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Elonis v. United States and the Mens Rea Debate

Originally published at National Review by Jonathan Keim | June 3, 2015

On Monday the Supreme Court did something interesting in Elonis v. United States, a case about the interstate threat statute and its application to Facebook status messages. Although widely viewed as a case with great significance for the First Amendment’s application to social networking, the Court sidestepped the constitutional question and dove straight for the overcriminalization issue: default mens rea. A 7-2 majority lined up behind the Chief Justice to strike down the conviction, with Justices Thomas and Alito writing separately.

Mens rea – the criminal law’s requirement of a guilty mind – is usually the sine qua non of a typical criminal offense. In most cases, the mens rea is the difference between a tort and a crime: Negligently hitting someone with a baseball bat might subject you to money damages from the victim, but you won’t go to jail unless you fight the sheriff who comes to attach your car (or home) to pay the judgment. If you hit the victim knowingly or intentionally, however, you’ll probably go to jail. Of course, the lines between criminal and non-criminal acts are somewhat blurrier in practice. Some statutes create “strict liability” crimes, which require no proof whatsoever of a guilty mind, while others penalize various types of accidents. 

Elonis was originally briefed with two questions in mind (one statutory, one constitutional) about what mens rea attaches to the interstate threat. The two questions presented focused on whether a subjective intent to threaten is necessary for a conviction under 18 U.S.C. § 875(c). The defendant argued that the meaning of the word “threat” implies an intentional act and that in any event, Virginia v. Black (2003) requires the charged communication to be a “true threat.” The government responded that the statute doesn’t state a mental state with respect to the nature of the threat, so it should be construed as imposing a much lower standard than several similar statutes.

The majority (with the Chief writing) tossed the conviction, rejecting the government’s statutory argument that the mens rea for the crime was strict liability or negligence (citations omitted):

We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” As Justice Jackson explained, this principle 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.” The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” We therefore generally “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.”

This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, our cases have explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” even if he does not know that those facts give rise to a crime.


Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks— “reduces culpability on the all-important element of the crime to negligence,” and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes.” Under these principles, “what [Elonis] thinks” does matter.

Though the majority rejected negligence as the mens rea, the Court stopped short of specifying what mens rea was the right one. Justice Alito objected to this omission, concurring with the majority’s reasoning but dissenting from its refusal to establish “recklessness” as the appropriate standard. On this point, Justice Alito agreed with Justice Thomas’s dissent that “recklessness” was both a constitutionally permissible mens rea under the First Amendment for this case and the proper minimum mens rea under the case law. Justice Thomas likewise criticized the majority’s failure to articulate the applicable standard, but directed most of his vigorous dissent at the majority’s articulation of the appropriate common law background standards.

Elonis is more important for what it leaves open than what it resolves. The Court didn’t supply an answer to what minimum mens rea would apply generally to federal criminal statutes under the background principles for interpretation of criminal statutes. This leaves the door wide open for Congress to pick up where the Court left off and pass its own default mens rea statute. In that respect, Elonis leaves primary responsibility for scaling back the mens rea problem right where it should be: Congress.


Heritage Report: Shining a Light on Over-Criminalization

Originally published at The Heritage Foundation by Jordan Richardson | June 1, 2015

Overcriminalization—the overuse or misuse of the criminal law to address societal problems—is a troubling phenomenon that touches every segment of society.[1] It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability.[2]

However, overcriminalization has a more tangible aspect beyond legislation and legal theory: For every problematic law or criminal procedure, there is a victim with a story to tell. Those victims include three fishermen in Florida who were sentenced to over six years in prison for importing lobsters packed in plastic rather than paper,[3] a North Carolina man who was jailed for 45 days for selling hot dogs without a license,[4] and an autistic teenager from Pennsylvania who was threatened with wiretapping charges after he recorded being bullied in school by his classmates.[5] American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.

The Heritage Foundation has made it a priority to report instances of overcriminalization and provide solutions to the root causes of this issue. One of the more effective ways to explain the importance of reform is by telling the stories of people who have been hurt by abuse of the criminal law.[6] It is common to discuss changes in the system in terms of legislation or arcane legal concepts, but seeing the human side of overcriminalization is much more powerful.

Public Pressure

Reporting stories of people who have been needlessly and callously caught up in the criminal justice system has a two-fold benefit: First, it informs the public of the serious nature of overcriminalization and how it could equally harm them too; second, it exposes public officials and law enforcement officers who engage in misbehavior or exercise terrible judgment. The latter effect, especially, could help both to alter outcomes for individuals who are victimized by overcriminalization and to provide a catalyst for change.

