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Mens rea reform

If you're a teacher and you have sex with somebody who turns out to be a student in your school, are you guilty of sexual battery?  If you're charged with having a weapon under disability because you're under indictment for a drug offense, does the State have to show that you knew you were under indictment?  If you sell a gun to a minor, is it a defense that you didn't know the buyer was a minor?

Yes, yes, and yes; all of those are strict liability crimes as to that particular element.

It's arguably worse in the Federal system.  We're not even sure how many Federal crimes there are:  the Heritage Foundation counted almost 4,500 in 2007, the Congressional Research Service found another 400 added between 2008 and 2013, and that's not even counting the over 300,000 Federal regulations, many of which provide some penalty for noncompliance.  Many of them are strict liability offenses, too.

That's a recent development:  up until the 1930's, virtually all criminal statutes required some form of mens rea.  The growth of the regulatory state probably had something to do about that, but making criminal convictions easier to obtain has certainly been a motive, too.

Last year, the Ohio legislature tried to stem the tide of strict liability offenses by enacting RC 2901.20, which requires all new criminal statutes to "specify the degree of mental culpability required for commission of the offense."  Congress has also entered the fray:  along with sentencing reform, the big issue now is mens rea reform, which comes in the form of a House bill:

If no state of mind is required by law for a Federal criminal offense--

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

 (Interestingly, nobody knows how many Federal statutes don't include an intent element; the House bill calls for the creation of an "inventory and index of Federal criminal offenses" so we can figure that out.)

Of course, the devil's in the details.  Professor Orin Kerr pointed to some of the problems with the second part of the bill:

How much is enough to have a "reason to believe" that conduct is unlawful? A person might know that there are vague laws out there, and that there is uncertainty about what they cover. Is that enough to provide a "reason to believe"? Does that mean "a little bit of a reason," or "a really good reason," or something else? Imagine the defendant asked a lawyer who said that the conduct was probably legal. Does that mean that the defendant can't invoke the defense (because he had enough reason to believe that he asked for legal advice) or that he can (because the lawyer said he was probably okay)? Also, what does "unlawful" mean in this context? Does "unlawful" mean a tort? A regulatory violation?  Only a crime?

There's a suspicion that the statute is aimed mainly at the regulatory state; the Obama administration opposes it because it would "significantly weaken" Federal statutes and regulations, and "would undermine public health and safety, including laws that protect our environment and ensure food and drug safety."  The New York Times contends that the Koch brothers, David and Charles, the bête noirs of the left, are leading the charge to change the standard, a claim somewhat undermined by the fact that it's also supported by Democrats John Conyers and Sheila Lee Jackson.

It may well be that nothing will come of this.  The mens rea reform has been folded into sentencing reform, which up to now has been a bipartisan issue, prompted by the fact that America, with a little over 4% of the world's population, has more than 20% of the world's prison population.

Up to now, because that's starting to unravel, too.  Freshman Sen. Tom Cotton (R-Ark.), fresh from sending letters to Iran telling them that the U.S. might not honor the non-proliferation treaty it just signed, is rounding up conservatives to oppose the sentencing reforms, arguing that it "would lead to the release of thousands of violent felons."  Nobody ever suffered an electoral defeat because they were hard on crime, and the GOP's long history of being the "law and order" party suggests that Cotton's efforts might bear fruit.  And despite the support of Conyers and Lee, the Obama administration might be able to garner enough Democrats to torpedo mens rea reform as well.  Besides, in this day and age, betting that Congress will do nothing is certainly where the smart money is.

Which may or may not be a good thing.  Sure, we don't want health and safety regulations undermined, but still... In 1996, Bobby Unser and a friend were snowmobiling in New Mexico when they were caught in a blizzard, and in an effort to avoid the storm inadvertently wandered into a protected wilderness area, where snowmobiles are forbidden.  For that, he was prosecuted, and wound up paying a $75 fine.

And whatever happens to the Federal reforms, the Ohio statute is in the books, and that means no more strict liability crimes here, at least in the future.  (It leaves current laws unaffected.)

In Federalist 62, James Madison wrote that "it will be of little avail to the people...if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."  He had a point, and we may reached it.


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