Tuesday, September 27, 2011

WSJ.com - As Federal Crime List Grows, Threshold of Guilt Declines

This is not the first I’ve read on this topic, and the more I learn about this issue the more concerned I get.  Criminal intent (or extreme negligence in some cases) should be a given for those serving jail time, but for Federal law it often is not. 


WSJ.com - As Federal Crime List Grows, Threshold of Guilt Declines


For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.

Requiring the government to prove a willful violation is "a big protection for all of us."  Generally speaking in criminal law willful means "you have the specific intent to violate the law."

Lawmakers on both sides of the aisle worry about the weakening of mens rea.  In a 2009 Judiciary subcommittee hearing on the growth of federal criminal law, Rep. Bobby Scott (D., Va.)., said that mens rea had long served "an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction."

But when legislators "criminalize everything under the sun," Ms. Coughlin says, it's unrealistic to expect citizens to be fully informed about the penal code." With reduced intent requirements "suddenly it opens a whole lot of people to being potential violators."

The erosion of mens rea is partly due to the "hit or miss" way American legislation gets written today… Some lawmakers simply omit criminal-intent provisions when they draft legislation. "Lots of members don't think about it, not out of a malevolent motive," he says. "They just don't think about it."





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