CHAPTER FOUR

WHAT DOES THE LAW REQUIRE OF US?

The Conundrum of Criminal Intent

It’s the morning of election day. People around the country gather at their local polling places to cast their ballots. There is a sense of excitement as citizens emerge from the booths, having exercised a vital part of their civic duty for another cycle. One voter, a navy lieutenant, takes her daughter by the hand and starts to head back home. She is stopped by a young, enthusiastic student who asks if she’d like to take part in an exit poll. He hands her the questionnaire, which includes a question about whom she voted for, of course. She fills in the answers, folds it up, and drops it into a secure box.

Little does this voter know that she has just turned the student pollster into a criminal, because it is a federal crime to poll a member of the armed forces.1 The worst part is that the pollster doesn’t have to know that the law exists, or that the voter is in the armed services, to be guilty.

• • •

All crimes are made up of elements. For a person to be guilty of a crime, the government must prove beyond a reasonable doubt that each element of the crime is met. Traditionally, the elements of a crime were placed under the headings of actus reus, Latin for “guilty act,” and mens rea, or “guilty mind.” But the age-old requirement that a person has to act with a guilty mind to violate a law has slowly been disappearing. Unfortunately for our student pollster, the only elements of the relevant crime are that the voter was a member of the armed forces and that the pollster asked for information about the voter’s choice. There is no statutory requirement that the pollster have intended to gather information on servicemembers.

This problem is everywhere in our criminal law. It is a multifaceted problem arising from the combination of too many laws, too many regulations that can be incorporated into vague criminal statutes, and too many overzealous prosecutors. What the common law calls mens rea—that is, the mental state required to have criminal intent—is missing from a whole range of crimes today, and overly creative prosecutors have come to use such statutes as a means to target those they dislike.† The clever operatives choose the statutes with the lowest requirement of criminal intent and try to shoehorn the facts into the elements of those easier-to-prove violations. Then they invoke the full might and power of the United States to grind defendants to dust.

An egregious example of this practice is United States v. Rafiekian, a case filed by the Office of Special Counsel in the Eastern District of Virginia. Driven by Brandon Van Grack (a hot-headed lawyer and Weissmann wannabe),^‡ prosecutors used this creative, unprecedented, weak case to cement the guilty plea of Lieutenant General Michael Flynn (Ret.) as he was about to appear before Judge Emmet Sullivan on December 18, 2018, for what was scheduled to be his sentencing.

On the eve of Flynn’s appearance, the prosecutors unsealed the indictment of two businessmen (one from Turkey) who had participated in a consulting business transaction with Flynn. They charged the two with conspiracy to act as an agent of a foreign government and to make willfully false statements in the Flynn Intel Group’s filing under the Foreign Agents Registration Act (FARA), and with the substantive offense of being foreign agents under 18 U.S.C. § 951—as if they had acted at the direction and control of a foreign government, essentially committing some kind of espionage. These charges subjected them to possible imprisonment of fifteen years, for a ninety-day project that resulted in nothing more than the publication of an opinion piece in The Hill on December 8, 2016.

Both the purported FARA violation and section 951 have rarely been used against anyone, much less for facially innocent conduct that no one would think was unlawful, and in a very complex area of the law. In fact, the defendant Bijan Rafiekian and General Flynn had spent more than $350,000 with the “white-shoe” firm of Covington & Burling, hiring one of the leading FARA experts to make the Flynn Intel Group’s filing. Ironically, writing and publishing the opinion piece is also conduct protected by the First Amendment. That doesn’t matter to prosecutors for whom the ends justify the means, and who aim to intimidate and convict someone they want to destroy.2 In this case, the prosecutors chose section 951 because of its lesser mens rea requirement.³

Crimes are often divided into different types according to the element of intent. If a law requires that a guilty person only intended to perform the illegal conduct but not to cause the result of that conduct, then that is a general intent crime. If, on the other hand, a law requires that the guilty person intended both the conduct and the result, that is a specific intent crime. To see the difference, think about manslaughter versus murder. If a person’s intentional actions lead unintentionally to someone’s death, that is manslaughter. If a person intends to cause someone’s death through the actions taken, that is murder. The fact that more people might be guilty of manslaughter than murder doesn’t offend our sense of morality. We generally think manslaughter deserves less punishment than murder.

