Eagle Forum Legislative Alerts

Sunday, December 18, 2011

No guilty mind needed

The WSJ reported in September:
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.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. ...

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.

Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."

A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law. It can be easier to fall afoul of the law under these terms.
The article gave examples of federal proscutors criminalizing a minor mistake.

The latest example is the great baseball player Barry Bonds, who was just sentenced after a 10-year investigation and trial. He was not convicted of using steroids or of perjury, but of giving an incomplete answer to a question before the grand jury. The judge admitted that Bonds did not actually obstruct justice. The prosecutors wanted to make an example out of Bonds because he had supposedly cheated to break the baseball records of some of their favorite players. Bonds may or may not have cheated in baseball, but he was not convicted of that and federal law does not usually enforce baseball rules.

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