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For Proponents of More Federal Criminal Legislation, Ignorance of the Law Is Bliss

Posted By Joe Luppino-Esposito On October 1, 2011 @ 12:00 pm In Featured | Comments Disabled

Animal rights activists and commercial fisherman may find little common ground, but both can share their plight as victims of overcriminalization.  The front page story in the Wall Street Journal [1] juxtaposes these often-at-odds groups because they are vulnerable to the problems of overbroad and ambiguous legislation… along with the rest of us.

Year after year, Congress proposes hundreds of criminal laws, and, frighteningly, many are enacted that do not require the accused to be aware that his conduct is illegal.  Even the most casual observers of the criminal law system, let alone Law & Order fans, are aware that criminal intent, or mens rea as it is known, is an essential part of any criminal offense.

The Heritage Foundation and the National Association of Criminal Defense Lawyers published the Without Intent [2] report last year, highlighting the problem of federal laws that are drafted with weak requirements of mens rea that make it easy for the government to prove that one merely committed the act and was aware of it, and nothing more.  No jury would ever have to decide what the intentions of the accused might have been.

Reporters Gary Fields and John R. Emshwiller highlight the unfortunate stories of those whose actions spoke far louder than their intentions, at least in the eyes of the U.S. government. Among them are the fisherman who set free a whale entangled in his nets, who was later charged with a crime for not calling the proper authorities to set the whale free.  Had he not pled guilty, he could have faced a year in jail and $100,000 fine.

And what about the animal rights activists?  The 2006 Animal Enterprise Terrorism Act has made a crime out of even the most basic protests against certain businesses and individuals if the target of the protest felt threatened.  But there is some relief from overzealous legislators: The first case brought under this law, in 2009, was thrown out by a federal judge on the basis that the indictment was not clear as to what even constituted criminal action.

And as more legislators and other public officials are becoming aware of the problem of the lack of proper intent in criminal laws, there is hope that lawmakers will take pause.  The issue spans across the aisle–Bobby Scott D-VA, and Louie Gohmert, R-TX are some of the most outspoken critics of the flawed drafting.  Others want to reform the criminal law at the federal level and make sure that criminal intent is carefully considered and no longer an afterthought.

Still, too many politicians push onward, carrying around the maxim that “ignorance of the law is no excuse” and criminalizing solely on the basis of actions, not intentions.  Indeed, the road the federal prison may be lined with no intentions at all.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2011/10/01/for-proponents-of-more-federal-criminal-legislation-ignorance-of-the-law-is-bliss/

URLs in this post:

[1] Wall Street Journal: http://online.wsj.com/article_email/SB10001424053111904060604576570801651620000-lMyQjAxMTAxMDIwNzEyNDcyWj.html?mod=wsj_share_email

[2] Without Intent: http://www.heritage.org/research/reports/2010/05/without-intent

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