would become an issue in a case only if the defendant raises the defense—which a defendant could be required to assert before trial[17]—and also only if he or she presents evidence that is sufficient to allow the trial judge to conclude that a reasonable jury could find in the defendant’s favor on that proof.[18] The government would not be required to disprove a mistake-of-law defense in its case-in-chief, although the government could do so rather than wait for its rebuttal case. If Congress fears that a mistake defense would allow a scallywag to escape justice, it could place the burden of proof on the defendant.[19] If the defendant did not carry his or her burden, the trial judge would not instruct the jury on the defense.[20]


A mistake of law defense should exculpate morally blameless parties without creating a loophole for miscreants. Both goals are attainable by using a reasonableness standard and by allocating the burden of production and proof to the defendant. So applied, a mistake of law defense would be a reasonable addition to the criminal law and would help to ameliorate the serious problems created by overcriminalization.

—Paul J. Larkin, Jr., is a Senior Legal Fellow and Manager of the Overcriminalization Project in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The discussion in this paper builds on the detailed treatment of the mistake of law defense in Paul J. Larkin, Jr., A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A.J. Criminal Justice 10 (Spring 2013); Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 777–81 (2013); and Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012).


Heritage Report: The Need for the Mistake of Law Defense as a Response to Overcriminalization

Originally published at The Heritage Foundation by Paul J. Larkin Jr. | 4/11/13

By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with thousands of criminal offenses in federal statutes and hundreds of thousands in federal regulations. No person could possibly be expected to know them all or even to know all of those that may apply to his daily activities. Yet the law still clings to the maxim that ignorance of the law is no excuse at a time when some ignorance is inevitable, particularly regarding malum prohibitum offenses, or crimes outside the category of inherently harmful or blameworthy acts.

Mistake of law as a defense to criminal liability deserves a second look. The proposition that a defendant should be able to raise a mistake of law defense to a charge that he committed a malum prohibitum offense sensibly balances society’s strong interest in enforcement of the law and society’s even more powerful interest in not punishing morally blameless parties. Allowing the courts to filter out the phony from legitimate claims of mistake will separate the blameworthy from the blameless and protect the latter.

The cost of making that distinction likely will prove minimal and, in any event, is worth it. Punishing someone who is blameless is unjust, and that cost must be weighed too. However this change is made—whether by the Congress through a revision of the penal code or by the courts through their power to define common law defenses to crimes—it should be done.

The Overcriminalization Problem

The rule against mistake of law as a defense made sense during the development of the English common law, the ancestor of our own common law, hundreds of years ago.[1] There were fewer than a dozen felonies, and they mirrored then-contemporary morality. Murder, rape, and robbery were universally crimes against God in every religious tradition, so everyone knew that such conduct was forbidden. As John Salmond put it, “The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right.”[2]

That no longer is true. There are more than 4,500 federal crimes and potentially more than 300,000 relevant federal implementing regulations.[3] No one could know them all—not a judge, not a lawyer, and certainly not an average citizen untrained in the law. Even the Justice Department failed when it tried to identify every federal crime.[4] In addition, because so many criminal laws outlaw conduct not normally seen as blameworthy, there no longer is an understandable rule of thumb to know what is and is not a crime.[5]

Over the past 125 years, Congress has increasingly used the criminal law to enforce complex regulatory regimes that were adopted in order to protect the economy, industry, and the public from the harms endemic in a modern industrial economy.[6] The combination of regulatory programs and criminal liability, however, creates serious problems unknown to the common law.

Regulatory statutes are written broadly so that agencies have discretion to respond appropriately to new issues and dangers. Implementing regulations are detailed and complex, and they can demand scientific or technical knowledge that the average person lacks.[7] That combination is unhealthy for the criminal justice system. It demands too much to require the average member of the public to be aware of, to know where to look for, and to understand the regulatory statutes and rules on pain of criminal liability for making a mistake.

A fundamental tenet of the criminal law is that the average member of society must be able to understand it.[8] Advance warning of where the line between lawful and illegal conduct lies, or “notice,” is indispensable if the criminal law is to avoid ensnaring blameless parties. The size and complexity of today’s laws, along with the absence of a usable yardstick to guide non-lawyers, mean that morally blameless parties inevitably, but unwittingly, will commit some acts that turn out to be crimes and as a result could wind up in prison. This problem can ruin the lives of average persons.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than paper and supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.)[9]
  • Lawrence Lewis wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home, which wound up shunting the refuse into the Potomac River.[10]
  • Finally, the federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets allegedly exported illegally from India and Madagascar in violation of those nations’ laws—which in the case of Madagascar were not even written in English.[11] In other words, the federal government claimed that Gibson was guilty of a federal crime because it did not know the law of a foreign nation.

In none of those cases did the federal government accuse a party of conduct that was inherently evil, or malum in se, such as murder, rape, or robbery. Instead, the government charged Schoenwetter, Lewis, and Gibson with violating regulatory schemes that made certain conduct a crime simply because legislators decided it to be so. Such crimes are called malum prohibitum offenses.[12]

It may be reasonable for the government to employ civil or administrative remedies rather than relying on private tort actions to prevent dangers to the public health or safety. As these cases show, however, using criminal laws to serve those ends can readily lead to a miscarriage of justice. It is unrealistic to expect a law-abiding person to comply with all federal, state, and local criminal laws and nearly impossible to expect people to know the law of a foreign land.

The effect of using the criminal law to enforce a regulatory regime is to require that a person have legal training to avoid criminal liability. Only a lawyer would know where to look to find the relevant statutes and regulations; only a lawyer (and perhaps few of them) would be able confidently to know that he or she understood all of those laws; and only a lawyer could predict with any degree of accuracy how those statutes and regulations would be applied by bureaucrats, prosecutors, and judges to varying factual scenarios. Yet many of the criminal elements of regulatory laws are premised on the unspoken assumption that persons who are subject to regulation are capable of doing these things.

That assumption is unwise as a matter of policy. At the end of the day, it is not just a legal fiction that everyone knows the law today; it is a hallucination.

The Inadequacy of Piecemeal Solutions

One often-aired solution to the overcriminalization problem is for prosecutors to decline to bring charges in cases like the ones described above. Prosecutors have the discretion not to charge a person who may have technically but unknowingly committed a crime, and in many of those instances, resorting to a civil or administrative fine in lieu of a criminal prosecution can fully satisfy the federal government’s need to enforce the law and to compensate those who may have been harmed by the conduct.

The criminal law is the most severe device that any government can use against its citizens. In cases where the conduct and party at issue are not morally blameworthy, the criminal process is too ruinous a weapon for the government to deploy. No one should be forced to rely on prosecutorial discretion to avoid a criminal charge in such a case.

Under our system of government, the public is entitled to be protected by the law rather than forced to rely on the good faith, common sense, and discretion of government officials. A cardinal principle of our legal system is that the law itself should serve to protect individuals from the excesses and mistakes of the government.[13]

The Supreme Court clearly articulated that principle in 1803 in Marbury v. Madison, stating that ours “is a government of laws, and not of men.”[14] We once had a system of law in which people were subject to the discretion of a king, but we clearly rejected that approach more than two centuries ago, adopting a Constitution that stands between the government and the public and that limits the actions that prosecutors may take to those that are enacted through the legislative process set forth in the Constitution.

