Thursday, May 06, 2010

Eroding the criminal intent requirement in criminal law

Via Sentencing Law & Policy, I'm pleased if surprised to learn that Texas Congressman Louie Gohmert was among those participating when a report was jointly released by the unlikely duo of the Heritage Foundation and the National Association of Criminal Defense Lawyers. The publication is titled "Without Intent: How Congress is eroding the criminal intent requirement in federal law." Writes Doug Berman, "As detailed in this NACDL press release, yesterday the Heritage Foundation and NACDL released a big report and recommendations on Capitol Hill concerning federal criminal law." From the press release:

In a joint press conference [yesterday] on Capitol Hill commemorating Law Day 2010, Rep. Bobby Scott (D-VA) and Rep. Louie Gohmert (R-TX), the Chairman and Ranking Member of the House Crime Subcommittee, respectively, sponsored the release of the groundbreaking, non-partisan report prepared by the National Association of Criminal Defense Lawyers and the Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. In addition, NACDL Executive Director Norman Reimer and Former Attorney General Edwin Meese also spoke.

In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes that lack adequate criminal intent protection for innocent actors. NACDL and Heritage undertook an unprecedented study of the federal legislative process which yielded this report. Among its findings, the study determined that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57 percent lacked an adequate guilty-mind requirement. The report also reveals that 23 of those inadequately protective offenses were even enacted into law.

The full "Without Intent" report can be accessed at this link, and a helpful one-page fact sheet is available here. In addition, the reports four-page executive summary is availble at this link.

One imagines a similar report could be written regarding state-level statutes.


Anonymous said...

Grits does it really matter. If they cannot get you on the criminal side, they've been practicing on one particular ex-offender group the last 15 years on the civil law side of things with impunity. soon, very soon, our children will look back and ask.."what was this thing called intent, and why did you need it.."

Kay Sieverding said...

USDOJ incarcerated me for 5 months without a criminal charge at all. I wasn't arraigned, there was no bail hearing, and no criminal complaint was filed. The prosecutor wasn't even a government employee and he wasn't paid by the government. The stated purpose of incarceration was to deter, prevent and/or influence my presentation in DDC 05-cv-01672.

In its role as prosecutor, Feagre & Benson’s former partner Christopher Beall said: “the point is that this is a civil contempt hearing. Regardless of any possibility of incarceration, Mr. and Mrs. Sieverding hold the keys to their cell. They may comply with the Court’s order, at least prospectively, and they may avoid incarceration. As a result, this is civil, not criminal contempt. They do not have the right to counsel. They do not have the right to a jury trial. They do not have the right to a full and complete evidentiary hearing.” (02-cv-1950 document 884, 08-cv-01064 document 30 transcript 9/2/05, p. 13)

Anonymous said...

"One imagines a similar report could be written regarding state-level statutes." Grits, I'd be interested in your list of state-level statutes that you imagine would be included in this report. Other than traffic offenses (including DWI), which have been "strict liability" since before bread was sliced, what state-level statutes concern you in this regard? Texas statutory/case law pretty clearly outlines that unless a statute plainly dispenses with a culpable mental state, one must proved as an element of an offense. (Honeycutt, 627 sw2d 417 Tex Crim App 1981; Pollard, 687 sw2d 373 Tex App Dallas 1985; Aguirre 22 sw3d 463 Tex Crim App 1999.) While the federal courts tend to do things their own way, and might not have provided for similar protections in that system, I think you're fairly safe in Texas demanding a culpable mental state in any charging instrument against you. Do you disagree?

Gritsforbreakfast said...

"unless a statute plainly dispenses with a culpable mental state"

Wouldn't you agree that some statutes do just that? Otherwise why would such an exception be referenced? There are 2,383 felonies on the books in TX and many more misdemeanors, so I don't have time to vet them all to properly answer your question, but it's not unheard of.

Also, just to have mentioned it, when you say "except for traffic offenses including DWI," you're talking about the majority of the public's interactions with police. I also think there are some special-interest driven boutique crimes, often related to business activities, that also have eroded "intent." So I do imagine there is a state-level report to be written on the subject, even if it may focus in different areas than a federal study.

Anonymous 5/07/2010 01:21:00 PM said...

"[U]nless a statute plainly dispenses with a culpable mental state...Wouldn't you agree that some statutes do just that?" Of course. And all the ones I could think of were encompassed by "traffic offenses (including DWI)."

I'm not sure whether or not I agree with you that traffic offenses (including DWI) encompass "the majority of the public's interactions with police," especially given that the public interacts with police not only as those accused of crimes, but also those who are victims of or witnesses to crime, but for the sake of argument, I'll give you the benefit of the doubt. Even if that's so, it's hardly relevant. Whether or not a culpable mental state is required should be determined by the behavior the particular statute intends to criminalize, not by an overwhelming and illogical love of culpable mental states. In the case of traffic offenses, those are strict liability for a *reason*, and it's not because a culpable mental state might create an almost insurmountable proof problem for the state, although I don't deny that's so. It's because we, as a society, are against people committing traffic offenses "by accident." We don't want you to run the red light at all, and we don't want to excuse your running it just because you weren't paying attention. Paying sufficient attention when you drive such that you *don't* accidentally drive 45 in an active school zone is precisely the *point*. And that lack of culpable mental state is balanced by the extreme low end of the punishment scale on which these offenses reside. Pay attention to your driving or pay a fine is a pretty reasonable position to take, all in all, and that position alone has a deterrent impact on the behavior we're trying to correct.

But take a major felony like murder or manslaughter. Given the devastating potential punishments for murder/manslaughter, it really ought to matter whether you did it intentionally, knowingly, recklessly or with criminal negligence, because no matter the level of intent, if you had one, you are not going to skip out of court having paid a fine. Again, it's an entirely reasonable position that a) a crime that we would choose to punish much more harshly would be a crime for which the burden of proof would be higher, and b) we don't have a lot of purely accidental killings going on, and it's not entirely certain that a strict liability offense would deter them even if we did.

Whether or not to include a culpable mental state in an offense is, therefore, subject to a lot more tedious calculus than just "strict liability offenses are bad." It matters WHICH offenses are strict liability, and thus, my question still stands. This "one" still doesn't imagine a similar report could be written about Texas statutes, but even if it could, if the report consisted entirely of the moving offenses listed in the Texas Transportation Code, whether or not those constitute "the majority of the [accused] public's interactions with police," I don't believe the lack of culpable mental states in that context is a problem. Rather, it's part of the fix for the problem we're trying to fix with those particular statutes.

I'm not trying to be tacky, but I'd like to discuss just one offense from Texas law that doesn't require -- based on the statute AND the applicable case law -- a culpable mental state when it arguably should, given the context of that particular offense. I can't think of any. But if you can, business activity related or not, I'd like to know.

(On the federal level, you'll get no argument from me. The feds are pretty famous for the nonsense offenses on the books, including the federal offense of intentionally disrupting a rodeo. It isn't at all surprising that important things like culpable mental states get lost in the static.)

Anonymous said...

I know it's somewhat of a tangent, but I am curious. Are all traffic violations strict liability offenses? We know that speeding is. See Zulauf v. State, 591 S.W.2d 869 (Tex. Cr. App. 1979). Without the CCA saying so or statutes conflicting with TPC 6.02, do we know that traffic violation are strict liability?