During the past year, The Heritage Foundation has recounted the stories of people who were victims of overcriminalization. In several of these cases, positive outcomes ensued, in all likelihood as a result of the public ridicule that such injustices received. Although there is no quantifiable method to determine whether media pressure was the deciding factor that influenced public officials to reverse course after pursuing charges or fines against these individuals, it is wise to heed former Supreme Court Justice Louis Brandeis’s wisdom: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”[7]

The following examples are illustrative:

  • Lazaro Estrada was arrested and charged with obstruction of justice for simply filming a Miami police officer who arrested his friend.[8] Despite the fact that citizens should be presumptively free under the First Amendment to film officers in public places,[9] Estrada faced significant punishment for turning on his camera. After his video of the incident went viral, the charges against Estrada were dropped.
  • Shaneen Allen, a single mother from Pennsylvania, was arrested after being pulled over for a traffic violation and the officer was informed that she had a handgun in her car.[10] Allen legally registered the gun in her home state and mistakenly assumed that it was legal for her to travel with it for protection across state lines. Her mistake could have sent her to prison for three years. After immense media pressure, the prosecutor allowed Allen to enter a diversion program, and New Jersey Governor Chris Christie subsequently pardoned her.
  • Arnold Abbott, a 90-year-old charity worker from Fort Lauderdale, Florida, was threatened with arrest and a $500 fine for feeding homeless people in the local city park.[11] A city ordinance required Abbott to comply with strict food handling and facility regulations—a mandate that would have made it nearly impossible to feed hungry people. Publicity from major news outlets soon prompted city officials to allow Abbott to continue his charitable works.

Examples of government overreach extend beyond criminal charges. In several instances, local governments have attempted to enforce inapplicable or obscure regulations that essentially prohibit ordinary behavior.

  • Spencer Collins, a nine-year-old boy from Leawood, Kansas, built a miniature library box in his front yard as a Mother’s Day gift. Local authorities levied a $500 fine against Spencer’s family and threatened to tear down the library because the box supposedly violated an ordinance against freestanding structures. Public outrage forced the city to reconsider, and the ordinance was amended to allow citizens to build little libraries.[12]
  • Tiffany Miranda, a 10-year-old girl who suffers from a serious and incurable disease called Lennox-Gastaut syndrome, received her very own playground from the Make-A-Wish Foundation. The city government of Santa Fe Springs, California, ordered Tiffany’s parents to tear down the playground because, in their estimation, it was a “public nuisance.” After facing an intense media backlash for trying to crush the dreams of a little girl with a serious illness, city officials quickly backtracked and allowed the playground to stay.[13]

Stories like these illustrate both the human cost of overcriminalization and the absurd but all too real instances of governmental overreach in general. In all of the cases mentioned here, media and news reports informed the public about how law enforcement officials were unfairly or wrongly targeting their fellow citizens. As a result, public pressure was the catalyst to convince the authorities to reverse course. Awareness precedes reform.

Reform Is Needed

The sobering reality of overcriminalization is that there are many more stories of victims that have not received media attention. Although we should applaud the decision of public officials who eventually recognized that they had overstepped their authority and reversed course, there is still much more to be done. Shaneen Allen, the single mother who faced three years in prison, now has her life back after receiving a pardon from a governor, but not everyone is so fortunate as to have a high-level official intervene in his or her case. Many voices go unheard.

If overcriminalization is left unchecked, it will continue to be a problem. Our Founders warned us long ago about the dangers of an expansive legal system that arbitrarily creates and enforces numerous criminal laws. James Madison, writing in the Federalist Papers, stated:

It will be of little avail to the people, that the 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; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?[14]

When ordinary people are turned into criminals for engaging in morally blameless behavior, the legitimacy of the justice system is undermined. Serious reform is essential.


Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law. The criminal justice reform movement should focus on telling the stories of those who are affected by an overly zealous government and the excessive power of the state.

Only by identifying the problem and highlighting why it matters will any meaningful change take place. Overcriminalization is not an easy problem to solve, but it is one that demands our attention.

—Jordan Richardson is a former Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.


Heritage Report: Overcriminalization: The Legislative Side of the Problem

Originally published at The Heritage Foundaton by Paul J. Larkin, Jr. | 12/13/11

Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.

The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.

Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers.[1] But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Those difficulties are discussed here.