The Need for a Mistake of Law Defense

To address overcriminalization requires ensuring that the law itself does not trip up unsuspecting parties. The key step is to return the criminal law to its common law focus on blameworthy conduct. To achieve that result, Congress could allow a defendant to raise a mistake of law defense to establish his or her innocence.

Traditionally, Congress has left to the federal courts the responsibility to define defenses such as self-defense, duress, or necessity, or reliance on the opinion of a government official.[15] On occasion, however, Congress itself has taken up the task of defining the elements of a defense. Insanity is one example.[16] Whether defined by Congress or by the federal courts, a mistake of law defense would be a sensible way to deal with the overcriminalization problem that we see today.[17]

Mistake of Law vs. Mistake of Fact. Mistakes can be of fact, of law, or both. A mistake of fact already is a defense to some crimes because it can disprove a necessary mental state to a crime such as theft, which requires proof of the intent to deprive someone else of his or her property. Mistakenly taking your colleague’s umbrella thinking that it was your own—which is a mistake of fact—would not make you a thief.

A mistake of law defense could be used in different but analogous circumstances. For example, a person who reasonably and honestly believed that the wood he imported to make guitars was taken in full compliance with the law of the host nation could use a mistake of law defense to fend off a criminal charge such as the one used against Gibson Guitar.[18]

The common denominator in both cases is that no reasonable person would have known that his actions were a crime. Yet the criminal law currently permits a defendant to raise a mistake of fact defense but denies him the same opportunity if his mistake is legal. In both cases, however, the defendant is morally blameless.

The Current Need. That disparity made sense when the number of statutes in the penal code could be counted on the fingers of two hands and involved conduct that was commonly recognized as wrong. The economy then was agrarian, not industrial. There were no regulatory agencies and no regulations. There were very few crimes, and the courts created the ones that did exist. Congress had not yet preempted this field. But that day is long past and will never return. The penal code now is far larger and far more complex, the setting that gave birth to the common law “ignorance of the law is no excuse” rule has disappeared, and the rationale that “everyone knows the law” has vanished.

Those changes militate in favor of re-examining the merits of a mistake of law defense. In the classic words of Oliver Wendell Holmes, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”[19] If that is so, as it surely is here, it is incumbent on Congress to reconsider the common law’s refusal to recognize a mistake of law defense.

There is a powerful case to be made for that defense today. If no one could reasonably be said to know all of the rules that create criminal liability, it is unreasonable to retain the common law proposition that everyone does know them.[20] Indeed, it is intellectually dishonest for the criminal law to act as if that proposition still is or even could be true today. If a lawyer could not hope to know all of the criminal laws, what hope does an ordinary member of the public have? As the late William Stuntz observed, “Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn’t criminal in their jurisdictions.”[21]

Adults and children alike know the inherent unfairness of being punished for conduct that no one could reasonably have believed was criminal. Past and present prominent legal scholars such as Sir James Fitzjames Stephen, John Austin, Edward Keedy, Jerome Hall, and Wayne LaFave have criticized that proposition as being “an obvious fiction,” “notoriously and ridiculously false,” “absurd,” or “so far-fetched in modern conditions as to be quixotic.”[22] Those criticisms have grown stronger over time[23] Even the Supreme Court of the United States now characterizes the common law rule as a just a “cliché.”[24]

The Law Should Guarantee Fair Notice. Several contemporary legal doctrines support the proposition that a party should not be held liable for conduct that no reasonable person would have thought was a crime. The common law rule of lenity requires that any ambiguity in a criminal statute be resolved in the defendant’s favor on the ground that no one should bear the risk of criminal punishment for misreading an ambiguous law.[25] Likewise, the “void-for-vagueness” doctrine bars the government from prosecuting anyone under a vaguely written criminal law.[26] Like those doctrines, a mistake of law defense recognizes the inherent unfairness of punishing someone for conduct that he or she was unaware had been outlawed.

The rule of lenity and the void-for-vagueness doctrines address the problem of inadequate notice at the retail level, because those doctrines focus on a statute-by-statute basis. A mistake of law defense addresses the problem at the wholesale level. It addresses the problem that there are so many criminal laws that no reasonable person could be expected to know them all. Stanford Law Professor Herbert Packer’s discussion of this point merits reading in full:

If the function of the vagueness doctrine is, as is so often said in the cases, to give the defendant fair warning that his conduct is criminal, then one is led to suppose that some constitutional importance attaches to giving people such warning or at least making such warning available to them. If a man does an act under circumstances that make the act criminal, but he is unaware of those circumstances, surely he has not had fair warning that his conduct is criminal. If “fair warning” is a constitutional requisite in terms of the language of a criminal statute, why is it not also a constitutional requisite so far as the defendant’s state of mind with respect to his activities is concerned? Or, even more to the point, if he is unaware that his conduct is labeled as criminal by a statute, is he not in much the same position as one who is convicted under a statute which is too vague to give “fair warning”? In both cases, the defendant is by hypothesis blameless in that he has acted without advertence or negligent inadvertence to the possibility that his conduct might be criminal. If warning to the prospective defendant is really the thrust of the vagueness doctrine, then it seems inescapable that disturbing questions are raised, not only about so-called strict liability offenses in the criminal law, but about the whole range of criminal liabilities that are upheld despite the defendant’s plea of ignorance of the law.[27]

Like the void-for-vagueness doctrine, the mistake of law defense addresses the problem of inadequate notice—the inability for the average person to know the contours of the law without a lawyer’s guidance.


As Ronald Cass, Dean Emeritus of Boston University School of Law, has observed:

The crux of the case againstignorantia legisthus is embodied in this question: If it is inconsistent with basic notions of fairness to penalize one for an act that, because of the nonexistence, inaccessibility, or vagueness of the law, the actor believed legal when done, why is it fair to punish one who is ignorant of the law for any other reason.[28]

The common law rule that ignorance or mistake of law was not a defense made sense in a time when the criminal laws were few in number and reflected what contemporary morals made clear to all. That state of affairs no longer exists, however, so it is our duty to change the law to reflect the modern state of affairs.

Properly defined and applied, a mistake of law defense would be a valuable addition to the criminal law today. It would exculpate morally blameless parties for conduct that no reasonable person would have thought was a crime. The defense would ensure that no one could be convicted of a crime when criminal liability was unforeseeable. Both the criminal justice system and society would be better off with such a rule in place.—Paul J. Larkin Jr. is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This paper is an abridged version of the detailed treatment of the subject in Edwin Meese III and Paul J. Larkin Jr. Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012), and Paul J. Larkin Jr. A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A. J. Crim. Just. ___ (2013) (forthcoming).


Heritage Report: Retribution and Overcriminalization

Originally published at The Heritage Foundation by Gerard V. Bradley | 3/1/12

Abstract: From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitumoffenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.

From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully exploited for its potential to limit overcriminalization: the fact that too many criminal offenses today are malum prohibitum offenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. These offenses often capture conduct that would otherwise be natural and even desirable in business, commerce, accounting, or everyday life. The primary instances discussed throughout this paper are strict liability regulatory offenses (referred to as the “central case”).[1]

In order to limit the growth of laws criminalizing morally innocuous conduct—a development which, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Indeed, punishment without a firm basis in retribution is unjust and therefore should be avoided.

Using the principle of retribution to critique overcriminalization may seem paradoxical for two separate reasons. The first arises from widespread and sometimes grotesque misunderstandings of retribution, such that it is often caricatured to mean lock up as many people as possible for very long times. In truth, however, retribution has no built-in tendency toward severity. The second criticism arises from the fact that retribution is a justification for punishment and not a theory about substantive criminal law. But what justifies also limits. Retribution offers solid moral bases for opposing overcriminalization.

