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Guilty or Not

​AS THE FEDERAL criminal code has expanded exponentially in the last century with thousands of new statutes that carry criminal penalties, there has also been an erosion of mens rea requirements built into the laws. Mens rea means guilty mind, and mens rea requirements mean that the person knew in some way that he or she was doing something wrong and breaking the law. The U.S. House of Representatives Judiciary Committee’s overcriminalization task force has been paying close attention to this issue and recently held a hearing on the topic.

As pointed out in the hearing, it’s important to understand the difference in the types of crimes being prosecuted. With crimes that are tried at the state level, such as robbery or murder, often being “malum in se” offenses (evil in itself), it’s more of a question of finding the person who committed the crime than figuring out whether a crime has been committed, and whether those who did it knew they were breaking the law, said John S. Baker, visiting professor, Georgetown University.

Federal laws are not always so clear cut. Many of them are like the tax code, open to interpretation, Baker said.

And laws get further complicated by reams of regulations that set out compliance rules, such as what exactly a label on a package must say in certain situations. The massive amounts of regulation mean that it’s impossible for someone to know everything that has been criminalized. And many of the crimes are “malum prohibitum,” which means that they are illegal only because they are prohibited. That makes it all the more important that a person knows they were doing wrong when committing a crime before they can be convicted or held liable, say advocates of change.

Mens rea reform has broad bipartisan support, which may increase its chances. Christopher Durocher, government affairs counsel for the criminal justice program at nonprofit The Constitution Project, tells Security Management that this bipartisan agreement may be accounted for not just by the general unfairness of the issue but also the broad spectrum of people who have been hurt by the lack of mens rea requirements.

Making so many things criminal violations without regard to mens rea also puts more people at risk of a court action that can cripple them financially and reputationally, noted Norman Reimer, executive director of the National Association of Criminal Defense Lawyers (NACDL) at the hearing. A normal person can’t bear those costs, he said, and Baker concurred, noting that former Enron CEO Jeffrey Skilling ran up legal fees of about $42 million while Oliver North spent $40 million defending himself. “The numbers are mind-boggling,” Baker says.

Baker and Reimer agree that one way to deal with the lack of mens rea in federal statutes would be to enact a default mens rea requirement. This requirement could be retroactively applied to any statute that lacks a requirement altogether or that lacks a requirement for every element of the crime. The requirement would also apply to future laws. Although the default mens rea has support, there is some debate over what the terminology for the mens rea requirement should be.

Reimer testified that the requirement should refer to “willful conduct,” which Reimer said “means, as it has been defined by the courts, a person must act with the knowledge that the thing is unlawful.” Reimer says this is better than using “knowingly,” which is another term that some have suggested for the default mens rea requirement.

Durocher agrees that a “willful” requirement would be best, because it would be “something that really requires that they know that what they’re doing is breaking the law.”

By contrast, acting knowingly means “you knew that you were committing the act,” he says, but not necessarily that the act was illegal. That “is a higher bar than negligence or recklessness, but it’s still a relatively low bar.”

Durocher points out that if members of Congress then deem “willfully” as too high a bar for any legislation being drafted, they can include their own mens rea requirement that sets the bar lower. But he adds that having this default requirement of a higher standard would force lawmakers to really examine the laws that they are drafting and ensure that they tackle the mens rea issue.

In addition to the default mens rea requirement, Reimer recommended that anytime Congress is considering legislation that has provisions that would impose new criminal penalties, it should have “sequential referral” to the judiciary committees—meaning that the judiciary committee would have to take it up and could mark it up before it could proceed for a full House or Senate vote. “They should be looking at these and making sure that they’re well-drafted and that they accomplish what they set out to accomplish,” Reimer tells Security Management.

Durocher agrees that this would help. Sequential referral would not only allow further review of the provision, but it would also require those drafting the law to pay closer attention to whether the criminal provisions are needed, knowing that it’s going to receive a closer scrutiny. “Requiring that calculation, I think, could result in a lot of bills where they say…. ‘I think that a civil liability in this case would be sufficient to encourage the conduct that we want to encourage and discourage the bad conduct,’ rather than just a knee jerk ‘oh, we’ll just throw a criminal penalty in there just because we can.’”

The alternative of having a mens rea requirement is called strict liability. NACDL does not support strict liability in criminal law, says Reimer. He adds that the whole point of criminal law is to get people to conform their behavior, and they cannot do that if they don’t know the law. Durocher advises that strict liability should only be for relatively minor crimes and not for lengthy jail terms. And the lawmakers should “specifically explain why they think strict liability is necessary” when they use it.

The overcriminalization task force was scheduled to conclude its hearings over the summer, and Durocher and Reimer expressed optimism about the prospects for a legislative solution coming up for a vote and possibly passing at some point in the next few terms of Congress.