Legislative Limitations

Legislators have few options in addressing criminal justice problems. To start, they cannot get involved in the decisions in a specific case. The Due Process Clause of the Constitution quite rightly keeps legislators from meddling with specific defendants in particular cases, and any attempt to do so can (at least potentially) compromise the government’s ability to prosecute that party.

Passing legislation, approving law enforcement agencies’ budgets, and conducting public oversight hearings are the principal tools that legislators can employ to affect the crime rate, but those options have their limitations. The last two options work only indirectly by, for example, increasing the number of investigative and support personnel or spurring the existing ones to do a better job. Only through legislation creating new crimes, upping the sentences for offenses already on the books, or reducing the procedural or evidentiary burdens on the police and prosecutors can a legislator have a direct effect on crime.

Even then, however, there are additional limits. The Ex Post Facto and Bill of Attainder Clauses (Art. I, §9, Cl. 3 and § 10, Cl. 1) keep legislators from pursuing the most direct ways to deal with crime: passing a new criminal statute making past conduct an offense, retroactively enhancing the penalties already on the books, or making an outlaw out of a specific individual in a statute itself.

Each of these limitations serves legitimate, important purposes. Ironically, though, they sometimes can wind up channeling legislators into waters that create problems at least as serious as the ones that the U.S. Constitution seeks to avoid.

A New Set of Problems

Since the 1960s, the Supreme Court of the United States has regulated the investigative and trial processes. Using the Fourth, Fifth, and Sixth Amendments as the vehicles, the Court has fenced in nearly every investigative and trial technique—e.g., searches, seizures, arrests, interrogation, lineups, discovery, questioning or immunizing defendants and witnesses, and so forth—with a variety of different rules. The Court also has made clear that Congress cannot tamper with the rules it has created, such as the now-(in)famous Miranda warnings.[2]

But the Court has left unregulated the legislature’s prerogative to define crimes and affix punishments, as well as a prosecutor’s ability to exercise discretion in charging and plea bargaining. As the late Harvard Law School Professor William Stuntz has noted, the result is that, in today’s criminal justice system, those two players have become closer allies than ever.[3]

Here is how such an alliance develops: Some legislators, acting on the presumption that prosecutors will exercise judgment in deciding how far to push the edge of the envelope, will write broadly worded statutes in order to maximize the prosecutor’s discretion. Other legislators, assuming (and perhaps hoping) that expanding criminal liability will affect only those near the periphery of the laws in existence, also will support expanded criminal liability and lengthier sentences because they, too, do not expect prosecutors to go hog wild with their enhanced weapons.

The result is that even legislators acting solely with the public interest in mind will wind up enacting new criminal laws that no one expects to receive the broad construction that their text permits. Of course, other, perhaps less noble-minded legislators will see the process as a no-lose situation: They create the appearance of having remedied a social ill without any risk of a backlash from a politically powerful constituency and without the burden of deciding how to apply the law on a case-by-case basis.[4]

By contrast, there is little constituency for cutting back on the reach of the criminal law. Loosening criminal procedures can be justified on the grounds of de-handcuffing the police or bolstering the efficiency of the trial process. Tightening those same procedures can be supported by the need to protect the innocent or everyone’s civil rights. Broadening the reach of the criminal law can be sold as an effort to reach miscreants that the courts mistakenly (or involuntarily) let walk or as an attempt to adapt old laws to new criminal schemes. That much is fairly straightforward.

What argument, however, will persuade legislators to cut back on a prosecutor’s or court’s generous reading of a criminal statute or to reduce the number of years of imprisonment that a law authorizes? That the legislature previously got it wrong? That the courts erred in sending guilty people to jail? That the prosecutor abused the authority that the legislature gave him and the courts upheld? After all, the courts are widely seen as being experts in interpreting criminal laws; legislators ordinarily support prosecutors’ desire to maximize the weapons at their disposal in the interest of fighting crime; prosecutors ordinarily serve the public good when making charging and plea decisions; and, if the law were unquestionably just and justly prosecuted without exception, there might be no better example of letting the guilty go scot-free.

As a result, few legislators may see any benefit from being “soft on crime,” and if legislators do not care about overcriminalization, why should the public?

“Hard” vs. “Soft” on Crime: A Misguided Legislative Tendency

Why is the legislative tendency toward overcriminalization misguided? There are three short answers.

First, there is the principle that Chief Justice John Marshall articulated in Marbury v. Madison in 1803: “The Government of the United States has been emphatically termed a government of laws, and not of men.”[5] Leaving the interpretation of criminal laws to regulatory agencies, prosecutors, and courts turns that proposition on its head. The legislatures themselves should define the laws so that the average person knows just where the line is that divides lawful from unlawful conduct and just how closely it can be approached.

