The Wall Street Journal has a powerful illustration today (subscription required) of the problem of overcriminalization of federal law and the related problem of strict liability crimes. It tells the story of Lawrence Lewis, a maintenance engineer at a military retirement home in D.C., who pled guilty to misdemeanor violations of the Clean Water Act and its implementing regulations — all for discharging a backed-up sewer line into a city storm drain to prevent flooding in an area on the property where, according to the story, the sickest residents lived. Lewis mistakenly thought the storm drain emptied into the D.C. sewer system, when in fact it emptied into Rock Creek, a tributary of the Potomac River.
Since the government is not required to prove guilty intent (mens rea) as part of its case for this regulatory violation, Lewis’s good faith was no defense to his “crime.” (The government’s own pleadings in his case admitted that Lewis did not knowingly dump waste into the creek). So, like many faced with the weight of a federal prosecution, he decided that taking a plea was the better course.
After a fine and probation, Lewis now has a criminal record for the first time in his 60 years (an assault arrest in his youth did not result in a conviction). He summed it up best in describing his incredulousness at being booked from such an insignificant and unintended federal crime: “Imagine what I looked like. ‘What you in for? Backed up toilets.’”
Ah yes, "strict liability"; another post-Constitutional legal concept that would likely make the Founders weep.
Is it a coincidence that at about the same time that strict scrutiny appeared in American jurisprudence so did the opposition to jury nullification?
I don't care what kind of jury instruction I'm given, I know I wouldn't vote to convict any man of plumbing crime. Ever.
Reply to this commentLinkReport AbuseActually, in the founding generations, strict liability was more common than it is today.
JUST before their time is when the British courts made the switch in civil courts away from strict liability for all torts and toward a standard of "negligence". Negligence was a relatively new standard when our founders were forging our nation.
And in criminal law, there were far more strict liability crimes.
"Tortious interference with contract" -- both a civil tort, and a crime -- used to apply to someone who had physical relations with a married person. The "paramour" was liable for interfering with the marriage. It didn't matter if the paramour didn't know of the marriage.
There is one example where the the law was better in the olden days.
Reply to this commentLinkReport AbuseHmm. I wasn't aware of the marriage example, and I'll cede that's interesting.
It was my understanding that in federal law, the concept or application of strict scrutiny didn't show up in case law until (roughly) the turn of the last century.
Reply to this commentLinkReport AbuseCareful.
"Strict scrutiny" is a term of art that applies to the level of second-guessing the courts will engage in when dealing with a statute that treats different groups of citizens differently. There is "rational basis"; "intermediate review" and "strict scrutiny".
Your time frame is right -- for "strict scrutiny".
That is altogether different than what we have here.
Here, we have a LEGISLATIVE (sorry, I'm bad with html functions to bold or italicize) enactment that expressly calls for a stated level of intent as an element of a crime, namely, no intent at all.
Given that the panoply of statutory federal crime was so sparse at our founding, I'm not sure when Congress started drafting strict liability statutes.
It probably was a trend that mirrors the time frame in which such laws were beginning to turn up at the state level.
But, the case law on that would simply track the statutes. "Strict Liability" for proving a crime was committed is a legislative act, not a judicial one.
Reply to this commentLinkReport AbuseMany years ago I took a class on the economic analysis of the law. It was too long ago for me to be certain and I have disposed of texts, but I thought that the earliest appearance of idea of negligence was much earlier.
IN fact, I thought that English common law had recognized the ideas of contributory negligence and last clear avoider before we declared independence. I wish I still had that text since me included cases from the time these concepts appeared in the law.
Probably just a faulty memory on my part. It was 20+ years ago.
Reply to this commentLinkReport AbuseThe problem here is not the law. The problem is that some prosecutor is too stupid to comprehend the situation in its entirety.
The law was clearly not intended to catch this kind of stuff. The guy who made the decision to move ahead with this should be repreimanded, if not asked to find employment elsewhere.
There's a name on the pleadings. Name the guy.
Reply to this commentLinkReport AbuseNo, MikeB the problem here is also the law.
Anytime the law allows conviction for crimes committed by accident by good faith actors you've taken a huge step towards totalitarianism.
That some prosecutor was a willing agent is problematic, but that the law allows such a willing agent to act within the law is a deeper one.
Reply to this commentLinkReport AbuseSpeeding.
Reply to this commentLinkReport AbuseSpeeding is not a strict liability crime.
If you can show you did not intend to be going at your clocked rate of motion, you may be acquitted.
You must have the requisite intent to be traveling over the speed limit.
So, bad example.
(I once got off for speeding because I was in a rental car at the time, and I claimed -- honestly -- that I was not yet sufficiently acclimated to the accelerator's sensitivity, and ended up going -- for only a few seconds -- faster than I ever intended.)
Do us all a favor: Try slowing down.
