Proliferation of strict liability crimes contribute to overcriminalization

Conservative advocacy group Right on Crime urged lawmakers to reform the “criminal mental state” requirement in federal criminal codes in a report published recently, reported Jurist. The report also criticized the proliferation of laws that require no specific mental state as contributing to over-criminalization in the country.

Right on Crime contends that “there has been an explosion of criminal laws passed by Congress and promulgated by federal executive agencies” where mens rea requirements have been intentionally omitted. The paper argued that the growth of federal law and lack of mens rea requirements have damaged public confidence in criminal law by “creat[ing] cynicism and indifference to the whole criminal law.”

The report further argued that mandating a mens rea requirement in every federal criminal statute would help eliminate over-criminalization and the abuse of prosecutorial discretion. Seven recommendations were given including executive action, new legislation making mens rea statutory requirement for criminal law, adoption of the rule of lenity which would force courts to interpret ambiguous statutes in favor of defendants, and better tracking of the volume of crimes to better inform legislators and the public.

Mens rea is a requirement in criminal law that an accused individual have a particular mental state when a crime is committed to be found guilty of a crime. Mens rea requirements are considered foundational to criminal law, examples include requirements for “malicious intent” when prosecuting first degree murder charges or requirements that a defendant “knowingly” engage in certain conduct to be found liable in other crimes.

On the other hand, strict liability crimes are crimes where an accused is found guilty simply based on whether or not the prohibited activity occurred. They are typically rare or disfavored for their lack of flexibility when applied to widely different sets of facts since they do not consider what a person was thinking or intended when they committed a certain act. Nonetheless, the multitude of “strict liability” crimes nowadays has drastically increased the Federal Register where federal laws are published has gone from 16 pages in 1936 to an average of 70,000.

Compared to the traditional conservative “tough on crime” approach, Right on Crime views crime from a fiscal perspective and highlights the high cost of imprisoning criminals. The group mandates to advocate for cost-effective approaches to enhance public safety without jailing nonviolent and low-risk offenders.

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Felony-murder: 'A distinctly American innovation'

What makes a murderer? Intent is often assumed to be a factor. But, for hundreds of years, the felony-murder doctrine has muddled this conceit, writes Sarah Stillman in The New Yorker.

In 1716, the legal theorist William Hawkins argued that a crime like robbery “necessarily tends to raise Tumults and Quarrels . . . and cannot but be attended with the Danger of personal Hurt.” Any resulting death, he posited, was tantamount to murder. Such notions began being applied in British courts later in the eighteenth century, and, almost from the beginning, Britons were questioning whether the felony-murder doctrine was just.

The question came to a head in 1953, when, despite widespread pleas for clemency, a nineteen-year-old Londoner named Derek Bentley was executed because his sixteen-year-old accomplice in a burglary killed a policeman during the crime. Four years later, the U.K. abolished the doctrine, and other Commonwealth nations followed suit. The United States, meanwhile, went in the opposite direction.

According to Guyora Binder, of the University at Buffalo School of Law, the modern felony-murder doctrine is best understood as “a distinctly American innovation.” Although it was first applied early in the nineteenth century, use of the charge surged in the nineteen-seventies, when the era of mass incarceration began. Fifty years later, Binder contends, no country relies on the doctrine more.

In Tulsa, two men attempted to steal some copper wire from a radio tower and accidentally electrocuted themselves. One of them died and the other was charged with first-degree murder while recovering from his burns in the hospital; the girlfriend of the deceased was also charged with murder, for having driven them to the tower. In Topeka, a twenty-two-year-old made the mistake of hiding his gun atop his girlfriend’s refrigerator; he was charged with first-degree murder several days later, when a child inadvertently fired it at a thirteen-year-old girl. In Minneapolis, a sixteen-year-old girl who sat in the car while two older men killed someone in a robbery was charged with felony murder. Deemed too young to enter the adult prison population after her conviction, she was placed in solitary confinement for months, purportedly for her own safety. In Somerville, Tennessee, last May, three teen-age girls overdosed on fentanyl in their high school’s parking lot before a graduation ceremony. Two of them died, and the surviving girl was charged with murder.