Criticisms and Confusion: Toward a Proper Understanding of Retribution

Confusion about retribution, and about the moral justification for punishment more generally, is rampant. Almost nothing in standard first-year criminal law casebooks gets it right.[2] Scholarly literature is scarcely more helpful. Legislative reformers rarely understand it and, by all accounts, never accord it the central place that it needs to occupy if the institution of punishment is to be adequately justified. High state court authority is just as confused.

This widespread misunderstanding is one reason why retribution is so neglected today. Indeed, if retribution really did mean what people seem to think it means, then it ought to be neglected. But retribution is not lex talionis, the law of retaliation—“an eye for an eye”[3]—as many think it is.

To apply the “eye for an eye” norm non-metaphorically, a polity would have to be willing to do whatever its most depraved members might do. Probably no society has so abandoned moral constraint in the pursuit of criminal justice. It is true that “eye for an eye” is found in the Bible and was apparently meant to serve as a practical guide for the ancient Israelites, but biblical scholars have explained that the “eye for an eye” axiom was not an authorization of punishment or even a command to exact a like penalty. It was instead meant to limit retaliatory acts by kin and friends of the victim to no more than the loss incurred.[4]

The historical prevalence and perennial allure of retaliatory excess—vendettas, blood feuds, lynchings, and the like—no doubt had much to do with the emergence of public systems of criminal justice. According to Oxford legal philosopher John Gardner, it was “for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence.”[5] Even so, society must distinguish between this—what Gardner calls the “displacement function” of criminal law and punishment—and its critical moral justification. For there is no necessary connection, either logically or practically, between a practice’s origins and its critical moral worth. It is easy to see, too, that the “displacement function” cannot morally justify defining some conduct as a crime or imposing criminal punishment on anyone.

Notwithstanding some historical kinship with retaliation, retribution properly understood as a critical moral proposition is not about domesticating popular hatred for a known criminal. It is not about channeling repugnance toward a particularly heinous crime. It is not state-orchestrated revenge. Retribution is not driven by anger, hatred, or any other emotion; it is distinct from community outrage. It is perhaps admissible to hold that these pacific tendencies are one desired effect or function of punishment, but that is not to say that retribution’s tendency to pacify the passions of victims of crime and their communities constitutes a moral justification for punishment: It certainly does not. Mob-conducted lynchings and similar acts of cruelty and injustice are also capable of pacifying community outrage for (real or perceived) wrongdoing, but civilized society condemns such conduct.

Against the Transfer Justification of Punishment

H.L.A. Hart, one of the leading legal philosophers of the 20th century, famously argued that society may impose punishment on an offender only where society has been “harmed.” He identified two types of harms: where the authority of law is diminished and where a member of society is injured.[6] Hart’s first category could be mistaken for an awkward description of the retributive view described here, but his view of crime and punishment was very different from the one that is considered in this paper.

Hart’s second harm—that a member of society is injured—points toward a deeper investigation of the moral relationship between the institution of punishment and private rights. Hart is scarcely alone in holding this view. Richard Swinburne has argued that the state enjoys authority to impose punishment for criminal harm only where it serves as a proxy for the individual victim,[7] and he said that this was a retributive viewpoint.

Swinburne and Hart apparently imagine a state of nature similar to that described by John Locke: a notional place where individuals hold a natural moral right to punish those who harm them.[8] When these individuals band together to form a civil society, these thinkers (Swinburne, Hart, and perhaps Locke) suppose that they transfer their natural authority to punish to the emergent political authority, so the state punishes as agent or delegate of the community—conceived as an aggregate of individual rights-bearers, now standing down.

This whole line of thought is mistaken. Civil society does not punish as transferee or delegate of the victim. Civil society punishes in its own name for its own sake because civil society itself is the victim of each and every crime. Indeed, central political authority and its authoritative directives for the common good—laws—are a necessary precondition to and are conceptually derived from the institution of punishment.

There are two additional compelling arguments against the transfer justification of punishment theory.

First, as a matter of contingent fact, criminal acts often do involve an injustice to one or more specific persons: the defrauded elderly lady, the black-eyed assault victim, the hapless pedestrian whose car was stolen. But many crimes lack any such unwilling, particularized victim. Among these offenses are many public morals laws (drug possession, gambling, and prostitution); offenses against the state (including treason, espionage, and lying to the grand jury); and “quality of life” crimes (littering and public intoxication). In these cases, it is often far from obvious which individuals, if any, have a natural right to punish those who did them harm.

Second, there is good reason to doubt the premise of the transferor theory: namely, that there exists a natural right to punish those who do wrong to oneself or to one’s kin. People do have a natural right to defend themselves against attack and theft. People do have a natural right (within limits) to take back any goods that have been wrongfully taken from them. People do have a natural right to demand some remedy for vandalism or other wrongful deprivation of property. And people have a natural right to use force that is reasonable in amount and kind in order to accomplish those goals. But all these rights bundled together do not yield, imply, or entail a natural right to punish, because the nature of punishment differs from the nature of self-defense, replevin, or restitution. Nor do these rights promise moral justification of criminal punishment (even if they perhaps do provide justification for an inchoate tort system and an embryonic joint protective or police association).

Wicked deeds are a necessary but not a sufficient condition for morally justified punishment. Individuals regularly witness acts of injustice by others—lying spouses, cruel parents, disrespectful children, cheating colleagues—but it scarcely occurs to those witnessing these acts that they, as individuals, are authorized to punish those bad actions. Moreover, even if it is presumed that person A misbehaves and that his misbehavior warrants the judgment “A deserves to be punished,” it does not follow that BCD, or anyone else has the moral authority to punish A. Even in advanced legal systems, violations of law do not automatically authorize anyone to punish the violator; only certain officials wielding designated powers according to the relevant positive law are designated competent to punish others.

Civil Authorities and the Imposition of Punishment

Punishing a criminal involves the deliberate imposition by the political community’s administrative arm—the state—of some privation or harm upon an unwilling member of society. Whether punishment takes the form of a fine, incarceration, or (historically) the rack, the question arises: How is such a grave imposition upon someone morally justified?

The question of why civil authorities are entitled to punish is usually treated in law school as the “point” or “purpose” or “rationale” of punishment and not often as a question about its “moral justification”—a sign of the confusion that usually follows. The question is typically the first topic in criminal law class.

The laundry list of punishment’s purposes in criminal law casebooks includes deterrence, rehabilitation, and incapacitation. These purposes refer to, respectively, sanctioning a convicted criminal with a view to providing a disincentive to him or others to commit similar crimes, making the criminal well psychologically and socially, and isolating the criminal from law-abiding people. The problem is that none of these “rationales” provides an adequate moral justification for punishing anyone. Retribution does. But retribution is usually mangled in the teaching materials.

The Purposes of Law in Political Society

Understanding retribution depends upon a prior understanding of the purposes of law and the nature of cooperation in political society.

In the absence of any established political order, people would be free from authoritative constraint to do as they pleased. Their choices would not necessarily render society an uncontrollably selfish state of nature, as Thomas Hobbes anticipated.[9] Absent political order, some people would act reasonably—maybe even altruistically—and seek to cooperate with other people to achieve common benefits. (Call this the possibility of private ordering.)

