Supporters of Hillary Clinton should have a new appreciation for the legal concept of mens rea — literally, "defendant's mind" — because it looks like it will save her from federal prosecution for using a personal email server as secretary of state. In recommending that the Justice Department not bring charges against Clinton, FBI Director James Comey distinguished her "extremely careless" handling of "very sensitive, highly classified information" from previous cases involving "intentional and willful mishandling."
Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat.
The first two of these incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution. All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law — a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.
The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. The fact that no one knows the precise numbers is itself a scandal, compounded by the fact that many of these provisions include minimal or no mens rea requirements, which specify the mental state required for conviction.
The upshot is that innocent acts, honest mistakes and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That's a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House.
Yet Senate Democrats dismiss the proposed changes, which would add culpability requirements to statutes that do not address the issue, as "corporate protection." Their chief complaint is that requiring the government to prove a defendant knew he was breaking the law will make it harder to convict people.
No kidding. The same could be said of many safeguards widely supported by civil libertarians, including the presumption of innocence, the requirement of proof beyond a reasonable doubt, and the ban on double jeopardy.
No doubt guilty people, including violent criminals, escape conviction because of these rules. Likewise, if Congress beefed up federal mens rea requirements, some white-collar malefactors probably would escape criminal punishment as a result. But that prospect should not deter Congress from doing what's right.
Harvey Silverglate, a leading critic of overcriminalization, has little patience with opponents of mens rea reform. "They're saying, 'It would be a terrible thing, because the people we don't like — corporate executives — they will be able to get off by arguing that there's absolutely no criminal intent on their part," Silverglate told Reason TV. "So you want absolute criminal liability for people you don't like. However, when they come at you, suddenly you say, 'Well, I didn't intend to break the law.'"
That defense is deeply rooted in our moral intuitions and legal traditions. As the Supreme Court observed in 1952, "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
To impose criminal penalties on people for inadvertent violations of the law is plainly unjust. That the guilty will sometimes benefit from this principle is no excuse for denying its protection to the innocent.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.