Friday, July 12, 2013

The Cautionary Instruction: The ‘Guilty Mind’ disappears from federal prosecutions

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 12, 2013

At a time of historically low rates of crime, the federal prison system is operating at almost 40 percent over capacity. A recent report by the Congressional Research Service found that the federal prison population has grown by almost 790 percent since 1980.

Congress wants to know why federal prisons are bulging at the seams. They have launched an investigation into the proliferation of federal criminal statutes.

Federal lawmakers have been creating on average 55 new “crimes” per year, bringing the total number of federal crimes on the books to more than 5,000, with as many as 300,000 regulatory crimes. Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes.

The problem is known as overcriminalization and it is not just a federal problem. There is no dearth of criminal statutes on the state level. For instance, Texas lawmakers have created over 1,700 criminal offenses.

The problem goes beyond the number of laws -- the way the laws are crafted is a concern for many lawyers and scholars alike.

Boston lawyer Harvey Silvergate, author of Three Felonies a Day: How the Feds Target the Innocent, estimates that the average American now unknowingly commits three felonies a day, thanks to an overabundance of vague laws that render otherwise innocent activity illegal and an inclination on the part of prosecutors to reject the idea that there can’t be a crime without criminal intent.

For examples of outrageous federal prosecutions click here.

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."

"The recent growth of the federal code in all areas of life has brought with it an ever-increasing labyrinth of federal regulations, many of which also impose criminal penalties without a showing of mens rea, or criminal intent," judiciary committee chairman Representative Bob Goodlatte (R-Va.) said recently.

Last month, a panel of four attorneys told members of Congress that one way to fix the nation's bloated and convoluted criminal code is to require prosecutors to prove intent, especially when it comes to regulatory violations.

A 2010 study by The Heritage Foundation and the National Association of Criminal Defense Lawyers found that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.

George Terwilliger, an attorney, testified during a recent hearing on Capitol Hill that Congress could correct this problem by passing one overriding law that requires proof of intent for any federal crime in which mens rea is not currently a requirement.

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