For prosecutors, the felony-murder rule offers an efficient path to conviction: winning a case is much easier if you don’t need to prove a person’s mens rea—“guilty mind”—or even, in some cases, to establish that the accused was at the scene of the crime. Forty-eight states now have some version of the statute. Charlie Smith, the president of the National District Attorneys Association, told me that the tool is particularly useful in cases with vulnerable victims, such as an elderly woman in a wheelchair who gets assaulted in a purse-snatching incident and dies. “The community would feel it’s not reasonable if the old lady’s death was just a simple misdemeanor assault,” he said. Prosecutors often employ felony murder when a death results from an armed robbery—a category of crime that Smith contends, in the spirit of Hawkins, carries death as a foreseeable outcome.

Another benefit to prosecutors is that the steep penalties often attached to felony murder—including life sentences—compel defendants to plead guilty to a lesser charge. “We shouldn’t underestimate how many plea bargains occur in the shadow of felony-murder charges across the country,” Ekow Yankah, a law professor at the University of Michigan, told me. “It is one of those quiet drivers of mass incarceration we never acknowledge.”

Remarkably, no one knows how many people in the United States have been imprisoned for the crime. So in 2022, working with students and colleagues at the Yale Investigative Reporting Lab, I decided to try to get a sense of the scale. We started by filing public-records requests to state corrections departments and other agencies across the country; to our surprise, most told us that they weren’t keeping track. “The records do not exist,” an official at the Virginia Department of Corrections wrote, in a typical response. In most states, a felony-murder conviction gets lumped in with other types of murder, clouding the data. It was as if the extent of felony murder in America were hidden by design.

 When we eventually secured robust data from eleven states, our lab’s analysts discovered that racial disparities for felony-murder convictions were higher—sometimes far higher—than the already disproportionate rates of Black incarceration over all. In Wisconsin, where Black individuals account for less than seven per cent of the population, the data show that they make up seventy-six per cent of those incarcerated for felony murder. In St. Louis, every felony-murder conviction between 2010 and 2022—a total of forty-seven people, according to the State of Missouri—was of a Black person.

To identify cases in other states, we worked with analysts at the nonprofit organization Measures for Justice, and with several law-school clinics, to obtain previously unpublished data. Thus far, we’ve documented more than ten thousand felony-murder convictions nationwide. We’ve also scoured trial records, appeals, and news clips, finding and scrutinizing more than two hundred cases, like Baxter’s, in which the defendant neither killed nor intended to kill the victim. Women were sometimes charged for driving getaway cars for abusive partners, or performing other tasks under duress; some of the women served longer jail terms than their partners who’d committed the killing. And, time and again, young people were prosecuted for what an acquaintance, to their shock, had decided to do. In the past two years, I travelled from Alabama to California to Michigan to meet some of the individuals who have served time on the charge—along with crime victims’ families, prosecutors, public defenders, and others—to consider how a doctrine so widely critiqued, and rejected elsewhere in the world, has proved stubbornly resilient in the United States.

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SCOTUS decides reckless satisfies intent for threat

The First Amendment does not, and never has, protected threats of violence, and this week the Supreme Court clarified the standard for criminalizing “true-threats,” resolving a circuit split in the process. In Counterman v. Colorado, the Court, in an opinion written by Justice Elena Kagan, held that although a person needs to intend for words to be threatening to rise to the level of criminality, a showing that a person was acting recklessly when they made the statement would satisfy the intent requirement, reported Lawfare.  

What Is a “True-Threat”?

The Court began by defining a “true-threat” as a “‘serious expression’ conveying that a speaker means to ‘commit an act of unlawful violence.’” The Court reiterated, however, their distinction that a true-threat is different from “jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.”  

he Court decided between three different mens rea standards for the prosecution to be able to convict someone under a true-threats theory: (a) The defendant wanted his words to be perceived as a threat (purposeful); (b) he knew to a practical certainty that his words would be taken as a threat (knowledge); and (c) he consciously disregarded a substantial and unjustifiable risk that the conduct would cause harm to another (recklessness). Out of these three standards, recklessness prevailed as the path forward: “In the threats context, it means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” The Court noted that reckless defendants have done more than make a bad mistake, but have consciously accepted a substantial risk of inflicting serious harm. Their formulation of the path forward took into consideration the “competing value” found in “protecting against the profound harms, to both individuals and society, that attend true threats of violence—as evidenced by this case” against chilling protected speech.  

Therefore, the Court ruled that, to find that someone communicated a true-threat, a party must prove the defendant at least acted recklessly when he or she conveyed the threat to another.  

