Law Quarterly

Mens Rea Reform and the Modern Regulatory State

By Max Hyams


During the spring of 2016, prior to the election of Donald Trump, Congress, without much fanfare, drafted and considered legislation for comprehensive criminal justice reform. This reform was primarily aimed at reducing mandatory minimum sentencing. However, many congressional Republicans, such as Congressmen Orrin Hatch and Jim Sensenbrenner, supported adding mens rea reform to the comprehensive criminal justice legislation. The subsequent dispute over the mens rea addendum fell mostly along partisan lines and ultimately derailed the entire legislative effort.

In recent decades, however, federal and state legislatures have increasingly promulgated criminal regulatory statutes with no mens rea requirement. These statutes are often referred to as “Strict Liability” criminal laws, wherein in the absence of any proof of intent, a defendant can still be held guilty solely on a showing that an act was committed. This trend has occurred concurrently with the untrammeled growth of the American regulatory state, and the attendant emergence of an alphabet soup of bureaucratic agencies tasked with enforcing the maze of rules. The exercise of counting the number of federal regulations on the books, let alone counting those that include mens rea protection, is a difficult pursuit in itself. However, according to the Heritage Foundation’s 2008 survey, “Revisiting the Explosive Growth of Federal Crimes”, there are 4,450 crimes on the federal register, and between 2000 and 2007 only 17 out of 91 new criminal statutes specified the need for a mental element in proving wrongdoing.

Supporters of reforming the mental state element of federal criminal statutes argue that in today’s regulatory environment mens rea is more important than ever. There are far too many rules for one person to know, which creates a climate of uncertainty. Many argue that this sense of uncertainty erodes the civil liberties of all citizens and impedes commercial activity and economic growth. Would-be mental state reformers remind us that many of the criminal statutes lacking intent requirements concern acts that are malum prohibitum, in other words, acts that are wrong only because they are prohibited by government dictum; offenses such as performing dentistry without the requisite license or illegally hunting on federal lands. These are acts for which one might not intuitively know constitute crimes, whereas malum in se crimes are acts that are universally regarded as wrong in themselves (murder, rape, theft etc.).

Opponents of mens rea reform primarily hailed from the Democratic Party, the Department of Justice and more broadly, the American left. The principal case put forth in opposition to reform was that the mens rea requirement would pose a prohibitively high burden for prosecutors to meet and thus many white-collar criminals would be able escape the arms of the justice system unscathed, allowing corporate malfeasance to run rampant. Many left of center outlets even went as far as to speculate that the entire effort was used by Republicans as a trojan horse to deceptively pass legislation resembling agreeable bipartisan criminal justice reform, but which was truly aimed at helping the upper class. This line of attack was primarily directed at the much-derided Koch Brothers, who were financially backing both legislative projects. Disconcertingly, even the American Civil Liberties Union (ACLU) failed to wholeheartedly support reform. The executive director of the ACLU, Anthony Romero, wrote in the New York Times that mens rea reform would have a very limited reach and that the project was likely to derail the larger criminal justice reform pursuit. In his letter to the editor, “Criminal Justice Reforms”, Romero regurgitated the trojan horse theory, insisting that the Republican mens rea project only benefited “white-collar and corporate polluter interests”. The aforementioned groups gravely erred in their rejection of reform and employed faulty and cynical reasoning to bolster their position.

It is conceivable that if federal prosecutors were encountered with a higher burden of proof then a larger number of truly guilty white-collar criminals would be able to skirt the grasp of our justice system unscathed. By the same token, defendants accused of unknowingly breaking any number of arcane and ill-conceived federal statutes would be afforded an invaluable civil liberties protection. One long-standing principle undergirding the dynamics of the Anglo-American legal system is what is called the “Blackstone’s Formulation”, devised by 18th century English Jurist Sir William Blackstone. The formulation states that it is “better that ten guilty persons escape than that one innocent suffer”. This principle reflects American skepticism of government and its tendency to abuse power and trample the liberties of citizens. This sentiment is perhaps even more pivotal today given the plethora of rules and regulations that prosecutors have at their disposal.

The fact that mens rea reform would benefit white-collar corporate defendants is a cynical reason to oppose reform and reflective of the demagogic tendencies of the opponents of reform. The ACLU bravely defends the civil liberties of all sorts of loathsome individuals and groups, such as the Ku Klux Klan and sex offenders. The only possible reason the ACLU could believe that wealthy white collar defendants are uniquely undeserving of legal support is if the organization has some ideological tick preventing them from earnestly coming to the legal aid of mens rea reformers. Contrary to the supposition of ACLU director Romero, given the vast morass of federal regulations, the reach of mens rea reform would extend far beyond just the lives and activities of the wealthy and corporate actors (not that this should even be of import since the benefits of civil liberties ought to be extended to all citizens, whether or not they are worthy of sympathy).
Additionally, there are various degrees of mens rea requirements; opponents of reform who believed that the proposed new burden of proof would be too lenient for defendants could have considered various degrees of intent that put forth a less formidable obstacle for prosecutors to meet. In his Politico article, “How to solve the biggest issue holding up criminal justice reform”, University of South California professor Alex Sarch presented the example of a mail carrier accused of violating a federal statute prohibiting the transmission of ransom notes via interstate commerce, and explained that “some courts might assume that the mail carrier would have to be practically certain that she was a carrying a ransom note in order to be guilty” whereas other courts would only require that the mail carrier be “aware only of a risk that she was carrying a ransom note (ie.,was reckless) or perhaps simply should have known of such a risk [based on her experience as a mail carrier] (i.e., was negligent)”. The opponents of reform ought to have engaged in discussion over which of these burdens of proof are appropriate in which situations, instead of rejecting reform outright.

Comprehensive criminal justice reform is a much-needed corrective to combat the American carceral state and the egregious over-criminalization phenomena. The revitalization of mens rea is a crucial component of this broader project, not a distraction from it.

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