Mens Rea And The Koch Conspiracy

Everybody loves bipartisan crim law initiatives, and one put forth by Republican Congressman Jim Sensenbrenner seemed destined for broad approval.  The bill sought to impose a mens rea requirement on criminal conduct when Congress was too lazy to include it in its initial enactment.

Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.”

So why do some laws lack a mens rea requirement? They tend (though are hardly so limited) to be regulatory laws that are backed up by criminal sanctions. There are tens of thousands of laws that demand people do or not do some remarkably inconsequential act, such as not throwing undersized fish over the side of a boat.

The way Congress compels compliance with these trivial regulations is to enforce it with a criminal sanction, such as “failure to do X is a felony punishable by up to seven million years imprisonment.”  And there are, literally, tens of thousands of opportunities to visit Club Fed.

These laws have been subject to strict liability, not because they are so evil and harmful, as they are almost invariably malum prohibitum laws, wrongs only because Congress says so, not because they reflect some inherent immorality.  The problem, as was made clear in the fish case or the Gibson guitar case, is that no one knows all the tens of thousands of regulations the government enacts, creating a trap for the unwary when there is no rational reason to believe that conduct is wrong, no less criminal.

Of course, as the DoJ points out, the maxim that “ignorance of the law is no excuse” (except if you’re a cop) has been around for centuries.  What hasn’t been around for centuries, however, are the tens of thousands of trivial regulations that can land someone’s butt in prison just as well as a nice drug conspiracy. So Main Justice didn’t show Sensenbrenner’s bill the love.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

By “countless,” she means too few to count. Or she means nothing other than a new law would limit prosecutors to only those defendants who deserved to be prosecuted. That would cause sad prosecutor tears.

It’s not that the proposed law is without problems, as is any law that seeks to employ simple means to address a complex problem. The language exposes the law to some confusion, particularly subdivision two,

[D]oes the requirement that “no state of mind is required by law for a Federal criminal offense” apply to every element, or just one element? Crimes consist of several elements, and each element of the crime has a mental state. Is the law supposed to be triggered only when Congress (or judicial precedent, see above) has not included any mental state, or when there is no express law on the element for that particular element? 

Fair questions, and questions that can and should be addressed so that the application of this mens rea requirement doesn’t spawn conflict and confusion. And now, before passage is the time to raise these issues so they can be adequately addressed before more unintended consequences arise.

But at the Intercept, another, far more bizarre and nefarious, challenge to the law has arisen.  Why? Because the hated Charles Koch backs the law.  And when the dreaded conservative libertarian Koch Brothers are within a million miles of a law, it must be an evil conspiracy.

But as The Intercept’s Lee Fang wrote earlier this month, the ostensible alliance over liberalization of America’s criminal justice laws was based on a misunderstanding of the Koch brothers’ fundamental political goal.

That goal is, quite consistently, to advance their own corporate interests.

So, while the Kochs and the liberal groups used similar language in their critique of the criminal justice system, when it came down to actual legislation, the Kochs were focused on reducing criminal prosecutions of corporations, not people.

Koch and the House Republicans turned out to be pushing a bill that critics describe as a “Get Out of Jail Free” card for white-collar criminals.

The imposition of a mens rea requirement would be expected to bring tears of joy to a progressive’s eyes.  That is, unless a couple guys they despise happen to like it too. Then it morphs from an element of an offense to a free ride for rich corporate tools.

This is utterly batshit crazy.

Now, CAP president Neera Tanden is issuing statements that “the bill is not aimed at addressing the aspects of the criminal justice system that are the drivers of mass incarceration and inequality and should not be part of any genuine discussion of criminal justice reform.” To the contrary, she says: “The bill would make it much more difficult to enforce bedrock regulatory safeguards — such as environmental, health, and consumer safety protections — and leave communities of color disproportionately vulnerable to unscrupulous, fraudulent, and predatory business practices that exacerbate existing inequality in our communities.”

Interesting twist, but total crap. While regulatory offenses aren’t drivers of mass incarceration, they are the root cause of overcriminalization, those “Three Felonies a Day” of which Harvey Silverglate wrote. And they impact people of all colors.

Could this serve the corporate interests of the dreaded Koch Brothers? You bet. But the fact that they support this reform doesn’t mean the reform is either bad, wrong, evil or harmful to the interests of others, particularly “communities of color.”  The contention that imposing a basic mens rea requirement on laws that impose criminal sanctions on tens of thousands of trivial regulations will wreak havoc is absurd.

