As Congress has begun to consider various reforms to the federal criminal justice system in the last several months—sentencing and re-entry policies in particular—another element of federal law that merits consideration is beginning to receive its due, as well: namely, ensuring that statutes or regulations have adequate mens rea, or criminal intent, requirements.
In yesterday’s edition of the Cato Daily Podcast, Caleb Brown interviewed Robert Alt, President of the Buckeye Institute in Ohio, about the current landscape of state and federal criminal law, where Alt succinctly describes the growing problem:
“We’ve noticed over the years, both at the Congressional level and the state level, that more and more crimes are being passed that either have no criminal intent requirement at all—where you can be convicted for mere accidents—or they have inadequate mens rea requirements.”
A long-standing tradition among common law jurisdictions has held that criminal actions generally have two elements: the bad action itself (actus reus), and a guilty state of mind (mens rea). In recent decades, legislatures haven’t had much difficulty passing statutes detailing new crimes or enabling regulatory agencies to concoct administrative rules that also bear criminal penalties. As Alt explains, an American Bar Association task force found in 1998 that the body of federal criminal law was so cumbersome that a single, conveniently accessible repository listing them all didn’t exist. Shortly thereafter, they commissioned a study to generate an inventory, in which case over 3,000 federal criminal statutes were detailed.
In 2007, a similar inventory performed by the Heritage Foundation and others found that the number had jumped to roughly 4,500—equating to a new statutory crime passed by Congress once a week over that nine year period. This is to say nothing of federal regulatory offenses; estimates have pegged the Federal Register at approximately 300,000 regulations, though no one knows the exact number as those responsible for finding them eventually stop counting.
What hasn’t occurred with regularity as these new laws or rules are being promulgated is inclusion of the second element of crime: establishing culpable intent on the part of the actor. This has the effect of creating new criminals out of people who had no intention or knowledge of running afoul of the law, and can have adverse, long-term consequences.
Such was the case of Bobby Unser. As Alt recounts, Unser and a friend were snowmobiling in late 1996 on a popular trail when they became caught up in a blizzard. After both experienced whiteout conditions and mechanical issues, they abandoned their vehicles and began hiking out. Fortunately, they made their way out of the storm—after two days and nights—and were able to call for help:
After recuperating, Unser enlisted the assistance of National Park Service representatives in the recovery of his snowmobiles, who proceeded to inform him that he had actually wandered into a protected wilderness area, where the federal Wilderness Act prohibits the possession or use of motorized equipment, except as authorized by law. Despite the emergency nature of his situation, Unser was nonetheless charged with a violation, which carries potential fines of $5,000 and/or six months in prison.
A federal judge went on to find Unser “guilty,” and charged him $75. On top of this, Unser now has a criminal record—for getting caught in a snowstorm and unwittingly straying into a protected area.
To ameliorate this type of situation and others like it, Ohio recently passed a default mens rea reform into law, which Alt describes as the strongest of its kind in the country. It accomplishes two things: first, should the legislature pass a new criminal law that doesn’t contain criminal intent provisions, the criminal provision is stricken and considered void. This sends a strong signal to future legislatures to appropriately craft criminal statutes. Second, for criminal laws already on the books, the new law applies a default standard to every element of a criminal statute that lacks one. As Alt states, this law could serve as a model for other states and Congress as they address their own laws.
James Madison was onto something in Federalist 62 when he said 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.” It isn’t a stretch to believe that we may have reached that point.
Brown’s interview with Robert Alt of the Buckeye Institute can be found below: