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Will Overreach Kill Mens Rea Reform?

A variety of people on both sides of the political aisle have been pushing for reform on the mental states required for a person to be guilty of a federal criminal offense.  In federal law, more than in most states, the traditional requirement that a crime be defined as a combination of a guilty mind with a guilty act has been watered down as the administrative state has expanded.  Former Attorney General Ed Meese, a longtime friend and advisor to CJLF, has testified on this subject before the Senate Judiciary Committee.  Congressman John Conyers, senior Democrat on the House Judiciary Committee, also supports mens rea reform.

But it is not enough to be in favor of "reform" in the abstract.  Reform must be drafted into legislation, and the devil is in the details.  Searching for papers and testimony of reform supporters, I have found a lot about reform in general and very little supporting the specific language of the proposals now before Congress.

The bills as drafted seem to me to be classic cases of overreach -- the proverbial "bridge too far" resulting in failure of the mission.  The opponents have valid criticisms, ammunition handed to them by the drafters' overreach.
The Supreme Court's most recent foray into mens rea was a year ago in the Facebook threats case, Elonis v. United States.  In that case, the Court analyzed the mens rea requirement of an old statute using the Model Penal Code's hierarchy of culpable mental states.  The MPC seems like a good place to start.

MPC §2.02 defines four culpable mental states for wrongful acts:  purposely, knowingly, recklessly, and negligently.  Rather than quote the definitions, let me give examples of homicides:

1.  A shoots B between the eyes because he wants B dead.  A has killed B purposely.

2.  C hijacks D's car, leaving him stranded on a remote road in a blizzard with no food, shelter, or warm clothing.  D is nearly certain to die in these circumstances, known to C, and he does die, although C really doesn't care if he lives or dies.  He just wants the car.  C has killed D knowingly.

3.  E, driving down a city street during business hours, shoots out the window of an office building because he thinks it's cool to shoot out windows.  The bullet is not certain or nearly so to strike a person or to cause a fatal wound if it does, but it does in fact hit and kill F.  E has killed F recklessly.

4.  G, driving while yakking on his cell phone, doesn't notice a pedestrian in the crosswalk and hit and kills H.  G has killed H negligently.

Model Penal Code §2.02(3) provides a default mens rea standard:  "When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto."  Note that "recklessly" is in the list but "negligently" is not.

This standard seems eminently correct to me.  For most wrongful acts, the actor's mental state should rise at least to the level of recklessness before we consider the case to be a criminal one.  For negligence, in most cases, we should leave the matter to civil tort law or to some kind of administrative penalty.  (Homicide is an exception due to the extreme consequences.  In most states, G in the example above would be guilty of some degree of manslaughter.  A, C, and E are guilty of murder.)

The Elonis case illustrates why inclusion of recklessness is necessary.  Justice Alito, on pages 6-7 of his concurring opinion, quoted some of the posts Elonis made on Facebook after breaking up with his wife:

Imagine the effect on Elonis's estranged wife when she read this: "'If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the backseat, dropped you off in Toad Creek and made it look like a rape and murder.'" 730 F. 3d 321, 324 (CA3 2013). Or this: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Ibid. Or this: "Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?" Id., at 325.
Surely the criminal law must be able to reach terrorizing threats such as this.  Surely it must not be an excuse for the defendant to say he was only imitating his favorite rap "artist" and did not know his posts would be taken as threats.  A decent society's response must be that we don't give a damn whether he knew or not, and we don't have to get inside his head to prove that he did.  The posts on their face demonstrate recklessness at a minimum, and that is enough to punish this despicable behavior.

Yet neither the House bill nor the Senate bill includes recklessness in its default mens rea provision.  The Senate bill (S. 2298) requires "willfully" and the House bill (H.R. 4002) requires "knowing."  Why not include recklessness?  I have not found any explanation.

Is there a counter-example to show why the bills omit the recklessness mental state?  Is there a case where a person was convicted under a recklessness standard when he should have been considered innocent?  I haven't seen one from the mens rea reform proponents.

One type of element common in federal criminal statutes justifiably has no mens rea.  This is the "jurisdictional" provision, generally an effect on interstate commerce or commission in a place of federal jurisdiction.  For example, Cary Stayner murdered four people, one in a national park for which he was prosecuted by the United States and three outside the park for which he was prosecuted by the State of California.  An element of 18 U.S.C. §1111 is that the murder be committed "within the special maritime and territorial jurisdiction of the United States."  Otherwise, the basic definition of murder (without getting into degrees) is "unlawful killing of a human being with malice aforethought," nearly identical to California Penal Code §187(a). 

Should Stayner have gotten off for the park murder if the prosecution had been unable to prove beyond a reasonable doubt that he knew he was inside the park?  No.  Any default mens rea requirement should expressly exclude jurisdictional elements.

Another troubling and potentially dangerous provision in the House bill is a requirement that the defendant know that his conduct is illegal.  As the Elonis Court notes on page 10, that is not generally the law.  Staples v. United States (1994), a major precedent on mens rea, provides a useful example.  In that case, the law required that fully automatic guns be registered but semiautomatics need not.  The defendant's AR-15 had been built as a semiautomatic but modified to be fully automatic.  The government needed to prove that the defendant knew his gun had been modified.  Nothing in the opinion requires the government to prove that he knew full automatics are required to be registered.

What would happen if the law did require such proof?  How could you prove the defendant's knowledge?  He has an absolute privilege not to testify.  How often can the government find a witness willing and able to testify to the defendant's knowledge of the law?

The feds put some very bad gangsters away on weapons charges when witnesses to the other crimes they have committed are not available (e.g., deceased or afraid of becoming deceased).  The potentially crippling effect on such prosecutions of adding a very difficult to prove element of the defendant's knowledge of the law could have grave consequences for the future victims of gangsters who should have been put away.

I have been told that the primary concern prompting this provision lies with acts prohibited by regulation rather than statute.  If so, the remedy should be so limited.  I am not terribly concerned with hindering prosecution of acts made criminal only by regulation.  I don't think administrative agencies should have the authority to create crimes at all.  (I'm not including the military here.  Military justice is different.)  A requirement that regulatory crimes can be prosecuted only if the defendant was at least negligent in not knowing the law would be much less dangerous.  People engaged in industries they know to be highly regulated, such as food production or waste disposal, have a duty to know the legal limits of their activities.  If violation of a particular rule really needs to be made a crime without such a showing, Congress can go ahead and codify it.

In summary, then, I believe that at least three changes need to be made to the mens rea reform bills:

1.  Adopt the Model Penal Code default mens rea rule of purposely, knowingly, or recklessly.

2.  Exclude elements that go to jurisdiction rather than wrongfulness of the act from the default mens rea provision.

3.  Either scrap the "know it was illegal" provision or limit it to regulatory offenses and make it an affirmative defense with the burden of proof on the defendant.

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