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December 1, 2015
"Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
The title of this post is the title of this new posting at Right on Crime. It gets started this way:
As Congress has begun to consider various reforms to the federal criminal justice system in the last several months — sentencing and re-entry policies in particular — another element of federal law that merits consideration is beginning to receive its due, as well: namely, ensuring that criminal statutes or regulations have adequate mens rea, or criminal intent, requirements.
In yesterday’s edition of the Cato Daily Podcast, Caleb Brown interviewed Robert Alt, President of the Buckeye Institute in Ohio, about the current landscape of state and federal criminal law, where Alt succinctly describes the growing problem: “We’ve noticed over the years, both at the Congressional level and the state level, that more and more crimes are being passed that either have no criminal intent requirement at all — where you can be convicted for mere accidents — or they have inadequate mens rea requirements.”
A long-standing tradition among common law jurisdictions has held that criminal actions generally have two elements: the bad action itself (actus reus), and a guilty state of mind (mens rea). In recent decades, legislatures haven’t had much difficulty passing statutes detailing new crimes, or enabling regulatory agencies to concoct administrative rules that also bear criminal penalties. As Alt explains, an American Bar Association task force found in 1998 that the body of federal criminal law was so cumbersome that a single, “conveniently accessible” repository listing them all didn’t exist. Shortly thereafter, they commissioned a study to generate an inventory, in which case over 3,000 federal criminal statutes were detailed.
In 2007, a similar inventory performed by the Heritage Foundation and others found that the number had jumped to roughly 4,500, and this is to say nothing of federal regulatory offenses; estimates have pegged the Federal Register at approximately 300,000 regulations, though no one knows the exact number as those responsible for finding them eventually stop counting.
What hasn’t occurred with regularity as these new laws or rules are being promulgated is inclusion of the second element of crime: establishing culpable intent on the part of the actor. This has the effect of creating new criminals out of people who had no intention or knowledge of running afoul of the law, and can have adverse, long-term consequences.
December 1, 2015 at 08:41 PM | Permalink
The Supremacy has argued that all crime should become strict liability crime. Mind reading is a supernatural power, in violation of the Establishment Clause. Often, even the criminal does not recall the crime committed in an alcohol memory blackout, and cannot tell you his mental state at the time.
And how do you know that a hunter killing another thinking him a deer is less dangerous than a hunter killing another because the other's wife paid him $10,000? Same act, same outcome, widely different liabilities, based on the mens rea.
The mens rea is a Latin term. Latin itself in the law is a violation of the Establishment Clause, because only the Catholic church uses it. How about some Arabic terms from the Koran? Is that OK? Why is Latin any more OK?
In the 13th Century, death was the sole remedy to crime. So, the mens rea was an advance, as a loophole. The mens rea is plagiarized from the analysis of mortal sin in the Catechism at Section 1857.
The judgment of the mens rea was a supernatural power attributed to God by the medieval church. That judgement would take place after one's death, and it would be about one's soul. Even the medieval church did not believe that man could read minds. Only the lawyer dumbass believes that men can read minds.
On the other hand, all crimes should be shown to cause physical or economic damage, and to an amount much greater than a tort. If a regulation is ever used against a person or entity, the loophole should not involve mind reading. It should involve the truth about government rent seeking. The legislators, prosecutors, and appellate court judges allowing the false law to be enforced must be arrested, tried and executed for their insurrection against the constitution. Seriously, kill the rent seekers. To deter.
Posted by: Supremacy Claus | Dec 2, 2015 5:16:55 AM