But such a state of nature would, by definition, lack the means to structure the sort of cooperation that a large and heterogeneous society sometimes requires. Even custom could not provide this structure, at least for any large or complex society. States of nature lack altogether a common or effective authority by which to bring recalcitrants and free riders into line and by which to respond coercively to those who acted unfairly outside of the common pattern. Without some such central authority, the weaker members of society would be prey for the stronger, save where the former allied themselves into protective associations with the latter—in which case the excesses of vendettas and retaliatory raids might call forth a central authority: a proto-state.

Political society provides just such an authoritative scheme for structuring cooperation. Once this authority is up and running and providing direction (usually through law), justice requires individuals to accept the pattern of liberty and restraint specified by political authorities. Indeed, it is everyone’s acceptance of the established apparatus of political society for the purposes of cooperation for common good that makes civil liberty possible. One crucial meaning of equality and liberty within political society is precisely that everyone observes the pattern of freedom, restraint, and forbearance set up by these authorities.

Criminal acts often—but far from always (e.g., so-called victimless crimes)—involve injustice to one or more specific individuals, such as the battered spouse. What always occurs in crime is this: The criminal unjustifiably usurps liberty to pursue his own plans and projects in his own way, notwithstanding the law’s pattern of restraint. Thus far considered, the entire community remains within the law, each member denying to himself the liberty to do as he pleases except for the criminal. The criminal acts outside the pattern of common restraint and thus of mutual forbearance and cooperation.

The central wrong in crime, therefore, is not that a criminal causes harm to a specific individual. Rather, it is that the criminal claims the right to pursue his own interests and plans in a manner contrary to the common boundaries delineated by the law. From this perspective, the entire community—with the exception of the criminal—is victimized by crime. The criminal’s act of usurpation is unfair to everyone else; he has gained an undue advantage over those who remain inside the legally required pattern of restraint. In this view, punishing criminals is necessary to “avoid injustice, to maintain a rational order of proportionate equality, or fairness, as between all members of society.”[10]

Punishment restores the fundamental fairness and equality of mutual restraint disturbed by the criminal’s act. A criminal is punished in order to efface (as it were) his prior extravagance. By and through his punishment, society is restored to the status quo ante: The equality of mutual restraint within law is—morally speaking—re-established. The criminal’s debt to society is paid.

Again, depriving the criminal of this ill-gotten advantage is the central aim of punishment. Since that advantage consists primarily of a wrongful exercise of freedom of choice and action, the most appropriate means to restore order is to deprive the criminal of that freedom. Punishment sometimes includes sensory deprivation and even limited and transient pain, such as the pain of being shackled or of not being able to satisfy one’s hunger, and these will likely be experienced by the criminal as “suffering.”[11] The essence of punishment, however, is to restrict a criminal’s will by depriving him of the right to be the sole author of his own actions.[12]

Retribution: Moral Explanations and Justifications for Punishment

Arguing that retribution should be (at least) the primary driver of the moral justification of punishment is not like advocating that society dust off an impractical moralism, as if retribution were somehow a “justification in exile.” Retribution not only performs the invaluable service of justifying an essential but morally confounding social practice; it also provides morally adequate explanations for some anchor commitments within that social practice.

Take, for example, the ubiquitous styling of criminal prosecutions as a lawsuit to which the entire community is party, as in People v. Smith. Why are the “People” (or the “State” or the “Commonwealth”) the complaining party in every criminal case? Perhaps because retribution shows why and how by showing how society as a whole is victimized by every criminal act.

Retribution also underwrites the whole moralistic framework and language of criminal justice in a way that no other account of punishment can do. “Praise and blame,” “freedom and responsibility,” “guilt and innocence,” “crime and punishment”: This whole panoply of concepts and terms is part and parcel of America’s criminal justice experience, and it is supported well by retributive theory. So, too, is the act-specific and choice-specific focus of the criminal law.

From a retributive view, no one’s uncharitable attitudes, character defects, or personality disorders (all of which might trigger intervention in a rehabilitative or reformative regime of punishment) are fit grounds for punishment. The reason that they are not predicates for punishment owes to the fact that they are not acts of usurping liberty. The mere possession of these traits or beliefs is not, moreover, unfair to others.[13] Proponents of rehabilitation and paternalistic moral reformers, by contrast, are hardly able to explain why their particular ministrations must always await (by dint of moral imperative) the performance of some prohibited act.[14]

Another indication of how retribution explains and justifies punishment involves a perennial chestnut of first-year criminal law classes: What if a public authority could stave off riots and mayhem only by hanging an innocent person popularly believed to be guilty? The commonplace statement of moral priorities in society has long been “better that a hundred guilty persons go free than that one innocent suffer.”[15] Perhaps a hundred is hyperbole; Blackstone put the number at 10.[16] No matter, though, because both numbers express an important truth: A just society never wittingly convicts an innocent and stops at almost nothing to avoid negligently doing so.

Why? What are the moral underpinnings of this commitment, which is deeply embedded in this nation’s law and institutions?

Where retribution forms the moral justification for punishment, the problem of punishing the innocent can be solved. The aim of retribution is always frustrated—and is never served—by punishing the innocent. Punishing someone who has committed no offense is counterproductive. If someone has not distorted society’s equilibrium by committing a criminal act, harming him cannot restore that equilibrium, especially while the truly deserving party escapes retribution. Making an innocent disgorge his bold act of will is impossible, for there is nothing to be disgorged. Inflicting “punishment” on the innocent is instead simple scapegoating, which, even if it could somehow be morally justified, is surely not punishment at all.

Additionally, retribution promises cogent instruction on some controversial issues of the day. Retribution points straightaway, for example, in favor of determinate sentencing. The harm of any crime is cabined within a defined act performed on a particular occasion, and the measure of punishment required to redress it is tied tightly around that discrete act and its particular harm, both conceptually and morally.

Retribution also points, however, to a negative judgment on the broad movement in favor of “victims’ rights.” The specific victims of a criminal act deserve to be taken seriously and treated reasonably by all actors in the criminal justice system, from their first police encounter all the way through trial and sentencing. But it is dubious policy to make dispositive victims’ opinions about the disposition of what some call “their” cases and about appropriate penalties for offenders. Reconciling victims with their victimizers is not a bad idea, but in most cases, it may be quixotic, and in no case should it be the only goal of those public officials who are in charge of criminal justice matters.

Retribution and Overcriminalization

The foregoing slog through retribution and its virtues and alleged vices lays the foundation from which this paper may now take aim at overcriminalization. Below are five distinct criticisms of this phenomenon. Each is based upon moral principle. Each cuts deeply. The five are mutually reinforcing in very interesting ways, and the whole may be greater than the sum of its parts. Taken together, these five criticisms support the conclusion that the central case of overcriminalization—viz., a strict liability regulatory offense—is a case of unjust punishment, which is to say that it should not be done.

The following considerations do not address whether any one of the criticisms or some combination of them short of five supports the same conclusion. The effective force of these five criticisms upon secondary and peripheral cases of overcriminalization is also left aside, save to say that these criticisms have considerable extended force.

Criticism #1: Overcriminalization is driven by a desire to deter and is therefore unable to morally justify criminal sanctions.

As the Manhattan Institute’s Marie Gryphon writes:

[O]ften the overriding reason for enacting a piece of legislation is to produce an overall social benefit, and the criminal sanctions attached to certain forms of conduct…are chiefly aimed at conducing to that benefit by deterring that conduct rather than stigmatizing it and punishing the person who carried it out….[17]

Because it is impossible to fit the central case into the retributive framework—and because rehabilitation and moral reform are inapposite too—deterrence is left haplessly to shoulder the whole moral justificatory burden.

