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One more time down the mens rea rabbithole

The least of Howard Clay's difficulties was the weapons under disability count he was facing; the two felonious assault charges, both with gun specs, were the bigger problem.  Then again, the disability charge was more defensible:  Clay had been indicted under the provision of the statute which creates a disability for someone "under indictment" for possession or trafficking in drugs.  The thing was, at the time he was arrested on the felonious assault charge, he had no knowledge that he was under indictment for a drug offense.

Clay took his conviction on that count up to the 8th District, but they showed him no love, pointing out that they'd decided back in 1993 that this was a "strict liability" offense, i.e., the state didn't need to prove that the defendant knew of the pending indictment.  True, the "reasoning" of the 1993 case consisted entirely of the following statement:

[The statute] only requires that defendant be under indictment, not that defendant have knowledge of the indictment.

Acknowledging that the 6th District had concluded that the defendant did have to know about the indictment, the 8th felt "constrained to follow our own precedent. Resolution of this conflict is not ours."

And last week in State v. Clay, the people who get to resolve that conflict did, reversing Clay's conviction.  But the Supreme Court didn't come down on the side of the 6th, either.  The court instead decided that the general assembly hadn't intended to impose strict liability, so the appropriate mens rea element was recklessness.

As Justice Lanzinger conceded in her concurrence, the line between "knowingly" and "recklessly" is blurred.  Whether it has any meaning in this context is questionable; the best Lanzinger could do in distinguishing between the two is to conclude that Clay could be convicted if "he acted with heedless indifference, perversely disregarding a known risk that he may have had an indictment pending."

Whether all that was necessary is open to question.  After all, the statute says, "no person shall knowingly" possess firearm if "the person is under indictment" for a drug offense.  Why wouldn't the "knowingly" apply not only to the possession, but to whether the person is under indictment?

The court decides that the legislature intended the "knowing" element to apply only to the possession, relying on other cases which held that "knowledge" in one portion of the statute didn't carry over to the other.  This isn't a terribly convincing argument, either; it relies solely on State v. Maxwell, where the court considered a child pornography statute which prohibited anyone "with knowledge of the character of the material" to bring the material into the state, and concluded that the knowledge only applied to the character of the material.  That's a pretty reasonable result, because that's exactly what the statute says:  the knowledge is clearly limited to the character of the material.  If the weapons disability statute read, "no person, knowing he has a gun, shall be under indictment...," the same argument might apply.  Besides, in Maxwell the court had concluded that since the "knowing" intent only applied to one part of the statute, the legislature had intended for the rest to be strict liability.  Does it make much sense to believe that the legislature had intended for the defendant to have a different, and lesser, intent regarding one part of the statute over the other? 

There have been a number of occasions over the past few years -- with sentencing, allied offenses, overruling precedent, and void/voidable convictions, to name a few -- where the court has progressively boxed itself in with its decisions.  I have a feeling that in a few years we might feel the same way about the strict liability/intent analysis.  If you're going to require that an intent be specified for each subdivision of a statute, you're going to have a mess on your hands in relatively short order.

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