But the question of intent has led to a lot of confusion, and it is the subject of considerable ink spilled by judges, legislators, and lawyers. In the 1950s and 1960s, the American Law Institute set out to define the different mental states required for different types of crimes, and the result was the Model Penal Code. This is a set of example statutes designed to help legislatures pass thoughtful criminal laws.

The Model Penal Code defined four different mental states that a criminal statute could require: purposely, knowingly, recklessly, and negligently. Acting purposely means a person intends to do the act or cause the result. Acting knowingly is a question of whether a person knows that the action is the kind of thing a law condemns, or that it might cause a result the law prohibits. A person acts recklessly by doing something that is outside the bounds of normal law-abiding behavior and consciously disregarding the risk that a bad result may follow. Acting negligently is the lowest form of mens rea; all it takes is that a person acted without seeing that a risk would exist.

There is another type of crime, though: the strict liability offense. Strict liability means that one doesn’t need to have any knowledge of the law or any intent to act unlawfully. Traffic offenses are essentially strict liability: for the most part, if you speed, it doesn’t matter that you didn’t know what the speed limit is or that you were exceeding it. Similarly, selling alcohol or cigarettes to an underage person is often strict liability, regardless of whether the salesman knows the buyer’s age. Our Espionage Act includes prohibitions of some conduct that amounts to virtual strict liability, but people in our government who have security clearances are schooled in the importance of maintaining our government’s secrets in the interest of our national security, which minimizes their risk of running afoul of the law.

In our example of the student pollster, the statute does include the word “intent,” and at first glance it seems to require some particular mental state. But the list of things that come after the word “intent” makes it meaningless. The prohibition on polling members of the armed forces defines a “poll” as any request for a voter’s information with the intent of compiling it for reporting or publishing, or “for the personal use of the person making the request.” So, the student pollster could be getting paid for the work or just writing a paper for a college class. It isn’t quite strict liability, but it is an example of how the terms that impart a mens rea element to a crime in a statute are not always meaningful. There must be some intent, but it can be any intent, and it certainly does not have to be criminal intent.

This is why we need mens rea reform, to bring the law into accord with the United States Constitution. The rights enshrined in the Constitution largely concern individual liberty, and most of the language in the Bill of Rights focuses on ways in which individual liberty may not be constrained by legislative or government action. Think about the opening words of the First Amendment: “Congress shall make no law.…” Therefore, when individual liberty is constrained by law, the principles upon which this nation was founded demand that the individual be aware of the constraint.

• • •

As the regulatory state began to expand a century ago, criminal law became a rapidly burgeoning means to control behavior. This was particularly true, for example, in food and drug laws. In the famous case of United States v. Dotterweich (1943),4 a manager of a company that purchased pharmaceuticals in bulk and then repackaged them for sale was found guilty under a law imposing strict liability on anyone responsible for shipping “misbranded or adulterated” drugs in interstate commerce. The Supreme Court held that this statute was valid, even though it had no element of intent and imposed strict liability on the manager. Justice Felix Frankfurter wrote:

Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.5

In fact, the Buffalo Pharmaceutical Company that Dotterweich worked for was not at all responsible for the bad conduct in the case. The manufacturers they got the drugs from had made a mistake on their own labels, causing Dotterweich’s company to pass along the drugs with the mistake. Most importantly, the government never had to prove that Dotterweich himself knew either that the drugs were mislabeled or that they were sent into interstate commerce. He was guilty without having any intent to break any law or even knowing that the drugs were mislabeled. Is this fair or just?

Crimes of this kind are generally called “public welfare offenses,” and the justification for making them crimes is always similar to Dotterwiech’s case: some perceived danger to the public outweighs the rights of the accused. These crimes are not like assault, arson, or murder, where the wrongful nature of the act is obvious; these are crimes simply because the government says so. In the language of the law, crimes that are obviously wrong are mala in se, literally meaning “bad in itself.” On the other hand, crimes that are based only on a pronouncement of the government, making otherwise apparently innocent conduct punishable by fines or jail, are called malum prohibitum, forbidden wrongs.

