The Over-criminalization EpidemicThe Need for a Guilty Mind

Requirement in Federal Criminal Law

by

Jason Pye

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“The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

– Dr. Floyd Ferris, Atlas Shrugged1

T here is an epidemic in the United States, one that is a creation of irrational lawmakers and busybody bureaucrats, and it presents a threat to the liberty of virtually every Amer-

ican. The federal criminal code has grown significant over the past 45 years. It is often complex and vague. Many Americans breaking these laws do not even realize they are doing so.

This epidemic has come to be known as “over-criminalization.” It is not just a theory or a concept in the abstract. Real people are being charged with federal crimes that they were not aware existed, or laws are being read in a manner that defies congressional intent. Their lives and livelihoods are ruined in the process.

Bipartisan support is growing around several solutions to these problems. Those solutions are:

1. Create an easily-accessible, online list of all federal statutes and regulations carrying criminal penalties, to reduce the possibility that people will commit crimes without knowing that they exist;

2. Create a default mens rea standard for federal criminal statutes and regulations that lack one; and

3. Create a statutory rule of lenity so that cases of ambiguity are resolved in favor of the defendant.

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1 Ayn Rand, Atlas Shrugged, Random House, 1957 http://www.amazon.com/Atlas-Shrugged-Centennial-Publisher-printing/dp/B0086KED6I/

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Too Many Criminal Laws & Regulations

T he framers of the United States Constitution mentioned only three crimes in the foundational document—treason, piracy, and counterfeiting.2 In April 1790, the First United States

Congress, gathered at Federal Hall in New York City, passed what is known as the “Crimes Act.”

The Crimes Act—the text of which “fit on to two sheets of parch-ment, each around 27 inches by 22 inches”—codified the offenses against the newly formed federal government and added a handful of new offenses, including larceny, manslaughter, murder, and per-jury.3 In total, there were 17 federal offenses. They were simple and clearly defined so that every American could understand them.

“At the time of the founding, almost all criminal law punished conduct that everyone would recognize as wrongful—offenses like murder, theft, and burglary,” former Attorney General Ed Meese wrote of the Crimes Act. “And virtually all crimes required proof that the accused had acted with a ‘guilty mind’—that is, with the intent to do a wrongful act.”4

In 2008, there were nearly 4,500 federal statutes that carried criminal penalties.5 This number has since risen. Between 2008 and 2013, an additional 439 new federal offenses were added to the books.6 The Congressional Research Service, which conducted the review, noted that “there is the possibility that some relevant statutes were not identified,”7 meaning the number of new offens-es may actually be higher.

In 2013, the House Over-Criminalization Task Force asked the Congressional Research Service for a complete review and accounting of all federal offenses, a task that proved impossible to accomplish. “CRS’ initial response to our request was that they lack the manpower and resources to accomplish this task,” Chairman Jim Sensenbrenner said in a June 2013 hearing. “And I think this confirms the point that all of us have been making on this issue and demonstrates the breadth of over-criminalization.”8

The size and scope of federal criminal offenses created by Congress are only one part of the problem with over-criminalization, and a relatively small one compared to federal regulations that carry criminal penalties. Far too often, lawmakers have deferred to executive-level federal agencies to promulgate regulations to enforce the laws they create. Through their deference to federal agencies to develop rules and regulations to carry out the laws

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2 Brett Snider, Esq., “Which 3 Crimes Are in the U.S. Constitution?,” FindLaw, July 3, 2013 http://blogs.findlaw.com/blotter/2013/07/which-3-crimes-are-in-the-us-constitution.html

3 Wall Street Journal, “An Act for the Punishment of Crimes,” July 22, 2011 http://www.wsj.com/articles/SB10001424053111903461104576462471530874138

4 Edwin Meese, III, “The Constitution and Crime,” originally published at The Washington Times, September 15, 2010

5 John S. Baker, “Revisiting the Explosive Growth of Federal Crimes,” The Heritage Foundation, June 16, 2008 http://www.heritage.org/research/reports/2008/06/ revisiting-the-explosive-growth-of-federal-crimes

