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Over-criminalization and mens rea reform: A primer

John Villasenor

Last month, two bills were introduced in the House and Senate that address mens rea reform. “Mens rea” is a Latin phrase sometimes translated as “guilty mind,” and refers to the issue of intent in crime. It is a concept that has shaped American criminal jurisprudence from its earliest days, and that remains central today.

As I explained in a recent article at Vice:

Historically, a crime has been understood to require the combination of both the act itself, called the actus reus, and awareness that the act was wrong, or mens rea. In a 1798 case in England, jurist Lord Kenyon wrote that “it is a principle of natural justice, and of our law, that actus non facit reum nisi mens sit rea. The intent and the Act must both concur to constitute the crime.” The importance of intent was also widely understood in early American criminal law, which drew heavily on English common law. However, starting in about the middle of the nineteenth century, an increasing number of American criminal statutes were drafted and enforced without regard to intent.

In a now-classic 1933 Columbia Law Review article, Harvard Professor Frances Bowes Sayre wrote that “we are witnessing today a steadily growing stream of offenses punishable without any criminal intent whatsoever. Convictions may be had for the sales of adulterated or impure food, . . . infractions of anti-narcotic acts, and many other offenses based upon conduct alone without regard to the mind or intent of the actor.” . . .

The bifurcation that Sayre observed over 80 years ago between crimes where intent was evaluated and those where it was not is still present today: Minor offenses (and some major ones, including statutory rape and some drug-related crimes) are often treated under a “strict liability” framework in which guilt or innocence is determined based only on the act itself. If you park illegally and get a citation, contesting it by arguing that you didn’t see the “No Parking” sign will get you nowhere. For more serious offenses, intent is often at the center of the inquiry. If you elbow someone in the face, understanding your state of mind is the key to distinguishing an unfortunate accident from battery. One change from the early twentieth century, however, is that today there are many more federal crimes on the books that are silent on intent, and that can potentially be prosecuted without regard to the defendant’s state of mind.

When criminal statutes are silent on intent, different courts tend to apply them in inconsistent ways. Consider 18 USC § 875(c), which states:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

In evaluating whether a statement is a threat, should this statute be applied using a subjective standard focusing on the state of mind of the speaker—i.e., examining whether the speaker made the statement with intent to threaten? Or should an objective standard be used, which instead focuses on whether a reasonable person would perceive the statement to be a threat?

If you find that question hard to answer, you’re not alone. U.S. federal courts found it hard to answer as well. Even in the years after the Supreme Court’s 2003 Virginia v. Black decision, in which the Court provided what remains its most expansive discussion to date of what constitutes a “true threat” unprotected by the First Amendment, lower courts diverged on their interpretation of the standard to use for conviction under statutes criminalizing threats. For example, the Ninth and Tenth Circuits applied a subjective standard, while the Third, Fourth, Sixth, and several other circuits used an objective standard.

The issue was partially resolved in June 2015 when the Supreme Court ruled in Elonis v. United States that a subjective standard was required for conviction under 18 USC § 875(c), writing that what the defendant thinks “does matter.” But which subjective standard should be applied? Other than specifying that negligence was too low a standard, the Court didn’t say which level of intent must be shown for conviction. That led Justice Alito to write in a separate opinion that the “Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U.S.C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer.”

This is exactly the sort of confusion that mens rea reform aims to resolve. In November, Rep. F. James Sensenbrenner, Jr. (R-WI) introduced the “Criminal Code Improvement Act of 2015,” a bill that if enacted would provide, among other provisions, that:

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.

The Senate bill, titled the “Mens Rea Reform Act of 2015,” was sponsored by Rep. Orrin Hatch (R-UT) and would require (with some exceptions), “with respect to any element [of a criminal statute] for which the text of the covered offense does not specify a state of mind,” that the “government prove beyond a reasonable doubt that the defendant acted” “willfully.”

Just like almost everything in Congress, these bills have generated controversy. Opponents, including the Obama administration, assert that among other problems, the bills would weaken the government’s ability to prosecute white-collar crimes. A Justice Department spokesperson told the Huffington Post that the House bill “would create confusion and needless litigation, and significantly weaken, often unintentionally, countless federal statutes.” A White House official, also quoted in the Huffington Post, said the House bill “would undermine public health and safety, including laws that protect our environment and ensure food and drug safety.” The New York Times ran an editorial titled “Don’t Change the Legal Rule on Intent.” And GWU law professor Orin Kerr, writing in the Washington Post’s Volokh Conspiracy blog, called the House bill a “confusing proposal.”

But the current system of federal criminal statutes isn’t exactly a model of clarity. It’s not even clear how many federal criminal statutes are currently on the books. A study by legal scholar John S. Baker, Jr. for the Heritage Foundation in 2008 found nearly 4,500 federal crimes as of the end of 2007. The Congressional Research Service tallied more than 400 additional criminal statutes enacted in the years from 2008 to 2013.

Today, the total number is approaching or may have exceeded 5,000, but an exact count is elusive. And it’s anyone’s guess how many of these statutes are silent on intent, though the number is certainly large. (The House bill has a provision that would help address these uncertainties by creating an “Inventory and index of Federal criminal offenses.”) In addition, as a February 2014 press release announcing a reauthorization of the House Judiciary Committee’s bipartisan Over-Criminalization Task Force (the Task Force was originally created in mid-2013) explained, there are an estimated 300,000+ federal regulations, “many of which, if violated, can also result in criminal liability.”

Opponents of mens rea reform sometimes paint it as a strictly partisan issue. The New York Times editorial stated that “Koch Industries, the conglomerate owned by David and Charles Koch” is “leading the charge to change the standard.” But, that statement, even if true, oversimplifies by omission. The House bill is co-sponsored not only by several Republicans, but also by Rep. John Conyers, Jr. (D-MI), who has been a member of the House Democratic Caucus since the 1960s, and by Rep. Sheila Lee Jackson (D-TX), who has been in Congress for two decades.

The fact that the bills were introduced at all, regardless of their eventual disposition, should help generate some much-needed discussion regarding over-criminalization generally and the specific issue of whether mens rea reform is an appropriate legislative tool to address it. The United States, with less than 4.5 percent of the world’s population, now has over 20 percent of the world’s prison population. That’s not a statistic to be proud of, and it’s one that deserves more attention from people across the political spectrum.

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