Less than ten years after Dotterweich’s conviction was upheld by the Supreme Court, another statute without a mens rea element came up for review, in 1952. A scrap metal dealer named Joe Morissette was hunting deer in the woods near Flint, Michigan, when he came upon some spent bomb casings, about forty inches long and eight inches across. There was no one around for miles, and Joe thought these casings were abandoned property. So he loaded them into his truck, took them to a friend to be flattened out, and sold them at a scrap market in town. He made $84 on the deal—and wound up with a two-month prison sentence and a $200 fine.

Why? Well, what Joe Morissette didn’t know was that the minute he put those bomb casings in his truck to sell them later, he was guilty of stealing government property. The Air Force had dropped those shells in the woods some years before as simulated bombs. Morissette didn’t notice a few old signs warning that this was (or had been) a bombing range, but he saw a pile of rusty shells that had been cleared away from what used to be the targets. They may have been there for years, but as far as the government was concerned, Morissette still should have known that the shells were not abandoned.

The Supreme Court, to Morissette’s relief, disagreed and struck down his conviction. Justice Robert Jackson wrote:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.6

Decades after Morissette, the Supreme Court continues to tackle statutes that are missing mens rea elements. There has long been debate, for example, over a law that takes away the Second Amendment rights of certain groups of people, including drug users, persons previously convicted of felonies, and undocumented immigrants.⁷ This law is often referred to as “felon-in-possession,” but it actually swallows up a much broader class of people. Anyone deemed to fall into those categories found with a firearm is guilty of a federal crime, without even using the gun to do anything. Though the statute says that one must “knowingly” violate the law to be guilty, it has always been unclear what someone must “know” to violate this law “knowingly.” In a 7-to-2 decision in June 2019, the Court held that someone must know he possessed the gun and know that he fits into one of the prohibited categories to be guilty.8

Another example comes from a case where a young man posted some explicit song lyrics to his Facebook page while he was going through a breakup.⁹ His estranged wife saw the posts and thought they were intended to threaten her. Prosecutors filed charges against him under a statute making it illegal to transmit threats, and the jury was instructed that he only had to be “negligent” about the fact that someone else could have seen his words as a threat. Claiming this was a violation of his First Amendment rights, he took the case to the Supreme Court. Seven justices agreed that it isn’t enough that another person might consider the words threatening; to be guilty of this crime, someone must communicate a threat intentionally. Chief Justice Roberts wrote: “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”¹⁰

• • •

Decisions like these are baby steps forward, but they aren’t enough. Judge-made law is subject to the whims of judges. Durable reform comes from legislative solutions, but Congress doesn’t seem to pick up on the Supreme Court’s repeated warnings about the need for criminal intent in criminal law. We must halt the bipartisan march toward controlling behavior by overcriminalizing conduct and prison-bursting politics. We need to stop rendering our citizens subject to the whims of prosecutors who can prosecute anyone with whom they disagree, because with so many laws they can find something to pin on anyone.

Each side has its own ideas about how to solve the nation’s problems through harsh criminal penalties. These ideas are implemented by the passing of new laws that make more and more actions criminal. The cycle has brought us to the point of having nearly 5,000 federal criminal statutes on the books and over 300,000 federal regulations that impose criminal penalties.¹¹ These criminal laws often have vague language, or none at all, about what someone has to know to be guilty.12 As a consequence, people are accused, and convicted, of crimes they didn’t know they were committing for facially innocent conduct they did not know the law prohibited. Somehow, a nation built on freedom and liberty has managed to end up with citizens who live in growing apprehension of our “criminal justice” system and see it as completely broken.

We need drastic reform to break the cycle, so that innocent people are not subjected to crushing abuse by our “criminal justice” system. Harsh criminal laws are often adopted with bipartisan support by misguided lawmakers, so reforming those laws should be a nonpartisan effort. In particular, we need to fix the problem of mens rea in criminal law—an issue that Senator Orrin Hatch (now retired) diligently tried to address while he was in the Senate, as described below.