6 Alison M. Smith, Richard M. Thompson, II, “Criminal Offenses Enacted from 2008 – 2013,”Congressional Research Service, June 23, 2014 https://www.nacdl.org/WorkArea/Download Asset.aspx?id=34225&libID=34194

7 Ibid.

8 Hearing Transcript of the House Over-Criminalization Task Force, “Defining the Problem and Scope of Over-Criminalization and Over-Federalization,” Government Printing Office, June 14, 2013 http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg81464/pdf/CHRG-113hhrg81464.pdf

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they enact, Congress has created a fourth branch of the federal government, one that has little regard for constitutional limitations or the people.

It Could Happen to You“I was treated like everybody else, like I was a hardened criminal. Imagine what I looked like. ‘What you in for? Backed up toilets.’”

– Lawrence Lewis 9

H arry Silverglate hypothesizes that the average American commits three felonies a day.10 These purported crimes are committed unwittingly, without malice or intent. Yet,

overzealous law enforcement officials can still prosecute them. To paraphrase the great free market economist and Nobel laureate Milton Friedman, we are all criminals now.11

This is not an abstract concept or theory. There are countless examples of Americans being prosecuted for unwittingly commit-ted “crimes” under obscure or misapplied laws and regulations.

“There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” John Baker, a law professor and legal scholar, once said. “That is not an exaggeration.”12

Below are some examples of people who, unfortunately, have first-hand experience with over-criminalization in federal law:

• In May 2010, John Yates, a fisherman, was prosecuted under Public Company Accounting Reform and Investor Protection Act, known as Sarbanes-Oxley, a bill that was meant to combat financial fraud, for allegedly throwing undersized red grouper overboard.13 A little more than a year later, he was sentenced for violating the “anti-shredding” provision of Sarbanes- Oxley, which prohibited the destruction of tangible docu-ments, to 30 days in prison and three years of supervised released.14 His livelihood was put in serious jeopardy as a re-sult. Fortunately for him, his conviction was overturned by the U.S. Supreme Court,15 but not until he had already undergone the trauma of being convicted of a crime and spending years of his life and significant funds in defending himself.

9 Gary Fields, John R. Emshwiller, “A Sewage Blunder Earns Engineer a Criminal Record,” Wall Street Journal, December 12, 2011 http://www.wsj.com/news/articles/SB10001424052970204903804577082770135339442

10 Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent, Encounter Books, September 2009 http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594032556/

11 Milton Friedman, “The Economy: We Are All Keynesians Now,” Time, December 31, 1965 http://content.time.com/time/magazine/article/0,9171,842353,00.html

12 Gary Fields, John R. Emshwiller, “Many Failed Efforts to Count Nation’s Federal Criminal Laws,” Wall Street Journal, July 23, 2011 http://www.wsj.com/articles/SB10001424052702304319804576389601079728920

13 John Yates, “A Fish Story,” Politico Magazine, April 24, 2014 http://www.politico.com/magazine/story/2014/04/a-fish-story-106010.html

14 Ibid.

15 Lyle Denniston, “Opinion analysis: A fisherman slips through federal prosecutors’ net,” SCOTUSblog, February 25, 2015 http://www.scotusblog.com/2015/02/opinion-analysis-a- fisherman-slips-through-federal-prosecutors-net/

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• Alison Capo unwittingly violated the Migratory Bird Treaty Act when, in June 2011, her 11 year-old daughter, Skylar, saved a baby woodpecker from the family cat. Her daughter, an aspiring veterinarian, planned to nurse the bird back to health. But federal law makes it a crime to take or transport a protected species, such as a woodpecker,16 from its habitat. U.S. Fish and Wildlife fined her $535 and threatened a year in prison.17 After receiving negative media attention, the citation was withdrawn.18

