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Overcriminalization and Mens Rea

The Wall Street Journal continues its coverage on the problems of overcriminalization and overfederalization.  Gary Fields and John Emshwiller have this article today, focusing on the mens rea problem, the state of mind required before a forbidden act is considered a crime.  They highlight the plight of Lawrence Lewis, who received a criminal conviction for diverting a backed-up sewage system to a drain he believed, mistakenly, led to the city's sewage treatment system.

The mens rea problem is also discussed in CJLF's recent brief in the Stolen Valor Act case.  We urge the Court, among other things, to interpret the statute as applying only to knowing falsehoods, and we quote the classic opinion by Justice Jackson:

"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.9 As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Morissette v. United States, 342 U. S. 246, 251-252 (1952).

Footnote 9 quotes Justice Holmes, "Even a dog distinguishes between being stumbled over and being kicked."

The mens rea element is important for two reasons.  The first, as the article notes, is to avoid punishing and stigmatizing as criminals people such as Mr. Lewis who simply made a mistake.  The second, and also important, is to avoid diluting the moral force of the criminal law.  The stigma that rightly attaches to being a criminal needs to be reserved for people who make a choice to do evil.  If it is not so reserved, it is in danger of losing that force.


No fair-minded person doubts that, in order for the law to brand someone a criminal, the brandee must have acted with bad intent. The problem is that the typical, and typically phony, defense in white collar cases is that the defendant made a "bad business judgment" and/or practiced "sloppy bookkeeping."

Prosecutors generally are not monsters, and there's plenty of business to be had out there without having to indict white collar types who actually are guilty of nothing more than a mistake. My experience as a prosecutor is that "mistakes" generally do not go on for years, are generally not covered over with a byzantine paper (or, now, computer) trail, and generally do not wind up with the "mistaken" and "error-prone" businessman pocketing a few million from his "sloppiness" that winds up going into his oceanfront mansion is Aruba.

I concur with all said. The most baleful issue for the non-litigators among us—or perhaps for me solely--is the questionable *diminishing of culpability* by attorneys, judges, and juries due to "insanity", ambien, post-partum depression, pre-menstrual syndrome, testosterone rage, immaturity, unintelligence, et al.

I employ "et al" because I find no mitigating element to be legitimate.

[For an instance respecting "mens rea", to my simple mind, anyone mechanically able to *murder* is fully culpable, being that intent is already required to convict (malice aforethought). Otherwise the act is manslaughter (reckless, negligent, or purely accidental).]

Did I say "questionable"? I meant wrongful, unquestionably.


How right you are. The entire world has turned into One Big Excuse. The expectation that people should behave with normal honesty and truthfulness has just vanished. This is true throughout the culture, but is especially true in the criminal courtrooms of this country.

Sadly, individual responsibility or facing the consequences of your actions has become passe.

Indeed, we are 8 years closer to the Gomorrah envisioned by Bork in 2003.

Clarification, Bork penned his book in 1996.

We are even close to Gomorrah than I thought.

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