Do you feel guilty? You should. You've surely broken some law this week-probably even deliberately.
Did you take a quick jaywalk across the street? Or perhaps there was another law you knew about but chose to ignore-oh come on, tell me you didn't go over the speed limit at least once in the past week?
On the other hand, perhaps you broke some law you didn't even know was on the books, some law that you had no intent to break, some law that could ruin your life if they decide to prosecute you under…
In these posts, I keep coming back to the issue of legality. I guess it's on everyone's mind these days. I was particularly struck by this article in the Wall Street Journal about how the U.S. is moving away from the idea that the intent to commit a crime and the knowledge that you are actually breaking a law is important.
I cannot urge folks enough to click through to read the story. It begins:For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."
This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.
Spoiler alert: The article will depress you as it lists examples of bad laws or good laws being grossly misapplied. But all the same, I think it should be mandatory reading.
A Heritage Foundation report found that:
Over 57 percent of the (non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006), and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation….
….The explosive growth that federal criminal law has undergone in recent decades should alone be sufficiently troubling to anyone in a free society. When coupled with the disappearance of adequate mens rea requirements, the proliferation of poorly drafted criminal offenses that are vague and overbroad, and the widespread delegation to unelected officials of Congress's authority to criminalize, the expanded federal criminal law becomes a broad template for the misuse and abuse of governmental power.
Interestingly, this report specifically cites the Lacey Act as an example of a poorly written law that almost guarantees the "guilty party" will be actually ignorant of the specific law being broken as it "imposes civil and criminal penalties for violations of any law, treaty, or regulation of the United States or Indian tribal law concerning the taking of fish, wildlife, or plants." (The report was written prior to the 2008 amendment which expanded the regulation to include all international regulations, as well.)
A great deal of our legal system is based on having a combination of "malice, intent, knowledge" when you break a law. Or at least it once was. Now? Not so much.