It is not altogether misleading to say that the goal of any criminal justice system is that certain conduct become rarer than it otherwise would be, and it is often said that retribution looks backward while deterrence looks forward and anticipates a beneficial societal result (more specifically, less crime). In this formulation of punishment theory, retribution is sometimes said to inflict socially useless suffering upon people and thus to be beyond the pale of worthy social policy. So far considered, it seems that deterrence and not retribution ought to be driving things.

The sole goal of deterrence is to reduce the future incidence of crime. Deterrence thinking is suffused with utilitarian theories of value, which tend toward social engineering in their social analyses. Retribution aims to restore a lost balance of fairness and equality for its own sake and not (as utilitarians would insist) because it is an overall state of affairs which includes proportionally more of goods or values or preferences than it does of corresponding negations, however these matters are determined.

The goal of retribution, though, is to re-establish the balance of fairness in political society. Both theories of punishment thus attempt to have a positive effect on society after the incidence of criminal activity, albeit in different ways. Retribution has the considerable further advantage of being capable of morally justifying criminal sanctions, which deterrence by itself lacks. And deterrent aims may be integrated (up to a point) with retributive moral underpinnings in a functioning criminal justice system, such as our own.[18]

Criticism #2: Overcriminalization disfigures the whole moralistic aspect of criminal law and its enforcement in two very different ways.

The first way arises from the fact that, for the foreseeable future, a criminal conviction will continue to stigmatize the offender as morally deficient: as the possessor of tainted, if not just plain bad, character. But someone convicted in our central case (like others whose punishment cannot be justified on retributive grounds) does not deserve this obloquy. Nor is he rightly made to suffer the many collateral consequences that come with a criminal conviction—being labeled as a criminal offender, being deprived of his right to vote, and many other legal and informal social disabilities and handicaps.

The second distortion stems from the first. Precisely because the central-case defendant is not a moral reprobate, the moral obloquy of criminal conviction is likely to be watered down by its improvident extension to him. This sullying effect is not limited to the precise regulatory offense at issue or to a class of similar offenses. The point is that the social identification of criminal conviction with moral fault will be watered down across the board.

The classic example is overtime parking, a trivial violation of the motor vehicle code that probably everyone who has ever driven has committed at some time. Because everyone has committed that offense, no one treats the matter as evidence of a character flaw. The result is that, for such infractions, society has severed the connection between a moral defect and a criminal offense. Because there are very good reasons to retain and preserve this connection and to preserve it as a common good, overcriminalization portends a potentially serious social loss.

Criticism #3: Overcriminalization creates a scenario in which the central-case defendant can be punished without performing the generic conduct—the liberty grab—that is the moral predicate of just punishment.

The third criticism hearkens back to the retributive understanding of the defining harm of criminal conduct, which is the malefactor’s unilateral grab of more liberty than he is due. This is the morally reprehensible preference for one’s own will over the prescribed legal course and at the expense of the common good, which is the heart of the retributive story.

The central-case offender, however, had no opportunity to choose to comply (or not) with the law. Or he might have chosen to (try to) comply but non-negligently failed to do so. In either event, he does not deserve to be punished, because he has not performed the generic conduct—the liberty grab—that is the moral predicate of just punishment. Because the paradigm individual never chose to commit a morally blameworthy act, society should not punish him with a device (the criminal justice system) that operates best, from a moral perspective, when its application is limited to parties who have grabbed for more gusto than their share allows.

This criticism is complicated by society’s nearly dogmatic systemic commitment to the proposition ignorantia legis neminem excusat—“ignorance of the law is no excuse.”[19] This maxim may be an impregnable—and largely sound—element of our criminal litigation system; at least, any alternative maxim could present problems of proof and might portend too much lawbreaking license. But overcriminalization is not a courtroom issue. It is a policy issue for legislators. In that arena, the anticipation that many people who could be prosecuted for the central-case offense will not have chosen selfishly to prefer their own will is a very good reason not to enact proposed strict liability criminal laws.

Criticism #4: Overcriminalization fails to encourage those who abide by the law.

The fourth criticism is a mirror image of the third. Fully understanding it depends upon a moral imperative as well as a practical exigency heretofore left implicit. The moral imperative is that punishment is necessary to avoid the injustice that would otherwise fester in the wake of any criminal’s unfair usurpation of liberty. This is society as victim. The practical matter is that punishment assures society that crime does not pay and that, by observing the law, the rest of society is not made into hapless losers. This is society as chump. Legal philosopher John Finnis explains this point more fully:

There is a need to give the law-abiding the encouragement of knowing that they are not being abandoned to the mercies of criminals, that the lawless are not being left to the peaceful enjoyment of ill-gotten gains, and that to comply with the law is not to be a mere sucker: for without this support and assurance the indispensable co-operation of the law-abiding is not likely to be continued.[20]

The central-case defendant—one who violates a strict liability regulatory offense—is punished without any evidence that he intended to violate the law, intended to engage in inherently wrongful conduct, or knew that his conduct was wrongful or prohibited by law. Nor is any evidence required that he violated a duty owed to another individual, to a group of individuals, or to society itself. Just as he can scarcely be accused of choosing to usurp liberty that society’s other members deny to themselves, they can scarcely be described as “suckers” for not doing likewise. Just as the central-case defendant had no real opportunity to choose to treat us unfairly, we have no real opportunity to choose to remain within the overall pattern of restraint marked out by law—or not to so choose.

Criticism #5: By eliminating the guilty-mind, or mens rea, requirement and by stipulating punishment for a morally innocuous act which the “wrongdoer” may never have chosen, the central case defies intelligent sentencing.

The fifth criticism turns to how retribution guides the competent lawmaker in creating a schedule of actual sentences. There are two very different faces to this picture, one well focused and the other blurry. Moral principles can tell the lawmaker that assault and theft, for example, should be treated as crimes and that those who commit these crimes should be punished, but moral principles—including those supplied by the retributive justification of punishment—do not by themselves tell the lawmaker which privations should be imposed for those crimes. Nor does moral principle tell the lawmaker how much of any specific privation—confinement, monetary fine, community service, civil disability—is just right.

There is, in other words, a very substantial range of free choice here for the lawmaker. This is the blurry part: The task at hand is guided, but underdetermined, by reason.

The clearer picture is this: A retribution-based understanding of punishment implies that any sentence be doubly proportional—first to the harm caused by the crime and second among the various crimes—so that the more egregious crimes are subject to proportionally greater sanction than lesser crimes. But how is one to distinguish large from small in this context?

No one thinks that the harm of a crime is mainly the tangible loss to a specific victim. If that were the case, then this nation would not have, for example, the many gradations of homicide that it does have, ranging from murder in the first degree all the way down to negligent homicide, then off the criminal chart entirely to actionable civil homicides, and then to cases in which one person causes the death of another without acting unlawfully at all. (The latter include genuine accidents and justified killings, such as those committed in self-defense.) Attempts to commit crimes—particularly the most reprehensible crimes such as murder, rape, kidnapping, and armed robbery—are generally punished at just a shade less than the punishment for consummated offenses. But if tangible, realized harm were the metric, then it would be hard to justify punishing attempts at all.

