Wednesday, September 28, 2011
Gary Fields and John Emshwiller of the Wall Street Journal write a must-read article (alternate, non-paywalled link possibly here under "Age-Old Legal Principle Declines") that discusses the decline of the mens rea standard for finding criminal guilt. This unfortunate trend goes a long way in explaining why so many people are finding themselves in legal trouble for doing things that common sense would say are not wrong or, as I once put it, "It's all a federal case:"
... 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.The article illustrates the problem well by relating the tale of a trapper who was legally required to sell certain types of animals only to indigenous Alaskans. He was convicted and penalized after making a sale to people he believed were indigenous Alaskans, but who were not.
As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. ...
This problem is so out of hand that our Congress sometimes even compounds illegitimate, rights-violating legislation with carelessness about basic legal protections.
The erosion of mens rea is partly due to the "hit or miss" way American legislation gets written today, says Jay Apperson, a former Chief Counsel to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Some lawmakers simply omit criminal-intent provisions when they draft legislation. "Lots of members don't think about it, not out of a malevolent motive," he says. "They just don't think about it." [minor format edits]This is no coincidence and, really, not surprising: Both the kinds of laws that are being passed and the indifference to the legal protections Americans should enjoy are what you would expect from lawmakers who see their main consideration as something other than protecting individual rights.