Bench Memos

Dueling Editorials on Mens Rea Reform

After a high-ranking Justice Department appointee came out against reforming criminal intent requirements last week, claiming that a default mens rea requirement would “provide cover” for executives, the editorial pages of the Wall Street Journal and the New York Times both weighed in.

The Wall Street Journal commended Congress for “a rare bipartisan moment” and lauded the House Judiciary Committee’s bill to reform criminal intent requirements:

[Guilty mind requirements have] increasingly been dishonored thanks to an expanding criminal code and federal regulations that carry criminal penalties. That’s how an 11-year-old girl in Virginia saved a woodpecker from a cat and was fined for transporting a protected species. Or how Indianapolis 500 champion Bobby Unser was charged with a federal crime for riding a snowmobile in a national wilderness after he lost his way in a snowstorm. Earlier this year [in Yates v. United States] the Supreme Court had to exonerate a fisherman who threw back some undersized grouper he had improperly caught and was charged with violating the anti-shredding provision of the 2002 Sarbanes-Oxley Act, a law relating to financial markets.

The New York Times, on the other hand, thinks it’s great that people and corporations can be criminally prosecuted for accidents:

If the new provision becomes law, corporate actors could avoid prosecution by claiming, as they commonly do now, that they didn’t know what they were doing was illegal. And corporations that now go to great lengths to train employees on their legal responsibilities would have far less incentive to do so. . . . If anything, it is still too hard for prosecutors to go after corporate bad actors who endanger the health and safety of the public or the environment.

Well, no, corporations wouldn’t be able to avoid prosecution by merely claiming ignorance. It’s just that if the government decided to prosecute, it would need to prove that the violation was knowing.

The Times also relies on an academic study of environmental prosecutions that, it thinks, supports this argument:

A University of Michigan study examining almost 700 prosecutions brought under federal environmental laws between 2005 and 2010 found that virtually all involved one or more of the following [aggravating factors]: repeat violations of the law, deceptive or misleading conduct, a refusal to follow regulations at all, or actions that caused significant harm to the environment or to public health.

You can read the law review article for yourself. But most of the aggravating factors identified by the study meet the standard for “knowing” violations of law as defined by the House Judiciary mens rea bill. Repeat violations would be evidence of “knowing” violations of law, as would be deceitful or misleading conduct and outright refusal to follow regulations. If nearly all environmental prosecutions involve evidence of one of these aggravating factors through the exercise of prosecutorial discretion, why would a default mens rea provision destroy environmental prosecutions?

The only factors cited by the author that wouldn’t satisfy a “knowing” mens rea requirement are those involving “significant environmental harm or public health effects.” That’s a problem because those aggravating factors aren’t a substitute for the moral guilt necessary to justify criminal punishment. As the author argues (emphasis added),

there is risk of prosecutorial overreaching in the context of significant harm . . . Outrage over pollution, serious injuries, or deaths can overwhelm the determination of whether the underlying conduct meets evidentiary burdens and whether the defendant acted with sufficient culpability to warrant criminal prosecution. Indeed, far from ensuring that defendants are morally culpable, harm cases could be brought in circumstances where the conduct may not be intentional but is charged criminally because of the resulting harm.

Well said. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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