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Respect for the guilty mind-the disappearance of mens rea

Respect for the guilty mind is intuitive, reported the Boston Review. As Justice Oliver Wendell Holmes, Jr., famously put it, “even a dog distinguishes between being stumbled over and being kicked.” Of course, humans do too: a wide array of studies has shown that our intuitive moral sense of how to respond to harm or wrongdoing is keenly sensitive to what is happening in the minds of others. And this appears to be true from a very young age. Psychologists have found that even kindergarteners “make their culpability and punishment decisions proportionately” based on morally relevant differences in mens rea.

In theory, the criminal law is like this too. U.S. legal culture generally accepts that the criminal justice system should not punish people who make reasonable mistakes or for accidents, nor should it punish those who cannot think or act morally (say, due to mental illness). It is also accepted that the criminal justice system should excuse those who make understandably bad decisions in excruciating and extenuating circumstances. No doubt, individuals in these situations may do something harmful—perhaps terribly so. But in the absence of a guilty mind, the law should—and typically does—view them as morally innocent, and therefore beyond the reach of criminal liability.

The law has also embraced a similar notion in sentencing. As I’ve highlighted elsewhere, the principle of “proportional mens rea” says that, all else being equal, punishment should track the guiltiness of a defendant’s state of mind. This is the animating idea behind our centuries-old homicide laws, which go to great lengths to differentiate between mental states, and, ultimately, to lessen sentences for those whose choices are less blameworthy than the paradigmatic case of a cold-blooded, premeditated murder. An intentional killing committed in the heat of passion (e.g., an aggrieved parent who kills her child’s bully in a fit of rage) is often mitigated down to manslaughter, as is one committed recklessly (e.g., a fatal decision to run a red light, in conscious disregard of a slowly approaching pedestrian). And where that killing is intentional but motivated by imperfect self-defense (e.g., someone who unreasonably mistakes a friend for a foe), or is just plain negligent (e.g., a thoughtless college student mishandling a gun accidentally fires it), the charge may be dropped even further to negligent homicide—or a lesser form of manslaughter, with labels varying from jurisdiction to jurisdiction.

All of these individuals have perpetrated the same wrongful act: killing a human being. But because of the important distinctions in mental state accompanying that act, criminal law provides them with increasingly lenient sentences.

This is how the criminal justice system is supposed to operate: limiting convictions to guilty minds and apportioning punishment in accordance with their guiltiness. The U.S. Supreme Court has recognized this basic idea to be (1) “universal and persistent in mature systems of law,” (2) as fundamental as our belief in an individual’s ability to “choose between good and evil,” and (3) “essential if we are to retain ‘the relation between criminal liability and moral culpability’ on which criminal justice depends.” Similar statements are frequently made by courts and scholars around the country, who are drawn to the intuitively appealing vision of—as Douglas Husak puts it—“a world in which impositions of criminal liability and punishment correspond to our considered judgments of blame and desert.”

If legal rhetoric were an accurate gauge of legislative reality, our criminal justice system’s treatment of mens rea would be pristine. But this is simply not the case. Criminal statutes, the primary source of liability and punishment in this country, often fail to live up to this commitment to moral guilt. In a surprisingly large number of situations, our nation’s lawmakers have disregarded traditional mens rea principles in favor of a tough-on-crime approach that sacrifices our intuitive sense of fairness in pursuit of an amorphous idea of “public safety.”

The drug arena is a case in point, in part because it is where some of the most aggressive tough-on-crime campaigns have been waged. U.S. drug policies often focus on behavior to the near total exclusion of mental state considerations. Many drug possession statutes apply a “strict liability” approach, in which—as Markus Dubber explains—“you can be convicted . . . if you don’t know that you are ‘possessing’ a drug of any kind, what drug you are ‘possessing,’ how much of it you’ve got, or—in some states—even that you are possessing anything at all, drug or no drug.”

Just as strict is the ruthlessly quantitative approach to drug sentencing employed in most jurisdictions that bases punishment on what Doug Berman calls “fairly arbitrary questions about how the drugs involved in an offense are to be classified or quantified instead of on a defendant’s actual culpability.” What this means, in practice, is that small-time dealers can be punished just as severely as big-time traffickers (think decades, not years) based upon their tangential connection to massive quantities of narcotics they had no idea existed and had no intent to sell.

Similarly strict tendencies are reflected in the law of violence. Some jurisdictions have assault and homicide statutes that convict those who, absent clear moral fault, accidentally injure or kill another person in the course of daily life. (This situation is often the result of applying civil negligence standards in the criminal context.) And nearly all jurisdictions have homicide laws that treat unwitting fatal accidents that occur in the course of perpetrating a felony crime as murder. The consequences of these “felony murder” laws are often striking.

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