The problem is twofold: many new laws are written without any language at all on the mental state required, but when the language is included, it is often unclear as to what mental state is required for which elements of the law.¹³ Think back to our student pollster: what does he have to know to be guilty? All the statute says about intent is that the request for the voter’s information must be “made with the intent of compiling the result of the answers obtained,”¹⁴ but as mentioned above, those results might be intended only for the personal use of the pollster—and how would he ever know that was wrong, much less illegal? Nothing else in the statute seems guided by any criminal intent requirement.

Justice Robert Jackson, in Joe Morissette’s case, explained why many criminal laws in America didn’t have any language about mens rea. He described how a sense of individualism meant that the necessity of proving both a guilty mind and a guilty action—the “concurrence of an evil-meaning mind with an evil-doing hand”—to convict someone was taken for granted.¹⁵ While he seemed to accept that some public welfare offenses would always be strict liability crimes, Justice Jackson said clearly that for crimes like picking up rusty metal in the woods, the government must prove that you know your conduct is criminal.16 Yet more than half a century later, with the knowledge that this missing element of criminal intent cannot be assumed and must be explicit, Congress has still not engaged in a process of meaningful mens rea reform.

A joint report from the National Association of Criminal Defense Lawyers and the Heritage Foundation in 2010 spearheaded a new initiative to make the necessary change. The report made five major recommendations to Congress:

1.  Enact default rules of interpretation to ensure that mens rea requirements are adequate to protect against unjust conviction.

2.  Codify the common-law rule of lenity, which grants defendants the benefit of doubt when Congress fails to legislate clearly.

3.  Require judiciary committee oversight of every bill that includes criminal offenses or penalties.

4.  Require detailed written justification for and analysis of all new federal criminalization.

5.  Redouble efforts to draft every criminal offense clearly and precisely.¹⁷

The report closed by reminding Congress that because it is entrusted with defining criminal conduct, it has a duty to ensure that no one is criminally punished unless its own resources have been devoted to passing laws that are clearly and precisely defined.¹⁸

• • •

As is often the case, state governments, in their role as “laboratories of democracy,”¹⁹ have provided Congress a blueprint for mens rea reform. Michigan and Ohio have seen successful bipartisan efforts to implement a default standard for criminal intent when statutes don’t already contain one.

In Michigan, the reform was prompted in large part by outrage when Alan N. Taylor, the owner of a company that produces vital medical devices, faced thousands of dollars in fines for violating criminal penalties.20 His crime? Slightly extending his company parking lot onto a protected wetland. The problem? He had no reason to know this area was a wetland. The topsoil had been stripped away more than a decade before, and the land had clearly been prepared for construction. A highway and a gas pipeline had recently been laid on adjacent land.²¹ Taylor had absolutely no reason to know he was violating any laws, but he was convicted of two misdemeanors.

Because of a procedural technicality, he could not get relief from the appellate court.²² The Michigan Supreme Court also denied his appeal, but in an unusual move, one of its justices wrote a special opinion with a word of warning:

It is the responsibility of our Legislature to determine the state of mind required to satisfy the criminal statutes of our state, and the judiciary is ill-equipped when reviewing increasingly broad and complex criminal statutes to discern whether some mens rea is intended, for which elements of an offense it is intended, and what exactly that mens rea should be.²³

The Michigan legislature responded to this call by passing a mens rea reform bill that instituted a default standard and required any future legislation intended to create a strict liability offense to say so explicitly.²⁴ The bill was signed into law in late 2015. This kind of reform can be expected to boost public confidence in criminal justice by limiting the application of criminal law to those who intend to commit a crime or have reason to know their conduct is unlawful before they engage in it.²⁵

• • •

Luckily, there are many in Congress who recognize the problem of vague laws that make criminals of people who have no reason to think they are doing anything illegal, and some legislators are trying to reform such laws. Senators Orrin Hatch, Rand Paul, and Chuck Grassley (all Republicans) have championed mens rea reform as a central part of any attempt to overhaul the criminal justice system.26 Building on prior efforts, Senators Hatch and Grassley introduced the Mens Rea Reform Act of 2018. This legislation would have done three main things:

•  Create a National Criminal Justice Commission to identify any federal criminal laws lacking a mens rea element. The commission and Congress would have had five years to amend these laws.

