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Mens Rea and Overcriminalization

Conservative Solutions


“There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.” –Pat Nolan, Director of Nolan Center for Justice

Did you know that it’s a federal crime to write a check for less than a dollar? So is walking your dog in a national park if your leash is longer than six feet, as is digging for arrowheads on federal land. As harmless as each of these examples appears, any one of them could land you in federal prison.

In 1787, there were only three federal crimes: treason, piracy, and counterfeiting. By 1870, Congress had added thirteen more. Today, there are in excess of 4,000 statutory provisions and an estimated 400,000 regulations, the violation of any one which could land someone in federal prison. In fact, with the explosion of the regulatory state, one analyst found that the average person unwittingly commits three felonies a day.

Traditionally, federal prosecutors were required to prove “mens rea,” a Latin term for “a guilty mind,” to convict. That is, they had to establish beyond a reasonable doubt that a defendant exhibited a guilty state of mind at the time of a crime. The mens rea requirement helped differentiate between those who intentionally set out to break the law and those who didn’t.

Over time, many laws and regulations eliminated the mens rea requirement. The result? Thousands of Americans have been convicted and incarcerated for activities no reasonable person would know to be illegal. Not only does this fill our prisons with people who don’t belong behind bars, it costs American taxpayers untold millions of dollars.

Some of the examples of the “crimes” that do not require mens rea are astounding. For instance, a man who accidentally removed the wrong coat off a coat rack, a little girl who saved a woodpecker from being eaten by a cat, and a famous NASCAR driver who wandered into a protected wilderness area during a blizzard all unknowingly broke the law and faced prosecutors who threatened criminal charges.

There are stories of landowners who have been prosecuted for “despoiling wetlands,” after filling in a puddle or two on their properties far from any stream, river, or lake. In 2000, a group of lobstermen was charged with packing lobsters in plastic bags rather than cardboard. This was completely legal under U.S. regulations, but the feds prosecuted the men-and won eight-year prison sentences-for allegedly violating the regulations of Honduras, even after Honduran authorities told them that their regulation was no longer enforced. There are many other examples to be found just like these of innocent conduct deemed criminal.

Aside from the blatant unfairness of prosecuting someone for violating an absurd law they had no knowledge of and no guilty intent, these cases eat up an inordinate amount of resources. Why should anti-terrorism and violent crime task forces be starved for funding while the Justice Department uses the criminal justice process to go after a janitor charged with allowing sewage to enter a storm drain? Most prosecutors will say they need to “send a message” or “make an example,” no matter what the financial burden is for the American taxpayer.

This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal. This is not only ridiculous, it’s immoral, and creates tensions within government entities. Individuals’ fate is often hinged on not the offense but the authority who prosecutes them.

Conservative Solutions

• Legislators must resist the temptation to criminalize activities that do not fit a common-sense understanding of what is a “crime.”
• Establish a standard of knowledge required for criminal conviction
• Sentence individuals convicted of non-violent crimes that do not require mens rea to alternative forms of punishment other than prison

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