Clearly, the U.S. criminal justice system is predicated upon an understanding of crime as—in some very basic way—a matter of bad choices. By fleshing out those bad choices as unfair grabs of liberty, retribution helps supply a common measure of the harm done in every crime.

This is not to say that the more tangible damage done by a criminal’s bad choice does not matter at all. Someone who chooses intentionally to kill another human being has demonstrated an extraordinary preference for his own freedom of choice and has exercised it in gross disregard for the equal liberty and equal dignity of another person. This murderer’s usurpation is much greater and more heinous than that of the petty thief, and they should each be sentenced accordingly.

The final criticism, plainly stated, is that by eliminating the guilty-mind, or mens rea, requirement and by stipulating punishment for a morally innocuous act which the “wrongdoer” may never have chosen, our central case defies intelligent sentencing. The central case swings free of the proffered common metric and would seem destined to gauge an appropriate sanction either arbitrarily or by exclusive reference to the raw tangible damage wrought by the putatively criminal act.

Gerard V. Bradley, a noted scholar in the fields of constitutional law and law and religion, is a professor of law at Notre Dame University and teaches in Notre Dame’s Trial Advocacy program.


Gibson Guitar Raid: Much to Fret About

Originally published at National Review by Pat Nolan

Federal prosecutors are proving themselves too highly strung.

With military precision, the federal officers surrounded the building, donned flak jackets and helmets, readied their weapons, burst in, and forced terrified employees out at gunpoint. Officers ransacked the facility, seizing computers, papers, and materials.  TOP ARTICLES4/5READ MOREDisney CEO Bob Iger Steps Down

It was the second raid in three years by the Fish and Wildlife Serviceon Gibson, maker of the famous Les Paul guitar. The situation would be laughable, if the consequences for Gibson weren’t so dire.

The law that Gibson allegedly violated is the Lacey Act, which bars importation of wildlife or plants if it breaks the laws of the country of origin. It was intended to stop poachers. The ebony and rosewood that Gibson imported was harvested legally, and the Indian government approved the shipment of the wood. But Fish and Wildlife bureaucrats claim that, because the wood was not finished by Indian workers, it broke Indian law. In other words, a U.S. agency is enforcing foreign labor laws that the foreign government doesn’t even think were violated.

#ad#“In two cases we had a SWAT team, treating us like drug guys, come in and shut us down with no notice,” lamented Gibson chairman and CEO Henry Juszkiewicz. “That’s just wrong. We’re a business. We’re making guitars.” Juszkiewicz says the raid, seizures, and resulting plant closure cost Gibson more than $1 million.

This abusive treatment of a legitimate business like Gibson is not an isolated incident. Small businesses have been similarly raided, and their officers imprisoned, for such minor offenses as importing lobster tails in plastic rather than cardboard (three men were given eight-year prison sentences) and sloppy labeling on imported orchids (the accused was given a 17-month sentence).

The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)

It is time to get the criminal law back to basics. Fighting terrorism, drug cartels, rapists, and murderers is enough to keep law enforcement busy. To expand that fight to include such esoteric social causes as protecting Indian workers dilutes the resources needed to fight real crime. Why do we care who finishes the wood on guitars? And why are we applying the power of the state in its rawest form to enforce Indian labor laws?

Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.

If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched.

The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.

A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.

The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.

Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

America has become overcriminalized.The Gibson raids highlight how America’s criminal-justice system has become a Rube Goldberg contraption of laws and sentencing policies that have no consistent focus — and there is little relationship between the length of the prison sentence and the harm caused by a violation.

When the Constitution was adopted, there were three federal crimes: treason, piracy, and counterfeiting. Now, there are more federal crimes than we can count — literally. The Congressional Research Service tried to tally the number of crimes sprinkled throughout federal codes, but gave up at 4,450. That does not include more than 10,000 regulations that carry criminal penalties. It’s a wonder anyone can survive 24 hours without violating some obscure statute or rule.

And while Gibson has yet to be formally charged, why would the government choose to pursue the company under criminal laws, seeking to send the officers of the company to prison? The power to imprison is the one of the most severe authorities we cede to government. The lives of incarcerated people are not their own: They cannot choose where to live, with whom to associate, when to eat, or what to do with their time. Because it carries such harsh sanctions, criminal law has always been reserved for morally reprehensible acts such as murder, rape, arson, and robbery.

However, federal bureaucrats no longer feel constrained to limit criminal prosecutions to blameworthy actions that virtually everyone in society would agree are morally wrong. After all, in the age of moral relativism, who is to say what is moral or not? Instead, this moral basis of the law has been cast aside in favor of a broad authority to criminalize conduct that Congress (or, more likely, a mere handful of legislative staffers or agency bureaucrats) decides is “wrong.” Whereas behaviors were once criminal because they were inherently bad, modern law makes certain actions criminal merely because a majority of legislators think they should be prohibited, and criminal sanctions are imposed to make it clear the lawmakers really, really don’t like the conduct.

By unpinning criminal law from its moral roots, we now impose the harshest sentences on activities that are deemed improper by those with the loudest voices. Thus, the lobster fishermen who shipped their catch in the improper containers received longer sentences than some murderers. And Gibson is raided by federal commandos not because the company poses a threat to anyone, but merely because the American government has found it to be in violation of India’s labor laws.

This is government by whim, and these “whim” crimes are not based on evil intent. In fact, they require no intent at all. They are “strict liability” crimes — you don’t have to know you are acting unlawfully to be sent to prison.

#ad#The Heritage Foundation points out that “a core principle of the American system of justice is that no one should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.” These whim laws have discarded the centuries-old requirement of mens rea, or guilty intent. From today’s perspective, the old adage “ignorance of the law is no excuse” assumes that it is possible to know all the intricacies of tens of thousands of federal statutes and regulations. Nonetheless, if we inadvertently violate one of them, we face years in prison. We are modern Gullivers, tethered to the ground by the sinews of the criminal law.

Fortunately, many are fighting against this distressing trend. Groups as diverse as the Heritage Foundation, the American Civil Liberties Union, Prison Fellowship, the Cato Institute, and the National Association of Criminal Defense Lawyers have joined forces under the leadership of former Attorney General Ed Meese to fight the overcriminalization of America.

Meese is also active in Right on Crime, a group of leading conservatives working to apply free-market, conservative principles to the criminal-justice system. Some of the prominent conservative signatories of the Right on Crime Statement of Principles are Bill Bennett, Jeb Bush, Newt Gingrich, Asa Hutchinson, Chuck Colson, and Grover Norquist. We believe that “criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.” Congress needs to rein in runaway federal prosecutors who are threatening legitimate businesses. They can start by bringing DOJ officials before a public hearing to inquire into the raids, and ask some questions. What criteria does the DOJ use to send in a SWAT team when a subpoena would suffice? Why is it a priority of U.S. law enforcement to enforce Indian labor laws that India is not enforcing? Why doesn’t federal policy require that interviews be recorded?

Alexis de Tocqueville warned that the greatest danger to a democracy was “soft despotism”:

It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Congress needs to act quickly before the federal government compresses, enervates, extinguishes, and stupefies us. They need to bring our criminal laws back to basics: Get off the backs of businesses and keep us safe from truly dangerous and morally wrongful behavior.

— Pat Nolan is vice president of Prison Fellowship and director of its criminal-justice-reform division, Justice Fellowship.


