In a brazenly deceitful post at the Intercept, Lee Fang tried to spin a proposed bill to create the mens rea element of “knowing” as a minimum floor to federal prosecutions as a Koch Brothers conspiracy. The crux of the argument was that if Charles and David Koch were in favor of the law, it must be for some evil purpose. And indeed, the law would have been in the Koch Brothers’ best interest.
And your best interest. And my best interest. And in the best interest of every defendant or potential defendant. Because a law without a mens rea requirement is a strict liability law, a law that one can be criminally convicted of violating without any ill-intent, without even knowledge, without any desire to be other than a good citizen, corporate or individual. The bludgeon of criminal prosecution was never meant to beat down anyone who meant no harm.
The inclusion of a mens rea requirement had never been controversial. Indeed, it was almost universally considered a minimum requirement for a crime, as it was what distinguished criminal conduct from conduct which might give rise to an unintended harmful result, but not conduct that was worthy of criminal punishment. Until now.
The New York Times has come out against the creation of a minimum mens rea element for all federal crimes. At first blush, this seems inconceivable, but then, the rationale for this stance is made very, sadly, clear. Even more than it hates the wrongful prosecution and conviction of defendants, it hates corporations. If a law will benefit corporations as well as individuals, then it’s a bad law.
Congress is achingly close to passing broad, bipartisan legislation that would reform the federal criminal justice system. There is widespread agreement among liberals and conservatives that many parts of the system — particularly federal drug sentencing laws — are overly harsh and fall disproportionately on minorities.
So it is troubling that the whole enterprise may now be in jeopardy because of an unrelated issue: the dispute over whether prosecutors should be required to prove that corporate defendants knowingly violated laws protecting, among other things, the environment and public health and safety.
The description is disingenuous. The proposed law does not require that prosecutors prove “that corporate defendants knowingly violated law.” While the crux of their position is that the law covers all defendants, including corporate defendants, this description is facially dishonest, as it suggests a law that expressly applies to corporate defendants, and conversely, does not apply to individuals. That’s false, and the Times editorial board should be ashamed of itself for this knowing deception.
While most criminal laws require the government to prove “mens rea,” or intent on the part of the defendant, some do not, and the proposed change would apply indiscriminately to all of those. Ignorance of the law is generally not an excuse for breaking it, and it certainly should not be turned into an excuse when the action inflicts serious harm to large numbers of people or to the environment.
The use of the pejorative descriptor, “indiscriminately,” perpetuates the dishonest characterization. It’s like saying the law “indiscriminately” requires all laws to be printed in non-disappearing ink. But the second half of the paragraph is even more artfully troubling. It’s plays off two fundamental tenets of law without mentioning either in the apparent hope that its readers will be so caught up in their hatred of corporations that they won’t notice.
The first is that crimes are broken down into two categories, malum in se and malum prohibitum. The former relates to conduct that is evil in itself, while the latter refers to conduct that is prohibited not because of its inherent wrong, but because a choice has been made to turn facially lawful conduct into a crime.
The ancient maxim, ignorantia legis neminem excusat, plays off its familiarity, but has become a dreaded fallacy given the tens of thousands of crimes created by Congress in the malum prohibitum category. They’re so pervasive, so overly inclusive, that it’s essentially impossible for any American to make it through a day without committing a federal crime. Certainly, no computer user can do so. But you didn’t know that, because a maxim that applied to conduct that was innately wrong doesn’t apply well to conduct which no one knows is prohibited.
How crazy can malum prohibitum get? Kevin Underhill at Lowering the Bar wrote a book about ridiculous laws, The Emergency Sasquatch Ordinance. There are numerous twitter accounts dedicated to stupid laws, which would be very funny but for the fact that real people can be convicted for violating them. Because who would possibly know that under 18 USC §1865 & 36 CFR §7.96(b)(1), it’s a federal crime to play croquet without a croquet permit in any national park in Washington, D.C.?
The second tenet left unmentioned by the Times is the end justifies the means. The complaint is that “the action inflicts serious harm to large numbers of people or to the environment.” So conduct that lacks a mens rea requirement that only harms a small number of people and not the environment is bad, but if the end is sufficiently harmful to meet some unmentioned bar, then the principle is forgotten in favor of the desire to punish.
Not only is this tacit appeal to self-interest unprincipled, but it’s nonsensical. The same conduct that violates a federal law may harm no one, or ten million people. It may not harm a blade of grass or it may despoil a thousand square miles of pristine earth. But the Times would imprison you just the same.
The proposed provision would require that prosecutors prove that a defendant “knew, or had reason to believe, the conduct was unlawful,” if a “reasonable person” would not have had reason to believe it was unlawful. This confusing standard would create endless litigation as the government and defendants argued over how, exactly, to meet it in each new case.
If anything, it is still too hard for prosecutors to go after corporate bad actors who endanger the health and safety of the public or the environment. And when they do bring charges, they’re generally doing so with good reason.
Prosecutors are laughing. Defense lawyers are shaking their heads in disgusted amazement. This is sheer, utter nonsense, as we are only too aware. Proof of intent is achieved in tens of thousands of trials every year, with no one breaking a sweat. It’s remarkably easy, proving the fact of conduct and applying the concept that a defendant intends the natural consequences of his actions. Done. Proven. Jury, what’s your verdict?
The claim that it will “create endless litigation,” that it’s “too hard for prosecutors,” is sheer fantasy, but one that the editors press in the expectation that readers will apply the lessons of law gleaned watching television to their politics.
But the most glaring failure of this editorial is that it’s wrong in practice. Large corporations have in-house compliance departments, that are, in fact, fully versed in regulatory law. They do “know” what they can’t do, because they have a gaggle of lawyers to tell them, to watch over them, to create systems to assure compliance with federal law. The benefit of this law to large corporations, the hated Koch Brothers, will be minimal, if any.
Individuals and mom and pop shops, on the other hand, get burned by strict liability crimes because they lack the gazillion dollar legal staffs to watch over their every move. Are they not sufficiently marginalized to warrant the Times’ concern? Not if there is any chance, any chance at all, that this law may benefit a large corporation as well. So they sold the individual down the river lest a hated entity also benefit.