New York’s governor, at a recent event, casually admitted to a federal crime. Presented by itself the fact sounds shocking, though upon learning the details people are likely to be a little less bothered. After all, Cuomo was not aware that his action was a crime, and the crime itself — the collection of a bald eagle’s feather while on an outdoor vacation — might easily be understood as an honest mistake.
In our dealings, we generally try to take one another’s intentions into account. Our legal system has historically reflected this principle, but it has eroded considerably — and the effect has made itself known harshly in the lives of many. As a violator of the Bald and Golden Eagle Protection Act, Cuomo could have faced a fine of up to $5,000 and the possibility of a year in prison.
In the common law, that is to say the system of law that evolved in England and is present throughout the English-speaking world, the test for culpability was summed up by a Latin phrase, actus reus non facit reum nisi mens sit rea: “The act is not guilty except when the mind is guilty.” In other words, to be found guilty in court, someone must both commit the crime and intend to do so. This requirement, like much of the common law, guards individual liberty — it protects against arbitrary prosecution for honest mistakes. The concept is usually indicated by the shortened term mens rea, and it has loomed large in debates about the justice system and the rule of law.
Today, intent standards vary by criminal statute and sometimes are missing entirely. Higher levels of mens rea might require the government to prove that the accused did something intentionally, or even that he knew his actions were illegal (overturning the usual rule that ignorance of the law is no excuse). But when there is no intent requirement at all, “strict liability” applies, and someone can be found guilty regardless of what he intended or how innocuous his conduct was.
The erosion of mens rea in the War on Drugs has proven especially dangerous. For instance, there is no intent requirement in Florida’s controlled-substance-possession law, which was upheld by the state’s supreme court in 2012. Justice James Perry, in a dissent, forcefully argued that the law “shatters basic constitutional principles” and makes miscarriages of justice inevitable. He points out that anyone from a traveler who picked up the wrong bag, to someone who rented a car that drugs were left in, to someone on whom drugs were planted would feel the full force of the law despite being innocent by any reasonable standard.
In other cases, like Cuomo’s, people can find themselves in trouble for innocuous conduct — things that they did on purpose, but that no reasonable person would suspect was illegal. In 2016, a man who had found a milk crate on the side of the road and tied it to his bike to use for storage was arrested and jailed for “unlawful possession of a dairy crate,” a crime that can be punished with up to a year of prison. On Valentine’s Day of 2013, a man who released a dozen red balloons as a romantic gesture for his girlfriend was arrested for violating the Florida Air and Water Pollution Control Act, which is punishable by five years in prison. As criminal-defense attorney (and former 30-year ACLU Massachusetts board member) Harvey Silverglate put it, the average American unknowingly commits three felonies on average every day, without knowing it.
Cuomo’s New York is no stranger to laws without appropriate mens rea requirements. Particularly infamous is the state’s 1958 “gravity knife” ban, which targeted combat knives that flick open, but has been reinterpreted today to include virtually any folding pocket knife that locks in place (a safety feature to protect the fingers), because a skilled user like a cop can open it quickly. Thousands of New Yorkers are arrested every year for this offense, even if they are handymen, construction workers, or electricians carrying their tools en route to jobs with no intent of wrongdoing whatsoever — and even if they bought their knives at New York City hardware stores, where they were openly sold until recently. Should the police spot them, they are liable to face years of jail time; prosecutors must show that they knowingly possessed the knife, but not that they realized it was a “gravity knife” or knew that gravity knives are banned. Americans have justifiably mocked the roundups that London police precincts have been showing off online of supposedly dangerous weapons they’ve found, which are usually kitchen and garden tools. New York engages in the same behavior, just without the social-media marketing.
It is a prime example of the type of rule by men, rather than rule by law, that mens rea requirements are meant to address. State legislators from both sides of the aisle have pushed to fix the law, and were supported by an editorial in the New York Times, but Manhattan’s DA came out strongly against it. Cuomo sided with the DA, vetoing the reform two years in a row. This should not surprise anyone, considering that when Governor Cuomo was attorney general, he regularly pursued convictions using statutes without intent requirements. Both the DA and the governor like to present themselves as advocates for the disenfranchised, yet their cherished knife law amounts to a crackdown on the working poor. Responding to the veto, the Legal Aid Society’s Tina Luongo directly invoked the principle of mens rea, stating that “we’re not talking about people who may use a knife in an unlawful way. What we’re talking about is merely walking around possessing that knife.”
Reformers concerned about overcriminalization and mass incarceration have aimed to fix this problem across the board with a simple intent standard for all crimes that do not have one: that the defendant must have knowingly done the action (not necessarily knowing that it is a crime), and further, that “if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.” This language is from 2015’s Criminal Code Improvement Act, but it is in line with arguments that have been made by legal reformers on both right and left, at both the state and federal level. Ohio and Michigan, for instance, have adopted similar legislation for a default intent standard. It’s a simple enough fix, though concerns have been raised about whether it is wise to take a one-size-fits-all approach rather than reforming laws individually and altogether repealing unnecessary ones.
The specifics of the legislation should be debated, but instead, the idea of reform has been dismissed out of hand. When it emerged as a real political possibility at the federal level, an unexpected coalition of opponents emerged, including the Obama administration, Elizabeth Warren, Sheldon Whitehouse, and the ACLU. They proclaimed that mens rea reform would be a blank check for white-collar crimes and environmental violations — but this charge is baseless, according to Norman Reimer of the National Association of Criminal Defense Lawyers, given that federal environmental laws like the Clean Water and Clean Air Acts already have intent requirements. It is surreal to see the very same politicians who worked to give the finance industry hundreds of billions in taxpayer dollars come out against a reform that would help thousands of innocent people who are otherwise being treated like criminals, simply because it might make it harder to charge some white-collar criminals.
I am no fan of Wall Street corruption, but I still hold to the fundamental formulation that “it is better that ten guilty persons escape than one innocent suffer.” The fact that bad behavior by bankers has been rewarded is awful, but it is unacceptable that innocents be condemned in the hope that some revenge for financial crimes might result, particularly when it comes from advocacy groups like the ACLU, which purports to advocate for justice across the board but seems to have abandoned that stance where politically inconvenient. As Silverglate put it, “[The] ACLU should know better. Liberty is indivisible. Equal justice is not achieved by cynically pitting one group of citizens against another. That is how we ended up with by far the largest prison population in the world.”
Cuomo will face no consequences for his accidental crime, but the same cannot be said for thousands of his constituents — in some cases because of his own legislative and legal decisions. His public embarrassment should serve as a wake-up call for the position that ordinary people find themselves in, facing harsh sentences for accidental offenses, without the benefit of the doubt that comes from being powerful and connected. At the very least, I hope that the spectacle of Cuomo’s admission raises the profile of the problem.