December 7, 2015

Mens rea and DOJ opposition to criminal justice reform

By Jonathan Wood Attorney

As you may recall, PLF has moved to intervene in WildEarth Guardians v. DOJ, a case in which environmental groups seek to radically expand the criminal reach of the Endangered Species Act, contrary to its language and common sense. Ultimately, the case seeks to subject anyone who accidentally does anything that, unbeknownst to them, negatively affects a single member of an endangered species or its habitat to substantial criminal fines and imprisonment. This is a preposterous interpretation of the ESA provision making it a crime to “knowingly” violate the statute.

The case is a stark example of a far bigger overcriminalization problem. There are far too many laws, that are too obscure or vague, with inadequate protections for the innocent, carrying criminal penalties, which are often excessive. In fact, no one knows how many federal crimes there are; several groups have tried to count them, but they’ve proven too numerous and difficult to find. On Twitter, @CrimeADay has documented some of the most absurd, but at this rate will be at it for decades before running out.

Recently, there’s been some reason for hope that reform might be on its way. Liberal and libertarian groups have come together to push for sentencing reform, simplification, and requiring mens rea in all federal criminal laws. To achieve this last goal, the reform would require that the government prove that a defendant knew or reasonably should have known that his conduct was illegal.

The prospect of having to meet this higher bar has resulted in backlash from federal prosecutors at the Department of Justice (DOJ). They argue that it will hamstring their ability to prosecute corporations and individuals under consumer protection and environmental laws. It’s important to remember that this is the same DOJ that prosecuted a jilted wife for chemical weapons charges because she tried to poison her husband’s mistress and a fishermen for violating the Enron-inspired anti-shredding law for throwing undersized fish overboard. A recent New York Times editorial argues that reform is unnecessary because prosecutors can be trusted to focus on only the worst offenders.

But as Judge Alex Kozinski has explained, overcriminalization’s reliance on proprietorial discretion is a bug, not a feature:

Under the best circumstances, most targets will be unlucky schmoes who happen to catch the authorities attention or people the prosecutors or the public think are particularly “bad.” At worst, a ubiquitous criminal law becomes a loaded gun in the hands of any malevolent prosecutor or aspiring tyrant

A DOJ spokesperson also criticized the proposal on the grounds that it would reverse the centuries-old presumption that ignorance of the law is no excuse. Although this presumption makes sense when the law at issue is the ban on murder or assault — both of which are obviously wrong. But it doesn’t make sense to apply it to laws that criminalize ordinary acts based on unknown and sometimes difficult to foresee environmental consequences. As James Madison explained in Federalist Paper 62:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…

What to read next