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Mens Rea

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And now, for something completely different, the term mens rea appears in the first paragraph of a front-page story in a newspaper not specifically for lawyers.

Gary Fields and John Emshwiller have this story in the WSJ on watering down of the criminal intent requirements in federal criminal laws.  Their lead horror story is a Native Alaskan trapper charged with a crime for selling sea otters.  The sale would have been perfectly legal if the buyer were another Native Alaskan but, unknown to the seller, he was not.

Declining mens rea requirements are compounded by overfederalization and overcriminalization.

The criminal law draws its moral force from a societal consensus on the wrongness of the conduct.  Expanding criminal law beyond inherently wrong acts such as robbery and murder into regulatory matters needs to be done carefully.  As the story illustrates, Congress has been astonishingly sloppy at times.

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions.

"How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

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More important is the issue of race here. Only one race can hunt and sell sea otter? Was that the purpose of the 14th Amendment? And since so-called Native Alaskans, which, are not technically Indian tribes, qualify under the supposed exception for Indians? And since Indians obtained American citizenship since the 1924 Immigration Act, why are Indians treated different from other American citizens? Did not the 1924 Act end the fiction of the Indian tribes as sovereign and alien?

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