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December 15, 2008

A timely(?) call for greater attention to mens rea in the criminal law

Via e-mail I received a link to this interesting "Legal Opinion Letter" from the folks at the Washington Legal Foundation.  The short letter is titled "Mens ReaRequirement: A Critical Casualty Of Overcriminalization," and it is mostly critical of the broad definition of white-collar offenses that enable criminal prosecutions of corporate officials based on seemingly innocuous public statements.  But, especially as my 1L Crim Law students gear up for my exam, I found the letter's final paragraph reminded me of famous passage in the Model Penal Code commentaries:

By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted.  There are many things a liberal government may do to improve social welfare.  Government may properly ask individual citizens to make significant sacrifices for the common good.  However, there are also many things a liberal government may not do.  Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them.  Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault.  Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.

Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends.  What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability. 

Because of various modern practical challenges in using administrative law or tort law to regulate certain risky behaviors, I can see a justification for legislatures sometimes passing laws that may ultimately criminalize innocent or merely negligent behavior.  But I have a hard time with extreme prison terms being in the mix without requirements of serious culpability.  Any and all criminal provisions that threaten severe prison terms without requiring proof of significant blameworthiness necessarily gives prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices.

December 15, 2008 at 10:06 AM | Permalink


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Tracked on Dec 15, 2008 8:06:38 PM


One aspect of this issue is the prosecution's ability to obtain a "willful blindness" (or 'ostrich' with his head in the sand) jury charge in white collar cases. This enables a jury to convict without any meaningful 'mens rea' requirement, for little more than negligent conduct, which usually comes as a huge surprise to business executives, whose counsel in a civil context may have previously explained the corporate "business judgment rule" to them. In the face of such a jury charge, many business people end up pleading guilty to charges they don't really think they are guilty of, just to get their 3 points down for "acceptance fo responsibility", and a shorter sentence. If one takes the Feds to trial (96% of Federal defendants plead guilty, and the Feds win 3 out of 4 trials on the other 4%) and lose, they will push hard for the maximum possible sentence as retribution for exercising one's Constitutional right to trial by jury. I think this is wrong, and certainly not what our Founding Fathers intended when they draftedd the Bill of Rights. On the other hand, if all defendants exercised there right to a jury trial, the Feds wouldn't have the prosecutorial resources to send nearly as many people to prison as they do now, would they? Isn't this why the U.S. incarcerates more of its adult population (both in absolute terms and per 100,000 population) than any other country on earth? Eliminating the "willful blindness" jury instruction might be more equitable and level out the playng filed a little in marginal white collar prosecutions particularly. Jim Gormley

Posted by: Jim Gormley | Dec 15, 2008 11:32:46 AM

What about a mens rea requirement for sentencing enhancements that are not considered elements of the crime? SCOTUS has granted cert. (in my case) and the issue is the 10 year mandatory minimum for a firearm discharge when the discharge was accidental. In other words, no intent to discharge -- no mens rea. I would love everyone's comments.

Posted by: scott forster | Dec 15, 2008 12:01:44 PM

"Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends. What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability."

I don't see the irony here. In fact, I agree with your statement completely. The biggest problem is not the threshold issues, it's the proportionality issues. Unlike Jim, I actually think that "willful blindness" is an important part of corporate criminal prosecutions and is used way too infrequently. There is a real difference between the application of the business rule and willful blindness; that difference is goodwill, which is mens rea in its most basic form. I concede that in practice that distinction is sometimes difficult to draw (ie, the evidence is ambiguous) but that is an issue for the prosecutor's discretion in the first instance and the jury in the second.

Having said that, goodwill cuts both ways. And any prosecutor who prosecutes more harshly because someone exercises their rights should be ashamed of themselves because they are not exhibiting goodwill either.

Posted by: Daniel | Dec 15, 2008 2:05:05 PM

In Michigan, we have an offense called negligent homicide. It's a 2-year misdemeanor, but a felony for habitual-offender and other purposes. It involves the use of a motor vehicle. In a typical case where a driver hits a pedestrian, or collides with another car, the neglgence of the decedent is usually not even admissible, let alone available as a defense. Yet, in a civil suit arising from the same facts, if the decedent was more than 50 percent at fault, the decedent's estate cannot recover any monetary damages. I find it offensive that someone can be sent to prison for two years on facts that aren't sufficient to make that person pay even one cent in damages. That kind of criminality is absurd.

Posted by: Greg Jones | Dec 15, 2008 3:14:17 PM

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