On Oct. 1, a bipartisan group of senators including Charles E. Grassley (R-Iowa), Dick DurbinDick DurbinThe Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee Gorsuch rewrites playbook for confirmation hearings Gorsuch: I'm 'sorry' for ruling against autistic student MORE(D-Ill.), and Cory Booker (D-N.J.), announced a plan to reduce mandatory criminal sentences under federal law for nonviolent offenders and help former prisoners reintegrate into society. Such an effort is overdue, but insufficient to fully remedy the overreach of federal criminal law. To do so, lawmakers must also bring attention to what we and other reformers have called “overcriminalization” in federal code.
As Sen. Orrin HatchOrrin HatchOvernight Finance: US preps cases linking North Korea to Fed heist | GOP chair says Dodd-Frank a 2017 priority | Chamber pushes lawmakers on Trump's trade pick | Labor nominee faces Senate US Chamber urges quick vote on USTR nominee Lighthizer Live coverage: Day three of Supreme Court nominee hearing MORE (R-Utah) pointedly asserted in a Sept. 21 statement, ordinary citizens and small business owners are perpetually at risk of unknowingly violating a federal criminal code that lists some 5,000 crimes in the statutes and creates 300,000 more through agency regulations. Legal analyst and litigator Harney Silverglate estimates that the average American commits three federal felonies a day.
Traditional legal principles would protect our hypothetical dog walker. As is still the law in several states, the government traditionally had to show a “guilty mind” (the Latinate legal term is mens rea) to convict someone of a crime. But a joint study of the 2005–06 Congressional session by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 57 percent of the 446 non-violent criminal offenses proposed lacked an adequate criminal-intentrequirement and 23 percent had no criminal-intent requirement whatsoever.
A vast and complex criminal code, crimes that are not self-evidently wrong, and no required showing of criminal intent for conviction combine to place ordinary citizens in jeopardy for innocent mistakes. For example, former automobile racer Bobby Unser is a three-time winner of the Indianapolis 500, but the sports legend is also a convicted federal criminal. His crime? While driving snowmobiles near Unser’s ranch, he and a friend were caught up in a blizzard, eventually having to abandon their vehicles to survive. Unbeknownst to Unser, they had wound up in a protected federal forest—and driving a vehicle in this forest is a crime that, like the dog-walking rule, is punishable by up to six months in prison. A federal judge and an appeals panel both determined that Unser was guilty because the government did not have to establish criminal intent under the statute.
Fortunately, Unser paid a small fine and avoided jail time, but a less-well-heeled defendant may not have been so lucky. Indeed, average Americans, small business owners, and family farmers are most at risk from overcriminalization, since they cannot afford the teams of elite lawyers that large corporations and billionaires employ to keep themselves out of trouble.
Tackling the size and complexity of the criminal code is a large undertaking, but Congress could take a major step by simply enacting a default rule that presumes the government must show criminal intent. Many states have such a rule—most recently Ohio, which enacted default mens rea legislation in late 2014.
A default criminal intent standard would not tie Congress’s hands to enact laws that made certain actions strictly criminal, even for innocent mistakes. Congress would just have to say so.
To be sure, many federal regulations have a valid purpose, but if the proscribed conduct is not obviously wrong, enforcement should generally be civil. There’s a reason to keep vehicles out of some federal forests, but do we really need to criminalize unknowing incursions during snowstorms, especially when we are talking about possible jail time and “convicted criminal” status?
Protecting citizens from criminal convictions for behaviors most people would not intuitively deem criminal should, like sensible sentencing reforms, appeal to lawmakers on both ends of the political spectrum. Senator Hatch deserves kudos for calling attention to this issue. Let’s hope that the members of both parties were listening.
Copland is a senior fellow with and director of, and Mangual is a project manager for, the Manhattan Institute’s Center for Legal Policy.