Second, having overly broad laws or laws whose elements are filled in by politically unaccountable regulators runs afoul of the criminal law tenet, traceable to the laws of the ancient Greeks and often voiced in the Latin expression nulla poena sine lege, that there is no punishment without law.[6] A law that is not readily available to or understandable by the average member of the public is tantamount to no law at all. In fact, the proposition that the public should be able to—and can—find, read, and understand the law, particularly the criminal law, is the moral foundation for the well-known proposition that “ignorance of the law is no excuse.” Take away the practical ability to read and understand the law, and the moral justification for using the criminal law as a tool for regulating conduct is also lost.

Third, making the same conduct a crime under numerous federal criminal statutes allows a prosecutor to threaten a defendant with a potentially massive sentence if he forgoes a plea offer and goes to trial.[7] Absent case-specific proof of racial animus or some other invidious intent, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer.[8] Thus, there is a good deal to be said for reining in the overcriminalization process.

There is one other point worth raising separately: The modern practice of making more and more conduct criminal or upping the penalties already on the books for existing crimes can be a misguided way to run a railroad. There already are thousands of federal criminal laws on the books—so many, in fact, that no one knows exactly how many there are.[9] But Senators and Representatives introduce bills that would create new crimes during every session of Congress.

Why? Are the laws on the books inadequate to the task? There is no doubt that technical or scientific advances (e.g., computers) can require new criminal legislation to address novel problems, and changing societal mores can justify revisiting familiar laws (e.g., spousal abuse). But does this nation really need dozens of laws (with more recommended by each new Congress) dealing with lying, cheating, stealing, and fraud?[10] Does America need to add a criminal penalty for the violation of every new commercial, safety, and environmental law? Does adding to the length of the terms of imprisonment for old crimes truly add anything to the retributive, deterrent, and incapacitative effect of the law? If it does, is that benefit worth its costs?

Perhaps legislators should turn their attention to engaging in oversight of the federal, state, and local law enforcement agencies that they arm with new weapons every time one of those bills is signed into law. Perhaps legislators should inquire what beneficial effect society is getting from the legal changes that have occurred over the past quarter-century before adding to the corpus of criminal law. Perhaps legislators should conduct, or demand that someone else accomplish the task of completing, a cost-benefit analysis of the existing body of criminal law before making it bigger.

That type of work is difficult and takes a long time to do well, but maybe it is more important than simply passing a new criminal law and declaring victory over, or even just taking credit for dealing with, a particular crime problem.

Public Awareness: The Key to Combating Overcriminalization

The Supreme Court has rewritten the rules of investigation and trial practice, and those rules will keep some innocent parties from being wrongly convicted, but regulating the procedure used by the police and lawyers will accomplish only so much. As long as lawmaking, charging, and plea bargaining are off-limits to the courts, there will be a risk that innocent parties will be charged with conduct that cannot and should not reasonably be deemed a crime but that exposes them to such a terrifyingly long prison term that, as a practical matter, they have little choice but to accept a plea deal offered by the prosecutor.

The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.

Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation.


In Jail for Backed-Up Toilets

Originally Published at National Review by Shannen W. Coffin December 12 2011

The Wall Street Journal has a powerful illustration today (subscription required) of the problem of overcriminalization of federal law and the related problem of strict liability crimes. It tells the story of Lawrence Lewis, a maintenance engineer at a military retirement home in D.C., who pled guilty to misdemeanor violations of the Clean Water Act and its implementing regulations — all for discharging a backed-up sewer line into a city storm drain to prevent flooding in an area on the property where, according to the story, the sickest residents lived. Lewis mistakenly thought the storm drain emptied into the D.C. sewer system, when in fact it emptied into Rock Creek, a tributary of the Potomac River. 

Since the government is not required to prove guilty intent (mens rea) as part of its case for this regulatory violation, Lewis’s good faith was no defense to his “crime.” (The government’s own pleadings in his case admitted that Lewis did not knowingly dump waste into the creek). So, like many faced with the weight of a federal prosecution, he decided that taking a plea was the better course.

After a fine and probation, Lewis now has a criminal record for the first time in his 60 years (an assault arrest in his youth did not result in a conviction). He summed it up best in describing his incredulousness at being booked from such an insignificant and unintended federal crime:  “Imagine what I looked like. ‘What you in for? Backed up toilets.’”