• In March 2007, Lawrence Lewis, an engineer, was prosecuted for a violation of the Clean Water Act for following established protocol at the military retirement home for which he worked to remedy a sewage back up in an area where many vulnerable residents lived. He believed he diverted the sewage into the District of Columbia’s treatment system. Unbeknownst to him, however, the flow went to a storm drain that fed into Rock Creek, a tributary of the Potomac River.19 On the advice of his attorney, who believed a jury trail would end with a harsh sentence, Lewis accepted a plea deal. He received probation and a $2,500 fine.20

• While Metro Transit Police will issue a citation for eating in the D.C. Metro stations and subway cars, juveniles doing so were arrested and detained for breaking the law. Ansche Hedgepeth, a seventh-grade student, was arrested for eating french fries at the Tenleytown-AU Station on her way from school in October 2000.21 She was fingerprinted and detained in a juvenile facility until her parents picked her up. Although juveniles are now cited, rather than arrested, the D.C. Circuit Court of Appeals, in 2004, upheld Hedgepeth’s arrest and detention.22 The opinion of the three-judge panel for court was written by then-Circuit Court Judge John Roberts,23 who now presides over the United States Supreme Court.

• In August 2010, Eddie Leroy Anderson and his son, Eddie Joseph Anderson, pled guilty to violating the Archaeological Resources Protection Act.24 The two had been digging up Native American arrowheads on federally owned land in Idaho. The elder Anderson, a former educator who collects artifacts as a hobby, did not intend to break the law, which requires a permit to excavate on federal land, and did not realize he was doing so. Faced with a two-year prison sentence, Anderson and his son pled guilty and received one year of probation and a $1,500 fine.

16 U.S. Fish and Wildlife Service, “Birds Protected by the Migratory Bird Treaty Act” http://www.fws.gov/migratorybirds/regulationspolicies/mbta/mbtintro.html

17 CBS News, “Girl saves woodpecker, but her mom fined $535,” August 4, 2011 http://www.cbsnews.com/news/girl-saves-woodpecker-but-her-mom-fined-535/

18 NBC News, “Agency cancels $535 fine for woodpecker savior’s mom,” August 2, 2011 http://www.nbcnews.com/id/43986826/ns/us_news-weird_news/t/agency-cancels-fine-woodpeck-er-saviors-mom

19 Gary Fields, John R. Emshwiller, “A Sewage Blunder Earns Engineer a Criminal Record,” Wall Street Journal, December 12, 2011 http://www.wsj.com/news/articles/SB10001424052970204903804577082770135339442

20 Ibid.

21 ABC News, “Girl Arrest For Eating in Subway,” November 16, 2000 http://abcnews.go.com/US/story?id=94999

22 Washington Post, “Girl Whose French-Fry Arrest Led to Metro Policy Change Sets Sights on College, Career, January 8, 2006 http://www.washingtonpost.com/wp-dyn/content/article/2006/01/07/AR2006010701003.html

23 Judge John Roberts, Hedgepeth v. Washington Metropolitan Area Transit Authority, FindLaw.com, October 26, 2004 http://caselaw.findlaw.com/us-dc-circuit/1459242.html

24 Gary Fields, John R. Emshwiller, “As Criminal Laws Prolifer-ate, More Are Ensnared,” Wall Street Journal, July 23, 2011

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• Racing legend Bobby Unser, in June 2007, was convicted for operating a snowmobile in national wilderness area in viola-tion of the Wilderness Act.25 Unser and a friend, Robert Gayton, were lost in the midst of a fierce snowstorm near the former’s New Mexico home. Both men experienced problems with their snowmobiles, forcing them to take shelter in a cave. They were forced to eat snow to stay hydrated. While the situation could have had a fatal outcome, fortunately, Unser and Gayton eventually found a barn and phone to seek help.26 Although they took on Mother Nature and won, they were unable to escape the law. Unser was required to pay a small fine, which he unsuccessfully appealed.27

