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The epidemic of over-criminalization was the focal point of remarks delivered by Sen. Orrin Hatch (R-Utah) on Monday afternoon. Justice reform has been a hot topic in Congress this year, particularly in the Senate, where several Judiciary Committee members are finalizing the language of a bill that would bring modest sentencing and prison reforms to the corrections system. Unfortunately, over-criminalization has been largely missing from the debate.
Hatch spoke about the topic from the Senate floor, concentrating much of his remarks on the lack of meaningful mens rea, or guilty mind, requirements in federal criminal law. This particular issue was the topic of a recent FreedomWorks publication, The Over-criminalization Epidemic: The Need for a Guilty Mind Requirement in Federal Criminal Law.
The logic behind the guilty mind requirement is that there are so many federal criminal laws and regulations carrying criminal penalities, Americans cannot possibly know when they are they have committed a crime. "There are now nearly 5,000 criminal statutes scattered throughout the U.S. Code. But statutes are only part of the story. In addition, there are an estimated 300,000 criminal regulatory offenses buried in the 80,000-page Code of Federal Regulations," Hatch explained. "If the administration promulgated one criminal regulation per day—that is, if it created one new crime each day—it would take 822 years to create that many criminal regulations."
Hatch explained the inanity of some federal crimes, such as 18 U.S. Code § 707, which prohibits the use of the 4-H club logo without authorization, and a federal regulation that prohibits pets on leashes longer than six feet. Both can carry penalities of up to six months in prison, as well as fines.
"Why on earth do either of these actions need to be federal crimes? I don’t dispute that really long dog leashes can be annoying, and I can understand why the 4-H club wouldn’t want pretenders roaming around claiming to serve the heads, hearts, hands, and health of youth," Hatch said. "But these are not proper subjects for criminal penalties. Whatever crises exist with overlong dog leashes or impostor 4-H clubs can be dealt with through civil means."
"The problem with such obscure and esoteric crimes—aside from the sheer embarrassment they should cause to Congress and the promulgating agency—is that they criminalize conduct that no reasonable person would know was illegal. Walking a dog on a seven-foot leash is not inherently wrongful. Nor is putting a 4-H club logo on a sign," he explained. "And even if common sense might suggest checking with the 4-H club before using its logo, no sane person would think it’s a crime not to do so."
Hatch cited a couple of examples of how broad, vague, and poorly written laws have turned innocent people into criminals. John Yates, as the Utah Republican explained, is a fisherman who was prosecuted under the anti-shredding provision of the Public Company Accounting Reform and Investor Protection Act, or Sarbanes-Oxley. The provision was intended to go after those who destroy documents related to alleged financial fraud. But Yates was charged and successfully prosecuted under it for allegedly throwing fish overboard. The conviction was overturned by the Supreme Court in February.
He also brought up the case of Lawrence Lewis, who was successfully prosecuted under the Clean Water Act for unknowingly diverting backed up sewage from a nursing home into Washington, DC's Rock Creek. "I was treated like everybody else, like I was a hardened criminal," Lewis said. "Imagine what I looked like. 'What you in for? Backed up toilets.'"
Examples like these are why Hatch says a default mens rea requirement in federal criminal law. "The person who mistakenly retrieves the wrong coat from the coat room does not become a thief merely because he took something that wasn’t his. Only if he takes a coat knowing that it belongs to someone else has he committed a criminal act, for only then has he acted with criminal intent," Hatch said. "Similarly, a person who enters land that he believes is public property but that in fact belongs to another person does not thereby commit criminal trespassing. Only if the person knows she is not legally entitled to enter the property is she guilty of a criminal offense."
"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," he said. "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."
Hatch blasted the current mens rea requirements in federal laws, where they do exist, calling many of them inadequate, and laid out the principles behind his default mens rea bill, which would set a standard in laws that lack such protections. "There’s been a lot of talk about sentencing, but little about mens rea, he noted. "It’s time to change that."
"My bill would not mandate a particular mens rea standard for all crimes, nor would it override existing standards set forth in statutes. All it would do is set a default for when Congress has failed to specify the criminal intent required for conviction. Congress would remain free whenever it wanted to specify a different mens rea standard for a statute, replacing the default with its own chosen standard," Hatch explained. "The default would merely operate in the absence of congressional action. It would bring clarity, ensure that Congress does not through oversight create crimes without any mens rea requirement, and protect individuals from being convicted for conduct they didn’t know was wrong."
The looming Senate bill that will include modest sentencing and prison reforms would be an ideal vehicle for default mens rea. It would be almost impossible to get through as a stand-alone bill, as President Barack Obama would certainly express strong opposition. Nevertheless, Hatch has a point. Federal prosecutors should be required to prove that a person knowingly committed a crime before their liberty can be threatened.