Doing Violence to the Law: The Over-Federalization of Crime

Originally published at The Heritage Foundation by Brian W. Walsh | 6/9/2011

The rapid expansion of federal criminal law, beyond almost all prudential and constitutional limits, may not be the first thing to leap to mind when one thinks of key problems with American criminal law. But the existence now of over 4,450 federal criminal offenses is itself a problem that implicates the foundations of the criminal law. The number of federal offenses is too great for Ameri­cans to be familiar with all of the conduct that is criminal, and many of the offenses themselves are deeply flawed, omitting essential substantive elements necessary to pro­tect the innocent. As a result of these flaws, the federal criminal code fails to serve what may be its most impor­tant function, which is not to expose and punish the relatively few persons who consciously choose to engage in criminal conduct, but to inform citizens of the law’s requirements, thereby equipping them to avoid the con­duct deemed worthy of society’s most severe penalty and moral censure.

The explosion of the federal criminal law—both in the number of offenses and their overall scope—demands that legal reformers revisit basic assumptions about what crimi­nal law is and how best to rein in its actual and potential abuses. Over the last forty to fifty years, government at all levels has succeeded in convincing Americans that the criminal law is whatever legislators define it to be. Ill­ conceived new criminal offenses occasionally raise an eye­brow or two, but Americans generally accept their legitimacy. The result is that Americans have come to rely, consciously or not, on the good graces of prosecutors and the laws of probability to shield them from prosecution. When lightning does strike and an otherwise law-abiding citizen is charged and convicted for conduct that is not traditionally criminal or necessarily even wrongful, most Americans convince them­selves that the accused must have done something to warrant the prosecutor’s attention. Yet while Americans remain incredulous that improper criminal laws could be used to convict someone who had no intention of doing anything wrongful, the reality is otherwise.

I. Substantive Protections

“An unjust law is a code that is out of harmony with the moral law,” wrote Martin Luther King, Jr., who had no lit­tle experience with unjust law. Many federal criminal offenses fall far short of this standard because they do not require an inherently wrongful act, or even an act that is extraordinarily dangerous. In the days when average citi­zens were illiterate, they could still know and abide by the criminal law. At that point, most criminal offenses addressed conduct that was inherently wrongful­—malum in se—such as murder, rape, and robbery. That is no longer the case. Most of today’s federal offenses crimi­nalize conduct that is wrong only because it is prohibited—malum prohibitum.

Worse, many of these prohibitions are actually contrary to reason and experience, giving average Americans little notice of the content of the law. For example, few would imagine that it is a federal crime for a person to violate the terms of service of an online social networking site by reg­istering with a fake name, as a recent federal indictment in Los Angeles alleges. Indeed, many Americans might instead expect this behavior to be protected, for it pro­motes privacy and anonymity and, by extension, the personal safety of vulnerable users. Another example: Unauthorized use of the 4-H organizations logo is a fed­eral crime. There are undoubtedly reasons that these laws are on the books, but they are not reasons that average law-abiding Americans would be likely to anticipate when trying to conform their conduct to the law’s requirements.

Exacerbating the criminalization of an ever-increasing array of behavior that is not inherently wrongful is the crumbling of traditional protections in the law for those lacking wrongful intent. Historically, a criminal conviction required that a person both

committed an inherently wrongful act that consti­tuted a serious threat to public order, and did so with a guilty mind or criminal intent, that is, mens rea.

These two substantive components were essential for con­viction in almost all criminal cases from the time of the American founding through the first decades of the 20th century.

But over the past few decades in particular, Congress has routinely enacted criminal laws that lack mens rea requirements or that include mens rea requirements that are so watered down as to provide little or no protection to the innocent. As a result, honest men and women increas­ingly find themselves facing criminal convictions and prison time. This happens even when their “crimes” are inadvertent violations that occur in the course of otherwise lawful, and even beneficial, conduct.

Despite increasing attention to this problem in recent years, the trend is for fewer and weaker mens rea require­ments. In a recent study, Professor John Baker found that seventeen of the ninety-one federal criminal offenses enacted between 2000 and 2007 lacked any mens rea requirement whatsoever. The Heritage Foun­dation and the National Association of Criminal Defense Lawyers will soon publish the results of their joint research into the mens rea provisions in bills introduced in the 109th Congress. Preliminary findings reveal that the majority of those offenses lack a mens rea require­ment sufficient to protect from federal conviction anyone who engaged in the specified conduct but did so without criminal intent.

Many lawyers seem to accept uncritically the idea that any act made criminal by a legislature is, by that fact alone, an actus reus. But to accept that definition is to obliterate the meaning of actus reus, for the term would be a mere synonym for “act that has been made criminal.” The prob­lem may be best illustrated using some of the “criminal” laws made and enforced by totalitarian regimes. For exam­ple, in some communist countries it was deemed a “criminal” act for relatives of politically or religiously perse­cuted persons to discuss their relative’s persecution, even in private and even with other family members. In some regimes, any type of unauthorized communication with a foreigner was deemed a “crime.” Regardless of any elabo­rate (or convoluted) logic and rhetoric that may be used to justify criminalizing such conduct, it is evident that there is no actus reus in these so-called crimes.

Similarly, but to a lesser extreme, when Congress makes it a federal crime to violate any foreign nation’s laws or regulations governing fish and wildlife—as it has done in the Lacey Act—many violations will be “crimes” that include no actus reus. Some of those foreign regula­tions may do nothing more than protect the foreign nation’s local business interests. For example, the fishing regulations of a small Central American nation might require fishermen to package their catch in cardboard, perhaps only in order to stimulate business for a domestic cardboard manufacturer. If a fisherman then packs his catch taken in that nation’s waters in plastic rather than cardboard and imports into the United States—in viola­tion of the express terms of no federal or state law of the United States—is there a real actus reus? Answering yes leads to the absurd conclusion that Congress could, with a single sentence in a single legislative act, make it a crime to violate any and every law of every nation on earth—and that every such offense thereby includes a meaningful actus reus. Such may be positive law, but they are not “crimes” in the truest sense of the word; they are merely legislatively created offenses that are unworthy of any free nation’s criminal law.

The size of the federal criminal law compounds these problems and undermines other protections. The Princi­ple of Legality, for example, holds that “conduct is not criminal unless forbidden by law [that] gives advance warning that such conduct is criminal.” The sheer num­ber and disorganization of federal criminal statutes ensures that no one could ever know all of the conduct that has been criminalized. Those who have tried merely to count all federal offenses—including both Professor Baker and the Justice Department itself—have been able to provide only good estimates. The task proves impossi­ble because offenses are scattered throughout the tens of thousands of pages of the United States Code (not to men­tion the nearly 150,000 pages of the Code of Federal Regulations). If criminal-law experts and the Justice Department itself cannot even count them, average Amer­icans have no chance of knowing what they must do to avoid violating federal criminal law.

II. The Threat to Liberty

The power to punish criminally—including the depriva­tion of one’s personal liberty and even one’s life—is the greatest power that government regularly exercises with respect to its own citizens. As Professor Herbert Wechsler famously characterized it, criminal law “governs the strongest force that we permit official agencies to bring to bear on individuals.” Perhaps the central question that the Framers of the Constitution and the Bill of Rights debated, and to which they gave painstaking considera­tion, was how best to protect individuals from the unfettered power of government. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in our founding docu­ments significant safeguards against unjust criminal prosecution, conviction, and punishment.

In fact, they understood so well the nature of crimi­nal law and the natural tendency of government to abuse it, that two centuries later, the most important procedural protections against unjust criminal punish­ment are derived directly or indirectly from the Constitution itself, specifically the Fourth, Fifth, Sixth, and Eighth Amendments.