These are only a handful of the examples of over-criminalization of federal law. Yates’ case is particularly interesting because, unlike some of the others, he was successful in his effort to clear his name.28 In February 2015, the Supreme Court overturned his conviction, holding that fish could not be considered a tangible object under Sarbanes-Oxley.29

Although she dissented from the majority in overturning the conviction, Justice Elena Kagan recognized the problem at hand. Yates’ case, she wrote, “is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”30

Provide Fair Notice of What Is a Crime“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

– James Madison 31

O ne long-held legal maxim is that “ignorance of the law is not a defense.” But today, when there are so many federal crim-inal offenses, such a maxim has less meaning. Americans

cannot possibly know every one of the approximately 4,500 federal statutes carrying criminal penalties currently codified into law.

More shocking is the best estimate of federal rules and regulations carrying penalties. There are so many that researchers have had difficult counting them. In 1991, John C. Coffee noted that “there are over 300,000 federal regulations that may be enforced criminally.”32 Today, the estimate exceeds 400,000.33

25 Jack Thompson, “Bobby Unser Convicted on Wilderness Law,” Chicago Tribune, June 13, 1997 http://articles. chicagotribune.com/1997-06-13/sports/9706130068_1_ bobby-unser-fined-federal-judge

26 Associated Press, “Bobby Unser Survives Snowmo-biling Ordeal,” December 23, 1996 http://www.nytimes.com/1996/12/23/sports/bobby-unser-survives- snowmobiling-ordeal.html

27 Testimony of Mr. Robert “Bobby” Unser before the Subcom-mittee on Crime, Terrorism, and Homeland Security, “Reining in Overcriminalization: Assessing the Problem, Proposing Solutions,” Government Printing Office, September 28, 2010 http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg58476/html/CHRG-111hhrg58476.htm

28 Lyle Denniston, “Opinion analysis: A fisherman slips through federal prosecutors’ net,” SCOTUSblog, February 25, 2015 http://www.scotusblog.com/2015/02/opinion-analysis-a- fisherman-slips-through-federal-prosecutors-net/

29 Adam Liptak, “In Overturning Conviction, Supreme Court Says Fish Are Not Always Tangible,” The New York Times, February 25, 2015 http://www.nytimes.com/2015/02/26/us/justices-overturn-a-fishermans-conviction-for-tossing- undersize-catch.html

30 Justice Elena Kagan, Dissent in John L. Yates v. United States, February 25, 2015 http://www.supremecourt.gov/opinions/14pdf/13-7451_m64o.pdf

31 James Madison, The Federalist No. 62, Independent Journal, February 27, 1788 http://www.constitution.org/fed/federa62.htm

32 John C. Coffee, Does ‘Unlawful’ Mean ‘Criminal’? Reflections on the Disappearing Tort/Crime Distinction in American Law, Boston University Law Review, March 1991 https://litigation- essentials.lexisnexis.com/webcd/app?action=DocumentDisplay &crawlid=1&doctype=cite&docid=71+B.U.L.+Rev.+193&srctype =smi&srcid=3B15&key=525ef321cad68ef12c01e3decc343705

33 John Jessup, “’Overcriminalization’ Making Us a Nation of Felons,” CBN News, July 9, 2012 http://www.cbn.com/ cbnnews/us/2012/March/Overcriminalization-Making- Us-a-Nation-of-Felons/

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“Whereas the [American Bar Association] Task Force in 1998 and Professor John Baker in 2008 reported scholarly estimates of the number of criminal offenses in federal statutes, both acknowledged that, at a minimum, there are tens of thousands of additional criminal offenses in federal regulations,” Brian S. Walsh and Tiffany M. Joslyn explain. “Regulatory criminalization thus has profound implications for the problem of how to ensure indi-viduals and businesses receive fair notice of what conduct can be punished criminally.”34

A first step in helping Americans get a handle on what is and is not a crime would be a “crime count”—a compilation, in an easily searchable online database, of all federal statutes and regulations that carry criminal penalties, what their punishments are, and what kind of intent (mens rea) is required to violate the law. This proposed solution is gaining wide bipartisan support in and outside of Congress, as lawmakers are beginning to appreciate that even well-meaning and well-educated Americans are often ignorant of the laws and do not know how to ensure that their conduct is legal before taking action.

