Can people be committed for crimes they didn't even know existed?Reuters
I've practiced law for almost 38 years, with most of this time devoted to criminal law, either as a federal prosecutor or a white collar defense attorney. Through these years I've witnessed certain trends within criminal law that are both disturbing and seemingly inexorable. Two in particular should give us the most pause: the erosion of mens rea, and the perversion of respondeat superior.
The bedrock principle of Anglo-American criminal law has always been that people must know they are doing something wrong before they can be found guilty and branded a criminal. This legal concept is known as mens rea, Latin for "guilty mind." The reason for this fundamental legal requirement is obvious: violations of criminal laws are serious, and before we put a fellow citizen in jail, we want to make certain that he is actually a bad person, is morally culpable for his crime, and that he deserves to go to jail. Indeed, the Supreme Court's recent decision overturning mandatory life sentences for juveniles partially reflects this idea. Meting out harsh punishment to those who don't even truly understand the import of their actions offends our very notion of justice.
There are of course worthwhile exceptions to this principle (statutory rape is one), and we certainly don't want to reward those wrongdoers whose minds are "innocent" merely because they are willfully ignorant of what the law requires. But generally speaking, we want to make certain that people not only in fact did what they are accused of doing but also that they did so with a guilty mind -- that they actually intended to do something wrong.
Today, however, we are moving away from this fair and common-sense principle in our legal system. Increasingly, federal criminal law, and especially that related to business conduct, has what is called "weak mens rea," or even no mens rea requirement at all. In the 2010 Dodd-Frank legislation, for instance, many of the new criminal provisions have no requirement of criminal intent, meaning that morally innocent people can (and will) receive harsh criminal penalties for otherwise innocent mistakes. Perhaps the most famous example of this is the provision relating to the disclosure of financial industry risk determinations (e.g., stress tests) made by the U.S. Treasury Department. Under Dodd-Frank, even employees who accidentally disclose a certain type of risk determination -- even those who have no idea what they're disclosing -- could face five years in prison.
Add to this the fact that federal criminal law is massive (there are currently an estimated 4,500 federal statutory crimes, as well as thousands of regulations which carry criminal penalties) and thus unknowable by any one person, and the resulting ambiguity in the criminal justice system threatens to undermine its own integrity. This ambiguity also causes business people to hesitate to take significant steps without first lining up time-consuming and expensive legal and expert review, advice, and opinions -- creating a huge drain on productivity and innovation.
To combat this problem, we should begin a systematic review of all criminal statutes that contain an intent requirement to determine if the level of intent required is sufficient. Senator Rand Paul recently introduced an amendment to an FDA funding bill that would mandate stronger mens rea requirements for violations of crimes under the FDA's jurisdiction; additional legislative actions like these may be worth pursuing. There are potentially hundreds of instances in which weak intent requirements may need to be replaced with a more strict intent specification that would require the government to prove a willful violation of the statute before a person can be convicted.
It is time to bring fundamental fairness and common sense back to our criminal laws -- especially those that relate to business people. Doing so won't be giving them a break or letting them off easy (fines should always be on the table for even innocent mistakes). Rather, we will be extending to them the basic protection of the criminal justice system that is afforded to all citizens: the commitment to punishing only that behavior which is morally wrong.