But despite these protections, the wholesale expansion of federal criminal law—both as to the number of offenses and the subject matter they cover—is a major threat to Americans’ civil liberties. Each time Congress crafts a criminal law covering a new subject matter, it effectively expands the power of the federal government. And the types of crimes that Congress now often creates—lacking a true actus reus or a meaningful mens rea requirement­—can effectively circumvent the Bill of Rights’ procedural protections.

Of similar concern, criminal offenses that exceed the limits of Congress’s limited, enumerated power are breaches of one of the primary structural limitations that constitutional federalism imposes on the federal govern­ment. After countenancing for decades Congress’s almost unlimited criminalization of conduct that is inherently local in nature (as long as, that is, the Constitution’s Com­merce Clause was invoked to justify the assertion of congressional authority) the Supreme Court rediscovered constitutional limits in United States v. Lopez and United States v. Morrison. In both of these cases, the Court explained that such limits on federal commerce power are consistent with and flow from the fact that Congress is a body of limited, enumerated powers.

The federal offense of carjacking is a quintessential example of Congress’s overreaching assertions of federal criminal jurisdiction. The federal carjacking offense is cur­rently defined as taking a motor vehicle “from the person or presence of another by force and violence or by intimi­dation.” The federal jurisdictional “hook” for this carjacking offense is that the vehicle must have been “transported, shipped, or received in interstate or foreign commerce,” but how many vehicles have not? Actual com­missions of carjackings take place almost uniformly within a single locale of a single state, yet federal crimi­nal law now purports to authorize federal prosecutors to be the ones to charge and prosecute local carjackings. Such breaches of constitutional federalism are not mere breaches of technical and theoretical niceties, for the power to criminalize is the power to coerce and control. The purpose of constitutional federalism is akin to the purpose of limited government itself: to guard against accumulation of power by a single sovereign—i.e., the fed­eral government—as a “double security . . . on the rights of the people.” Thus, if there were no limits on Con­gress’s power to criminalize, there would be no limits on the power of the federal government to coerce and control Americans.

III. Prospects for Reform

The “overcriminalization” problem is so widespread and pervasive that it is tempting to think that reform is futile. But there is reason to hope that Congress may change its ways. The over-federalization of crime is not a partisan issue, and both major parties stand to benefit from fight­ing over-federalization once the public is better educated about the problem and its implications. With regard to the criminal law, Democrats generally recognize that the power to make laws and decisions about the enforcement of those laws should reside as closely as possible to those who will be most affected. Washington should in most cases not be dictating which members of the community should be locked up and for what conduct. Many Republi­cans tend to view constitutional federalism as a check on the unwarranted and potentially dangerous accumulation of power by a central government. Once they understand the mechanics and implications of the over-federalization of crime, Americans who support either party are likely to understand over-federalization as a grave threat to their rights and liberties.

Although most members of Congress remain prone to viewing their being “tough on crime” at the federal level as a hedge against unemployment, that tide is turning. Influ­ential Senators and Representatives of both parties are beginning to recognize the real-world effects of the over-­federalization of crime on individuals and communities in their home states and districts. Certainly nothing requires Congress to legislate to the full extent allowed by the Supreme Court’s Commerce Clause jurisprudence. Some members of Congress thus have begun to work to change the political environment and block bills that would expand the reach of federal criminal law beyond prudential or constitutional limits. These leaders include Representatives John Conyers (D-MI), Louie Gohmert (R-TX), and Bobby Scott (D-VA) as well as Senators Jeff Sessions (R-AL) and Sam Brownback (R-KS). The projects of all those who advocate for the reform of federal criminal law would be advanced by reaching across real and per­ceived political boundaries to shape a coalition working to ensure that all new criminal offenses adhere to the funda­mental principles of sound criminal law.

In the long run, no one benefits when the federal government indiscriminately criminalizes conduct without regard to prudential and constitutional limitations. Perversely, overcriminalization undermines the rule of law over time, even as it chips away at liberty. Narrow special interests that pressure Congress to add criminal offenses that are not warranted by constitutional norms or prudence play a dangerous game with our freedoms. No one, Democrat, Republican, or otherwise, should countenance it.

Brian Walsh is a senior fellow at The Heritage Foundation.


Heritage Report: Solutions for America: Overcriminalization

Originally published at The Heritage Foundation by Marion Smith | 8/17/10


Federal criminal law has exploded in size and scope—and deteriorated in quality. Honest, hard-working Americans doing their best to be respectable, law-abiding citizens can no longer be assured that they are safe from federal prosecutors. Federal criminal law used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of socially and economically beneficial conduct is criminalized. More and more Americans who are otherwise law-abiding are being trapped and unjustly punished. Congress must halt its overcriminalization rampage and begin to eliminate vague, overbroad criminal offenses that punish good people who violate one of the tens of thousands of federal criminal offenses without criminal intent.


  • Explosion of Federal Criminal Law. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008. Moreover, there is no letup in sight; rather, the pace appears to be constant or even accelerating.
  • Criminalization by Bureaucrat. Scores of federal departments and agencies have created so many criminal offenses that the Congressional Research Service itself admitted that it was unable even to count all of the offenses. The Service’s best estimate? “Tens of thousands.” In short, not even Congress’s own experts have a clear understanding of the size or scope of federal criminalization.
  • Deeply Flawed Criminal Offenses. The Heritage Foundation and the National Association of Criminal Defense Lawyers reported in May the results of a joint study finding that three out of every five new nonviolent offenses lack a criminal-intent requirement that is adequate to protect from unjust criminal punishment Americans who engaged in conduct that they did not know was illegal or otherwise wrongful.
  • Breakneck Pace Continues. Despite this rampant overcriminalization, Congress continues to criminalize at an average rate of one new crime for every week of every year (including when its Members are not in session). All inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses.


  • Congress Must Justify All New Criminalization. Because federal law has already criminalized all inherently wrongful conduct many times over, Congress should be required to provide written analysis and justification of every new or modified criminal offense or penalty. The report should include a description of the problem each offense or penalty is intended to redress, any specific cases or concerns motivating the legislation, and a review of any overlaps it will have with existing federal and state law.
Explosive Growth of Federal Criminal Law
  • Congress’s Carelessness Should Not Endanger You. Federal law should codify the Rule of Lenity, thereby ensuring that the benefit of the doubt under vague, overbroad laws goes to the person being prosecuted, not to the government.
  • Honest Mistakes Should Not Result in Prison Time. Every criminal conviction must require proof beyond a reasonable doubt that the person acted with criminal intent. Federal criminal laws should require such proof. The time when a person can be arrested and incarcerated for failing, for example, to affix a federally mandated sticker to an otherwise lawful UPS package must come to an end.
  • Bureaucrats Should Not Be Making New Crimes. Congress should not “delegate” its power to criminalize to unelected officials in the scores of federal departments and agencies that it has created. Both common sense and constitutional principles hold that the decision as to whether something is important enough to send a person to federal prison should be made by the American people’s elected representatives.
  • Repeal Unjust Laws. Congress seems to have forgotten that it can repeal bad laws. It can and should. The worst, most unjust criminal offenses should be thrown into the legislative dumpster. Congress should start with offenses that allow Americans to be punished as criminals even if they did not know that they were doing something unlawful or otherwise wrongful and offenses that are vague, overbroad, or cannot be understood even by lawyers.