•  Give federal agencies six years to conduct a similar review of federal regulations. Any regulation remaining after six years without a specified mens rea standard would be invalid.

•  Set a default “willfully” standard for any future criminal law unless Congress specifically set out another.²⁷

As the senators described it: “Our bill will begin the work of clarifying the criminal law already on the books and will encourage Congress and federal agencies to be more careful when creating criminal penalties going forward.”²⁸

One of the easiest ways for Congress to end overcriminalization is to pass a simple statute providing that no regulation can be criminalized unless Congress specifically does so in 18 United States Code. Unfortunately, partisan politics and obstructionism have blocked this reform. Bipartisan criminal justice reform legislation passed in late 2018, called the First Step Act, did not include mens rea reform,²⁹ just as an unsuccessful compromise bill in 2015 had not.³⁰ In both instances, two Democratic senators, Richard Durbin and Sheldon Whitehouse, led the charge against its inclusion, the latter saying that adding mens rea reform to the bill “would make me a warrior against it.”³¹

Curiously, the objection seems to be that the reform would do exactly what it is intended to do: subject fewer people to criminal penalties. The problem these Democrats have with such a prospect is that they think the people who would avoid criminal punishment are slimy corporate executives. Dick Durbin once said that mens rea reform “should be called the White Collar Criminal Immunity Act.”32 Liberal think tanks have released reports claiming that the reform would allow white-collar defendants to plead ignorance of the law, leave critical safety statutes unenforced, and create legal uncertainty.³³ Yet, the reforms are actually intended and designed to do the opposite: define statutory elements more precisely so that everyone knows what conduct is prohibited, thereby improving enforcement and creating stability and certainty.

The Mens Rea Reform Act of 2018 was in fact already informed by recommendations and compromises that commentators encouraged after the failed efforts in 2015. For example, the New York City Bar Association sent a detailed letter urging the very ideas that Senators Hatch and Grassley later incorporated for the National Criminal Justice Commission and the extended period for agencies to review their regulations.³⁴ Law professors from ivy-league schools made public pleas for the Democrats to participate and find compromise legislation.³⁵ Unfortunately, the 2018 mens rea proposal did not become part of the First Step Act, so another of the New York City Bar’s recommendations will have to be followed: considering mens rea reform as a stand-alone legislative effort.

Do the critics have a point about disparate effects on criminal defendants of different categories? And if they do, what’s the solution? Benjamin Levin, a criminal justice scholar and University of Colorado law professor, tackled these questions in an article published soon after the passage of the First Step Act. Here he discusses what he calls the “three core pathologies of U.S. criminal policy,” namely:

1.  a commitment to using criminal law as the default regulatory model;

2.  a tendency to level up when faced with inequality (i.e., to punish the powerful defendant more, rather than punishing the powerless defendant less); and

3.  the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.36

Professor Levin acknowledges that the bulk of criminal prosecutions are unlike our example of the student pollster. He also concedes that mens rea reform is narrowly focused and cannot cure all the ills of the criminal justice system, as no single reform can. “But it is not entirely clear,” he writes, “why this critique would indicate that mens rea reform is a policy to be opposed, rather than a proposal that should be only one small piece of a larger, more ambitious reform agenda.”³⁷

Professor Levin’s most powerful words, though, come in the context of what he calls “leveling up.” This is the idea that when faced with one defendant punished too little and one punished too much, the right remedy is to punish the first one more and not the second one less. This is where the Democrats’ objection comes in: when a defendant in a drug case gets a decades-long sentence and a defendant in a white-collar case gets only a fine, the impulse is to give the white-collar defendant more time. But as Levin points out, “Just because the politics of mens rea reform look different than the politics of three-strikes laws, the War on Drugs, or other often conservative-backed endeavors, this turn to criminal law [by “progressives”] should not be exempt from a critical eye.”³⁸ When our answer to every social ill—whether the problem we see is on the streets or in the boardrooms—is to pass a new criminal law, we end up where we are: with 2.25 million people in prison or jail.³⁹