Reply to this commentLinkReport AbuseSo, your solution is that laws should be enforced arbitrarily? I guess that makes sense in your world. It also gives prosecutors huge discretion to, how did your leader put it, "reward our friends and punish our enemies?"
A Government of men, not of laws, in effect.
I would prefer stupid laws not be written, and the body of law be limited to the minimum necessary to preserve freedom, property and provide a reasonable amount of security.
Reply to this commentLinkReport AbuseHis name? Barack Hussein Obama.
Obama appointed an AG and a USA. They both have direct supervisory control over the AUSA that filed these charges - and that's assuming the USA didn't file the charges himself.
If you want prosecutors who exercise better prosecutorial discretion (you know, the thing that gave them the right to move to dismiss the default judgement against the New Black Panthers voter intimidation case), then vote Obama out of office.
Reply to this commentLinkReport AbuseUnfortunately, voting BO out of office won't make a difference. We had just as many ridiculous federal prosecutions under Bush/Ashcroft as we do under Obama/Holder, and we'll have just as many under the next guy.
Reply to this commentLinkReport AbuseThe problem is that the law has become so complex that the only way to make it functional is to give the prosecutor almost unlimited discretion in regards to what he feels like prosecuting, and what he doesn't.
Reply to this commentLinkReport AbuseExactly. Overly-complex and overly-stupid laws turn all of us into criminals and put us in fear of the state. This should not be in a free society.
Reply to this commentLinkReport AbuseToo stupid?
Why, that prosecutor has a law degree. Maybe from a elite university. Maybe even from Harvard Law. How could he be “too stupid to comprehend the situation in its entirety?”
The real question is: Does the prosecutor know how to un-stop a toilet? Probably not.
The moral of this story is that when the “elite” attempt to micromanage our lives we end up with both toilets and a legal system that are full of it.
Reply to this commentLinkReport AbuseHaving gotten my dig in about the elite lawyer being stupid, I now must defend MikeB. I think he is correct.
Suppose, that the case was a couple 10 year old girls getting their lemonade stand shut down by an over-zealous official and a conservative poster slammed the lack of judgment on the part of the official. If it even got a response it would probably be agreement. But this was MikeB, so we must take exception. This is more about the poster than the post.
Yes, MarkW, the laws are too complex because we live in a complex society and then we try to write the laws to account for every circumstance. But that’s a fools errand. As technology changes we would keep having to change the laws and they would balloon up even larger than they are now; maybe even to Michael Moore size. Ultimately we have to rely on people’s judgment regarding what to prosecute and what not. When we remove discretion from the equation, we end up with what we have now, kids being changed with a sexual offense for kicking a bully in the balls, kids expelled for bring a butter knife or aspirin to school. What we need is better judgment and that is what Mikey is saying.
Yes, Gregory if Yardale. You are correct. We should have a government of laws, not men. But we still need good men to make sure it stays that way and those good men will need to exercise their judgment. Hopefully, if government officials are “rewarding their friends and punishing their enemies” the voters will be aware and will throw the bums out and there will be enough prosecutors with the courage and integrity to charge them with corruption.
But I don’t see how you ever escape the need for a government of good men of both integrity and good judgement.
Reply to this commentLinkReport AbuseOr like convicting BP for failing to change the dead battery on the Deepwater Horizon's blowout preventer?
Reply to this commentLinkReport AbuseMurder is a more serious crime than what this guy did, so why don't we just remove intent from criminal law as well. Ancient China did well by that system. In the Ming Code it was simple: Kill someone, motive doesn't matter, you just committed a capital crime and were locked up until death or transport.
Of course injustice will occur, but why only impose it on regulatory crime and not the violent kimd?
Reply to this commentLinkReport Abuse"Murder is a more serious crime than what this guy did, so why don't we just remove intent from criminal law as well"
Well, we have. In fact, this guy was found guilty of a federal criminal crime. This isn't a civil conviction in federal court, but a criminal conviction.
There are instances where mens rea isn't necessary, and that's a good thing: Manslaughter, 2nd Degree Murder, for example. Here, perhaps someone is acting recklessly and someone died, or someone unintentionally killed someone else during the commision of another crime. Technically, these are both crimes that don't require intent, and for a lot of reasons, that's fine.
This is something entirely different. This guy wasn't acting imprudently and he certainly wasn't acting negligently. Instead, he made - by any measure - a sound, rational and reasonable decision that just so happens to violate an obscure environmental law - a law that has criminal implications. Under "strict scrutiny", the fact that he did the "right" thing doesn't matter and that's the problem with strict scrutiny.
Reply to this commentLinkReport Abuse2nd degree murder and manslaughter both involve intent, centered on intent to undertake reckless behavior.
And, a reasonable person would calculate that severe harm could come from that level of recklessness.
It's grayer with manslaughter, but both involve some level of mens rea.
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