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The Mental Element of Crimes, Express and Implied

My friend John Malcolm of the Heritage Foundation has this article at the Daily Signal criticizing the Back the Blue Act of 2017, which would make it a federal offense to kill, attempt to kill, or conspire to kill a federal judge, federal law enforcement officer, or "federally funded public safety officer."  The latter is a public safety officer of a state or local government agency that receives federal funds.  Putting aside the federalism question for the moment, John's criticism is that the bill does not contain an express mental state (mens rea) requirement for the "kill" prong.

Because the bill does not require that a defendant intend to kill or even know his "victim" was a "federally funded public safety officer," its severe penalties would apply if someone accidentally crashed into an officer with a bicycle, motorcycle, or car, or unknowingly served him contaminated food, and the officer died.

It would be better drafting to specify the required mental state in the text, but I do not agree with John that the omission transforms the offense into one of strict liability (with no mental state required) or even one where negligence will do.

Morissette v. United States (1952) is a classic opinion by the esteemed Justice Robert Jackson.  Shortly after World War II, Morissette salvaged some shell casings from land that had been used as a practice range during the war.  (Today we would say he "recycled" them.)  He thought, reasonably enough, that the casings were abandoned property and free for the picking.

Despite the lack of an express mens rea in the text, the Court found that Congress had not intended to create a strict liability crime.  "We hold that mere omission from ยง 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced."  I do not find the omission any more convincing in this bill.

Of course, Congress should specify the mental element whenever it creates a new crime.  Further, it should enact a statutory default mens rea rule similar to Model Penal Code section 2.02(3).  See this post for details.  Even if it does not do either of those things, though, I find the idea that this statute would criminalize mere accidents to be a bit far-fetched.

The correct objection to the bill, in my mind, is federalism.  Murder is generally a state, not federal, offense, and it should remain so when the victim is a state or local peace officer.  What the federal government needs to do is get out of the way.  The U.S. Department of Justice can and should implement the moribund habeas corpus "fast track."  It does not need to prosecute the murders of local police officers as a federal offense.

Of course, the federal government can and should prosecute the murder of federal officers related to the performance of their duty.  That is "necessary and proper."


The federalism objection is solid. The mens rea objection isn't, and not just because of Morissette.

John Malcolm is likewise a friend of mine and a good man, in my opinion. But his analysis here is incorrect. I can tell you, having been a federal prosecutor for a good chuck of my career, that the actual prospect that a person would get charged if he "accidentally crashed into an officer with a bicycle, motorcycle, or car, or unknowingly served him contaminated food" is zero and zero.

I disagree. It matters whether someone intends to kill or engages in reckless behavior that results in death. Mental states inform moral blameworthiness. This speaks right to the issue raised in Sanford Kadish's seminal article "The Decline of Innocence."

Additionally, the law should speak for what it proscribes. If the crime sought to be punished is intentional murder of a LEO, it ought to say so. If we want people to respect the law, the law should be clear.

I see your point (and Kent's). The only thing I'm pointing out here is that the prosecution John Malcolm purports to fear is never going to happen. It's a ghost.

I would add that respect for law is, in my view, far more deep-seated than parsing the wording of a statute. It's either inbred, or it fails to get inbred, at a very young age, and is first understood as respect for authority (like your parents).

Beyond that, people tend to respect the law when it does what they're paying taxes for it to do, to wit, keep them and their property safe.

I agree with all you have said, Steve. Who/what are you disagreeing with?

For some reason my browser will not allow me to reply to certain comments, only add a comment. I was disagreeing with Bill's comment.

To respond to Bill's second comment, I would agree that respect for the law begins with respect for authority. But I must insist that the law should say what it wants punish precisely. If we're going to put people in prison for a very long time we should insist that the law is plainly clear. The law not only punishes but is a written agreement between the government and the people about what is proscribed and *why* it is. The why matters.

"If we're going to put people in prison for a very long time we should insist that the law is plainly clear."

I guess my point is that we are not, in fact, going to put people in prison for a very long time, or for any time, for the strictly accidental episode John Malcolm uses as his hypothetical. A prosecution like that will happen the day I get drafted into the NBA.

There is one area of law -- the regulatory state -- that DOES use the realistic threat of prison in what I quite agree with you is an illegitimate way. Being precise about mens rea requirements is the kind of criminal justice reform I favor, with all due respect to Sen. Schumer and his caucus.

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