In reforming federal criminal law, intent is key

On November 17, the House Judiciary Committee unveiled four bills to address what we and other reformers have called “over-criminalization.” The first of these, The Criminal Code Improvement Act, was principally sponsored by Rep. James Sensenbrenner (R-Wis.) and bipartisan cosponsors including Rep. John Conyers (D-Mich.), the House’s longest-serving member. The bill sought to clarify federal criminal standards regarding criminal intent. The next day, Sen. Orrin Hatch (R-Utah) introduced his own, similar criminal justice reform bill.

On November 18, Sensenbrenner’s bill sailed through committee markup unanimously, but left-wing groups such as ThinkProgress and Public Citizen came out in opposition, falsely characterizing it as a sop to business. The White House followed suit—placing in jeopardy the Obama administration’s stated desire for criminal-justice reform, including changes to federal sentencing laws.

{mosads}That’s unfortunate. Over-criminalization, which refers to the vast expansion of what is deemed criminal under law, is a very real concern. The federal criminal code now contains nearly 5,000 crimes and more than 300,000 criminally enforceable regulations. Thus, it is impossible even for trained attorneys, let alone the everyday citizen, to know what may be considered criminal. According to civil-libertarian lawyer Harvey Silvergate, the average American unknowingly commits three felonies a day.

Consider, for example, Lawrence Lewis, the former chief engineer of a military retirement home who in 2007 worked to avert a flooding problem at the home by diverting sewage to a storm drain that he believed was connected to D.C.’s sewage treatment plant. Unfortunately for Lewis, that drain actually emptied into a creek that was connected to the Potomac River. Despite his having the best of intentions and reacting to exigent circumstances, the father of two was prosecuted under a provision of the Clean Water Act that did not require a showing of mental culpability, and he now has a criminal record and all of the burdens that come with it.

The essence of the over-criminalization problem is that people like Lewis can be held criminally liable for unknowing errors. Traditionally, individuals could be held civilly liable for accidentally transgressing legal norms, but to be criminally convicted, an individual had to have mens rea, Latin for a “guilty mind.” The federal legal and regulatory codes, however, are now rife with offenses that lack such protections: According to a 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers, 57 percent of the 446 new nonviolent crimes proposed in the 109th Congress lacked the traditional intent standard, as did 64 percent of those crimes ultimately enacted into law.

That may be defensible if Congress clearly decides that deterring certain conduct is so important that it requires that we prosecute even mistaken violations. But what if Congress is silent? Sensenbrenner’s and Hatch’s bills squarely address this problem by making “knowing” or “willful” violations the default rule for criminal violations in federal law: Though Congress may make certain actions criminal without a showing of intent, courts would no longer be permitted to assume that Congress meant to do so unless a statute says so explicitly.

The White House blatantly mischaracterized these two bills as affecting the prosecution of terrorists—though no reasonable person could view an act of terrorism as unintentional. That charge would come as a shock to the diverse array of groups that have supported such reforms, from the conservative Heritage Foundation to the liberal American Civil Liberties Union, the Michigan chapter of which recently testified in support of a similar default criminal-intent bill in that state.

Indeed, fourteen states already have statutes that explicitly create a default criminal-intent standard. Ohio most recently enacted such legislation, in December 2014. Like Sensenbrenner’s bill in committee, Ohio’s default criminal-intent act passed both houses of its legislature unanimously, and there is no good reason why there shouldn’t be similarly broad, bipartisan support for the idea at the federal level. 

Reasonable minds can differ about the merits of various federal laws and regulations, but it’s indisputably impossible to navigate 300,000 rules without risk of error. If Congress is willing to hold people like Lewis criminally responsible for unknowingly violating federal rules, it should come out and say so. The White House’s stated opposition aside, let’s hope Congress takes up the new bills—and starts taking criminal intent seriously.

Copland is a senior fellow and director of legal policy and Mangual a legal policy project manager at the Manhattan Institute.

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