Excerpt [John Malcolm, Federalist Society Review]:
Proof of mens rea — a guilty mind — has traditionally been required to punish someone for a crime because intentional wrongdoing is more morally culpable than accidental wrongdoing; our justice system has usually been content to evaluate accidents that injure others as civil wrongs, but criminal punishment has been reserved for people who do bad acts on purpose. But that has changed as legislators and regulators have begun to see the criminal justice system, not as a forum for ascertaining moral blameworthiness and meting out punishment accordingly, but as just another tool in the technocratic toolbox for shaping society and preventing social harm. Mens rea reform, if Congress implements it, would constitute an important step toward restoring justice by preventing criminal punishment for actions like Bobby Unser’s leaving his snowmobile on federal land during a snowstorm. Ensuring that there are adequate mens rea standards in our criminal laws is one of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address every societal problem. While some critics argue that mens rea reform would only benefit wealthy corporations and their executives who flout environmental and other health and safety regulations, the truth is that such corporations and their high-ranking executives are able to hire lawyers to navigate complex regulations and avoid prosecution, while individuals and small businesses lack the time, money, and expertise to avoid accidentally violating obscure rules. Mens rea reform is necessary to ensure that our criminal justice system punishes in accordance with commonly held beliefs about right and wrong, which is important if it is to maintain its legitimacy in the eyes of all Americans.
6 Comments
Some examples of the need for this:
A person picks up some feathers and is guilty of violating the migratory bird treaty, since one may not possess feathers (even if found on the ground) or the endangered species act if they are eagle feathers
A person makes a pet out of a squirrel–illegal but no one knows that (state level law)
A small business grants the request by an employee to work through lunch and leave early–labor law violation.
Paperwork violations for tax law
Let us not forget prosecutorial discretion (including by regulators, in this case), without which all laws would be evenly enforced, including against the lawmakers. Even-handed enforcement would be the quickest way to spur reform.
However, if the laws were enforced against the lawmakers, would they not overturn the laws, which would reduce the power of the prosecutors by lessening their opportunities for prosecutorial discretion? It is only by using their discretion to not prosecution lawmakers that they maintain this power, which is, of course, the basis of all justice.
It will only be when everything is illegal — but prosecutors will not enforce those laws against the powerful — that perfect justice shall be achieved. Just ask Harvey Weinstein.
Bob
“However, if the laws were enforced against the lawmakers, would they not overturn the laws,”
No, they could just write themselves and exemption to the law rather than overturning it for everyone.
“Let us not forget prosecutorial discretion (including by regulators, in this case), without which all laws would be evenly enforced, including against the lawmakers.”
This is simply not true.
1. There are more than a few laws from which Congress has explicitly exempted itself or the federal government as a whole.
2. Even without discretion, there are too many laws for all to be enforced in all cases. The government simply doesn’t have sufficient resources, and never will without significant pruning of the criminal code.
The other problem–this is the power of the state we are talking about. People do have the moral right to resist.