34 Brian W. Walsh, Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, Heritage Foundation, May 5, 2010 http://www.heritage.org/research/reports/2010/05/without-intent

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Strict Liability is the Order of the Day“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a ‘vicious will.’”

– Supreme Court Justice Robert Jackson 35

O bviously, acts against persons should be punishable—such as murder, manslaughter, and theft—but there is a differ-ence between “malicious” and “willful” intent to commit

a crime and unwittingly doing so. In short, without intent to commit an unlawful act, there is no crime; actus rea without mens rea is not illegal.

Mens rea, the guilty mind, is another long-held legal principle. It defines the mental state of a person when they committed a crime to determine their culpability. The guilty mind requirement has its roots in Roman law, and it was adopted in English common law,36 which provided the basis for the American legal system.

“It is safe to assert at the outset, that the general concept of mens rea necessary for criminality was very vague. But with the ever developing but painfully slow processes of the law, more precise and discriminating lines were being established regarding the evil mind necessary when a given set of circumstances was present,” wrote Eugene J. Chesney in explaining the history of the guilty mind requirement. “It was just as logical then as now, that since every felony involved different social and public interests, the mental requisites for criminality in one must needs differ from the other.”37

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35 Justice Robert Jackson, Majority Opinion in Morissette v. United States, January 7, 1952 https://www.law.cornell.edu/supremecourt/text/342/246

36 Eugene J. Chesney, “Concept of Mens Rea in the Criminal Law,” Journal of Criminal Law and Criminology, 1938-1939 http://scholarlycommons.law.northwestern.edu/cgi/viewcon-tent.cgi?article=2828&context=jclc

37 Ibid.

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There are four different types of mens rea in American law:38

• Intent: An individual acts with the purpose and understand-ing that the end result of their actions will be harmful.

• Knowledge: An individual understands that the end result of their action is likely to be harmful.

• Recklessness: An individual understands that their actions carry a significant risk of harm.

• Negligence: An individual is unaware that there actions would result in harm, but they should have been.

Unfortunately, mens rea requirements in federal criminal code have been severely eroded. An examination of the 446 criminal offenses in proposed in the 109th Congress (January 3, 2005 to January 3, 2007) conducted by the Heritage Foundation and the National Association of Criminal Defense Lawyers discovered that 57 percent had weak mens rea requirements. Of the 36 proposed criminal offenses that became law, 64 percent lacked an adequate mens rea requirement, or had none at all.39 Strict liability has become the status quo.

Exacerbating this problem is the fact that “nearly one-quarter” of criminal offenses enacted by the 109th Congress allow bureaucrats, with little oversight or accountability, to promulgate additional criminal penalties. “This result has significant ramifications. When Congress enacts a single offense authorizing regulatory criminal-ization, it effectively attaches criminal penalties to regulations, rules, and orders that may not yet have been contemplated, let alone drafted and made into law,” the authors of the study noted. “A single criminal offense may serve as the authority for any number of additional, regulatory criminal offenses.”40

Although passed after the time period examined by Heritage Foundation and the National Association of Criminal Defense Lawyers, the Wall Street Reform and Consumer Protection Act, known as Dodd-Frank, is example of a law that lacks a mens rea requirement.41 The Migratory Bird Treaty Act, by which Ms. Capo was hassled, also lacks such a provision—any killing of a migratory bird, even accidental, for example, is sufficient to be convicted of a crime, and there is no requirement that the person know the bird is a listed migratory bird under federal regulations.42

38 National Paralegal College, “Model Penal Code’s Mens Rea” http://nationalparalegal.edu/public_documents/courseware _asp_files/criminalLaw/basicElements/ModelPenalCode MensRea.asp