• • •

Here’s the truth: reforms that help one group in the short term can be used to benefit everyone in the long term. That’s something the country learned from Ruth Bader Ginsburg. In the 1970s, when she was an ACLU lawyer arguing at the Supreme Court instead of the one making the decisions, her strategy was to find men who had suffered gender discrimination. In a series of cases, she dismantled unjust policies on spousal benefits and property inheritance. If she could explain how laws that favored women over men were bad, then she could establish a logically consistent position to justify eliminating laws that favored men over women. She was criticized by some on her own side for engaging in an effort that would backfire and not achieve her goals, but she was largely successful.40

We face the same problem with mens rea reform. Some on the left—specifically, an element in the Senate unwilling to compromise—are letting their own predilections about which type of crime should be punished more harshly impede their efforts at common-sense reform that would serve all Americans. Certainly, some people accused of economic or regulatory crimes—the majority of whom come from groups that are more affluent than those accused of other types of crime—may benefit from mens rea reforms. But that doesn’t mean the benefits won’t inure to everyone. These reforms are right because they are the right thing to do, not because of whom they will or won’t benefit in the short term. After all, the same prosecutors that are—often rightly—accused of unfair or aggressive tactics in one context are enforcing the laws in all contexts. It is inconsistent to say that these prosecutors are good when they enforce some laws (financial crimes or environmental regulations) and bad when they enforce others (drug or gun laws).

Even if the critics are right, and mens rea reform would be good for those accused of white-collar crime, that does not mean it won’t also be good for those accused of other kinds of crime. Why do we have a desire to punish white-collar defendants more harshly, rather than ease the burden of the state on all people accused of crime? Why would using criminal laws punitively to incarcerate “transgressors” be moral in some cases and not in others? Isn’t it better that everyone who is not a danger to the community or a risk of flight be able to remain at home, living at his own expense (even if on home confinement), working to support his family, paying taxes and generally contributing to society, instead of costing taxpayers upward of $40,000 a year to be warehoused in a nonproductive cage? We can be much less creative in criminalizing conduct and more creative in how we punish true crimes and criminals without causing wasteful, needless, expensive, and counterproductive confinement.

Don’t all those who are accused of crime deserve the same rights to have the elements of their alleged offense proved beyond a reasonable doubt? In fact, Justice Ginsburg herself agrees that certain financial crimes do require that someone act “willfully,” as evidenced by her majority opinion in the Supreme Court case of Ratzlaf v. United States.41 There, a defendant was charged under a statute that made it a crime to structure bank deposits just small enough to avoid reporting them. Justice Ginsburg invoked the statutory text and the common law “rule of lenity,” which requires that an unclear statute be interpreted in favor of a criminal defendant, to find that Ratzlaf could not be guilty under this statute because the government had not proved his criminal intent.⁴²

Criminal laws are not the best way to regulate society. The idea that we can make an “example” by prosecuting someone under a strict liability statute miscalculates what is communicated by punishment.⁴³ Let’s assume, for the sake of argument, that punishment can communicate society’s values appropriately. If our student pollster were arrested and charged, without knowing about the law against polling the military or even that the voter he approached was a servicemember, what would that communicate? Would it say that we are a society of laws, where individual liberty is protected? Granted, the jails are not overflowing with defendants like this, but if we are talking about the way that law can communicate ideas, then we must be as precise as possible. Individual liberty is about individuals, so whether one or one hundred or one thousand defendants are potentially exposed to criminal liability should make no difference. If our laws make criminals out of people with no criminal intent, then our system has failed.

Criminal punishment “represents the moral condemnation” of society, as the Supreme Court has said.44 It changes lives and families forever. We should think long and hard about the circumstances and level of knowledge and intent that ought to be required for such condemnation and punishment to be imposed.

† In 1940, Attorney General Robert H. Jackson warned of this problem in his famous speech, “The Federal Prosecutor,” quoted in the Preface.

‡ To understand Andrew Weissmann and why this is a problem, one must read Licensed to Lie.