After years of working for a tech company, you decide to start your own business designing websites. One of your first clients is a charity that focuses on teaching traditional religious customs and practices. While building the website, you link to other organizations that share some, but not all, of your charity’s views.
You’ve just committed an arguable federal felony: Because information on the websites to which you link contained advocacy of religious extremism, you have broken the federal Patriot Act provision of Providing Material Support to Terrorists.
Now imagine you decide to have a picnic in a national park with your family. After finishing your meal you throw away your trash. Your son, however, isn’t so careful – he leaves behind a few leftover items. As you leave your picnic area, a park ranger asks if you or your family has left trash in the area. You tell him that you’ve cleaned up after yourself.
You’ve just committed an arguable federal felony: False Statements to a Federal Official. Any false statement made to a government official – even when it is made in conversation and not under oath nor in writing – can leave a citizen vulnerable to a “false statement” charge.
Those may seem like absurd examples but as civil rights lawyer Harvey A. Silvergate notes, these hypothetical examples have real-life parallels. Overcriminalization and an increase in vague regulations have made most of us unknowing and unintentional felons.
This wasn’t always the case. Under the common law, criminal intent—an intention to commit a crime or violate a law—was a necessary element of every crime. Most statutory laws also require criminal intent. However, as William J. Sloan explains,
[B]ecause of the complicated nature of modem society, the legislatures of the states have found it necessary, in order to protect the public safety and welfare, to pass laws which make the mere performance of certain prohibited acts, or the failure to perform other commanded acts, unlawful, regardless of the actor’s intention. These laws, variously defined as “police offenses” and as “public welfare offenses,” are justified as a proper exercise of the police power.
[…]
Because of the nature of these offenses, it would be almost impossible to secure conviction if the state were required to prove the criminal intent of persons who violated the law.” And yet, in order to protect the public health and safety, it is necessary that violations of these regulations be kept at a minimum.
That was the standard when Sloan wrote his law review article . . . in 1942. Since the New Deal era, though, Congress has increasing given authority to regulatory agencies to craft regulations and determine how they will be enforced. The result is that many of us are now committing federal felonies—sometimes several a day—without every realizing we are violating the law.
Fortunately, some lawmakers in Congress are willing to fix the problem. Yesterday Sen. Orrin Hatch (R-Utah) delivered a speech on the Senate floor arguing that any criminal justice reform must include reform of mens rea (criminal intent) standards.
Hatch noted that there are nearly 5,000 federal criminal statutes and an estimated 300,000 criminal regulatory offenses. Many of these laws and regulations, Hatch added, “contain inadequate mens rea requirements, or even no mens rea requirements at all.”
Without adequate mens rea protections — that is, without the requirement that a person know his conduct was wrong or unlawful — everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong. This is not only unfair; it is immoral. No government that purports to safeguard the liberty and the rights of its people should have power to lock individuals up for conduct they didn’t know was wrong. Only when a person has acted with a guilty mind is it just, is it ethical, to brand that person a criminal and deprive him of liberty.
Since the Roman era a key legal principle has been ignorantia juris non excusat—“ ignorance of the law excuses not.” Presumed knowledge of the law is the principle in jurisprudence that one is bound by a law even if one does not know of it. But this principle is undermined when we have so many criminal statutes and regulatory offenses that no one could possibly be aware of them all, much less know when they are committing a crime.
Reestablishing the rule of law will require rolling back regulatory state overreach and eradicating burdensome regulations. That’s not a goal that will be reached soon—maybe not even in our lifetimes. But in the meantime, criminal intent reform is an important and necessary step forward in protecting the rights of citizens against unjust prosecution. The rule of law can’t survive when there are 300 million unwitting felons in America.