To the extent that lying, cheating and stealing aren’t otherwise known to “reasonable people” to be wrong and against the law, opposition is silly. This is nothing more than needed reform, even if it still needs to be tweaked to address open issues, as viewed through the myopic political hatred of the Koch Brothers. To let ideological hatred kill necessary reform is unconscionable. And it’s a disgrace that the same law the Center for American Progress would otherwise embrace is subject to attack for no better reason than they won’t get in bed with bros.


19 comments on “Mens Rea And The Koch Conspiracy

  1. Cristian

    I’m all for specifying states of mind, but the “reasonable person” subdivision is confusing as hell—it seems designed, if indeed the Koch brothers tailored it that way, to lead many a corporate defendant to raise a mistake of law defense.

      1. Cristian

        I know, pretty bad. Maybe it’s my own wide-eyed surprise at seeing the dreaded “reasonable man” imported into criminal law.

        1. SHG Post author

          As you know, I hate the “reasonable person” standard, as it’s generally meaningless, provides no concrete guidance and is too easily met. Still, it’s better than strict liability, and if it was up to me, I would want intentional to be the standard for all crimes.

          And the sad reality is that good law helps everyone, and that includes the Koch Brothers. So should everyone suffer because the Koch Brothers benefit too? That’s kinda nuts.

          1. Chmercier

            I call this the “weak teacher principle,” where everyone gets punished because of one or two bad students. It’s either to deign responsibility, instill fear, or use pressure to punish others.

            I don’t know if Hanlon’s applies, but the threshold for making legal reforms should not be “a couple people may take advantage”…Which would show intent, i.e., the whole point of the law. The argument that the KOCH BROS may take advantage nullifies the law is shallow at best, or mendacious at worst. They’d rather punish thousands than have someone they disagree with possibly go unpunished for a little while.

            But the whole point of the law, while there are some grey areas, would be that if someone were to show the intent behind regulatory violation, then there could be adjudication.

          2. Chmercier

            Sorry if I was unclear! I agree with you – this reform is needed, overall.

            The whole argument that the KOCH BROS may abuse it is…lame, at best.

            1. SHG Post author

              I understood that. SJ is a law blog and most readers are lawyers or judges. Validation is frowned upon, as are non-lawyer opinions on what the law (“the whole point of the law…”) is, in the absence of some very sound reasoning that serves to illuminate the point. This isn’t a popular vote, and repeating what has already been said doesn’t contribute any new thought.

    1. mb

      It doesn’t mean they have to know it was illegal. It means that it has to be reasonably knowable that it could be a bad thing to do. It’s aimed at things like when a federal law incorporates foreign law into its definitions of offenses. The more sophisticated and white collar the defendant and the more business related the offense, the harder it will be to argue it wasn’t knowing.

      1. SHG Post author

        There are regulatory crimes that are so ridiculously arcane and puny that no one, no corp., nobody, would ever believe they’re enforced with criminal sanctions. There are *a lot* of regulatory crimes.

  2. the other rob

    I bet those evil Koch bros breath air too! Perhaps the CAP should boycott that?

    ISTR that there have also been some initiatives at state level, aimed at adding a Mens Rea element to more local strict liability offences. More power to all of those who are pressing for such much needed reforms.

  3. Tice with a J

    Unless I’m thoroughly misreading this bill, it seems like there are good reasons for selfish people to support it, even though the bill is not tailored to the selfish. The Koch brothers have a lot of employees, after all, and it can’t be any fun to replace them when they get arrested. Plus, there’s the matter of optics: the Koch brothers want a better image, so supporting a good bill is a good idea. The bill doesn’t have to be a backdoor deal; in fact, the better the bill, the better the image boost, so if you’re looking for an ulterior motive, look to see how good the bill is!

    Alas, it seems that the anti-Koch people are more than willing to cut off their noses to spite their faces. Partisanship is an ugly thing.

  4. ecpa

    The fish case, Yates v. United States, does not support your argument here. The statute in Yates, 18 USC 1519, has clear mens rea requirements. It prohibits “knowingly” engaging in certain conduct (including destroying or concealing any record, document, or tangible object) “with the intent to impede, obstruct, or influence” a federal investigation. A case in which the government must prove an intent to obstruct justice is not a case in which “there is no rational reason to believe that conduct is wrong.” Instead, Yates addressed whether a fish was a tangible object within the meaning of section 1519; the Court concluded 5-4 that it was not.

    1. SHG Post author

      It’s an example, by way of a story that most people already know, of the ridiculousness of federal regulations. It wasn’t mean to be an example of a regulation lacking a mens rea requirement. It’s also an example of the fact that inclusion of the mens rea of knowing is neither unusual nor the end of the world if imposed externally by the new bill. Sorry if that wasn’t clear.

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