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Mission Creep in Congress

In an interesting article on the federal law code, the Wall Street Journal discusses the weakening of criminal intent standards:

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.”

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. […]

Requiring the government to prove a willful violation is “a big protection for all of us,” says Andrew Weissmann, a New York attorney who for a time ran the Justice Department’s criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means “you have the specific intent to violate the law.”

A lower threshold, attorneys say, involves proving that someone “knowingly” violated the law. It can be easier to fall afoul of the law under these terms.

In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn’t exist—but later it was applied to him. He hadn’t been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years’ probation.

His lawyer, Jane McClellan, says prosecutors “did not have to prove he knew about the law. They only had to prove that he knew he had guns.”

The American Congress has unfortunately fallen victim to mission creep: it is writing more and more criminal laws and making it easier and easier to convict people of breaking them.  A proliferation of laws does not promote respect for the law; on the contrary, it cheapens the law.

Over time the proliferation of laws, often narrow in scope and written because some particular member of Congress — or some particular interest group — gets a bee in its bonnet.  Over time, these minor changes pile on top of each other, creating a web of complex regulations, impenetrable to all but the most highly-trained specialists. Yet these regulations cover nearly all manner of everyday activity, making it easy for the layman to fall afoul of them.

To make matters worse, these laws are often written without criminal intent restrictions, either due to oversight or to the intent of the drafters. Courts no longer need to prove that the law was broken knowingly, only that a law was broken. As a result, even as the law code becomes more complicated and expansive, so do the penalties for ignorance of its minor details. The purpose of federal law cannot be to regulate the minutiae of everyday life.

We have allowed the federal law code to become overgrown.  While new technology and changing circumstances may occasionally lead to new problems which require a legal remedy, all things being equal a country that is more than 220 years old should not normally be adding many new criminal offenses to the statute book.  It’s time to take the pruning shears to the legal thicket: there are too many laws and they are too easy to break.

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  • Tom Holsinger

    I disagree. There are too many such laws, and there will be more. I agree with Glenn Reynolds that the only effective solution is a Constitutional requirement, via amendment, that all laws punishable by penal servitude require specific intent. We won’t see that for a long time, and then probably only from a convention to propose Constitutional amendments called by the States. Which means a very long time unless there are real exciting events in the near future.

  • Thrasymachus

    “Knowingly” is actually a pretty high *mens rea.*Meeting it requires the perpetrator to “knowingly” commit the specific act forbidden by the law in question (the “actus reus”). In practice, this amounts to pretty much the same thing as “intentionally”.

    The standards below that, by contrast, really do impose increasingly large circles of liability, and their use in the penal codes should be accordingly circumscribed. They are “recklessly,” “negligently”, and [none].

    I think it’s acceptable to impose a prison term for violating a statute with a “recklessness” requirement, but I wouldn’t go lower than that.

  • Tom

    The exceedingly obvious counter to this (somewhat lightweight) point of view is that there are about 1,000,001 ways for the clever offender to hide their guilty mind, to hide their intent. Intent is very hard to prove and provides the most common escape hatch for white collar criminals who steal and trash billions in wealth every year.

  • Caleb

    There are actually two issues here: 1)the proliferation of new laws which criminalize increasingly wider and more minute areas of civil life, and 2) the weakening of mens rea requirements within those laws. Mr. Mead wisely focuses on the first issue, as it more aptly explains the problem of unintentional criminal violations.

    Mens rea requirements, however, do not pertain to the perpetrator’s knowledge the law. It is universally accepted Common Law doctrine that “ignorantia juris non excusat” or “ignorance of the law does not excuse.” Mens rea levels (typically divided into four ordinal tiers: negligence; recklessness; knowledge; and purpose) only ask if the perpetrator knew he was indeed doing the act in question, not that he knew the act was illegal.

  • Jim.

    I agree that there are far too many laws. Perhaps along with a “balanced budget” amendment, we need a “balanced lawbooks” amendment, which requires legislators to retire one page of legal code for every page they seek to add.

  • Toni

    Is that Mission Creep in Congress, or Mission Creeps?

  • Criminal Attorney Chicago

    There are so many laws which a common man don’t know and doing some work he may break the law. Sometimes its not an issue and some times it becomes a big issue. Mean while lawyers are there who are well aware of these law and help people not performing such task again. All the time before punishing any one the intention behind the work is the most important factor.

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