39 Brian W. Walsh, Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, Heritage Foundation, May 5, 2010 http://www.heritage.org /research/reports/2010/05/without-intent

40 Ibid.

41 The Economist, “What were you thinking?,” January 24, 2015 http://www.economist.com/news/united-states/21640365-criminal-code-expands-intent-often-ignored-what-were- you-thinking

42 Dr. John S. Baker, Jr. and William J. Haun, “The ‘Mens Rea’ Component Within the Issue of the Over-Federalization of Crime,” The Federalist Society, July 2013 http://www.fed- soc.org/publications/detail/the-mens-rea-component- within-the-issue-of-the-over-federalization-of-crime

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Professor Baker has noted that because of the erosion of the guilty mind requirement in federal criminal law there are “innocent people being convicted not because we have the wrong person, but because they really did not commit a crime.”43 Again, an illegal act without an illegal mindset should not be a crime.

Additionally, Professor Baker explained stark difference between state and federal criminal laws. “[W]hen we look at state criminal law, it is relatively easy, even though states have added many non-common law crimes, it is easy because the meat and potatoes of a local prosecutor, which I was, in murder, rape, robbery, theft, burglary, that is what we dealt with. And most juries do not have difficulty figuring out what those crimes are,” he said. “Indeed, in most state prosecutions the issue is not whether there was a crime, the issue is whether the defendant is the person who did it.”

“In federal law it is just the opposite. The issue is not whether the defendant did something; it is whether what he did was a crime. And we know with 4,500 statutes out there, there are plenty to pick from,” he continued, adding, “And it is easy to pick up one that has, if not a lack of mens rea entirely, a confused mens rea.”44

The act of a crime, or actus rea, is not enough to determine guilt. The motive and intent has to be carefully weighed in order to proved if a person was truly guilty of a prosecutable offense.

Default Mens Rea & the Rule of LenityJustice reform has become the cause célèbre of conservatives, libertarians, and progressives, and justifiably so given the fiscal and human costs of incarceration. Although much of the discussion to date has been focused on sentencing reforms, alternatives to in-carceration, rehabilitative programming to reduce recidivism, and reentry reforms, over-criminalization is an equally important part of the discussion. Yet, it has not received nearly as much attention.

One way federal policymakers could mitigate the epidemic of over-criminalization is by enacting default mens rea legislation. A default guilty mind requirement, which would cover offenses that lack such a provision, would provide a protection for otherwise law-abiding Americans who have unintentionally broken a federal criminal law.

Ideally, this would include a uniform, blanket standard of mens rea that may already exist or could be heightened depending on the

43 Dr. John S. Baker, Jr., Testimony Before the U.S. House Task Force on Over-Criminalization, July 19, 2013 http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg81984/html/ CHRG-113hhrg81984.htm

44 Ibid.

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criminal offense or proposed criminal offense in question. With this, courts would have a guide when Congress failed to include a guilty mind requirement into a law, or when it is excluded from a new offense. A default standard could mitigate strict liability offenses, and it would apply to regulations promulgated by bureaucrats.

Given the complexity of federal criminal law and regulatory offenses, another solution is the rule of lenity, which, like mens rea, has its roots in common law. This maxim holds that ambiguities in criminal laws should be resolved in the defendant’s favor. Although the rule of lenity has been applied in federal courts, it is seemingly on a whim.45

Requiring the rule of lenity by statute, along with default mens rea, will not cure the epidemic of over-criminalization, but these steps could contain it and reduce the risk it poses to the liberty of Americans.

45 Josh Blackman, “Does the Rule of Lenity Still Exist?,” JoshBlackman.com, June 9, 2011 http://joshblackman.com/blog/2011/06/09/does-the-rule-of-lenity-still-exist/

Image credit (cover) Luis Prado, Prisoner https://thenounproject.com/term/prisoner/20352/