'Reining in Overcriminalization' (federal edition)

On average, the US Congress creates 56 new federal crimes per year, and many of them are written broadly with no "mens rea" requirement that the offender knowingly engaged in illegal activity, according to testimony last month before the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security on the subject of "Reining in Overcriminalization," video of which has been posted on the subcommittee's website.

The Heritage Foundation and the National Association of Criminal Defense Lawyers deserve credit for forcing this issue onto the Congressional radar screen with their report from last year, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The hearing's featured witness, of all people, was former racecar driver Bobby Unser, who was prosecuted for getting lost on a snowmobile in a blizzard and accidentally wandering into a restricted wilderness area near his ranch in New Mexico. Legislators also heard testimony from Houston attorney Jim Lavine and Brian Walsh from the Heritage Foundation, as well as former Assistant US Attorney Andrew Weissman and law professors Ellen Podgor and Stephen Smith. (Those interested should check out their written testimony in the links provided.)

Even Texas Congressmen Louie Gohmert and Ted Poe - neither of them touchy feely liberals by any measure - expressed concern over the proliferation of federal criminal laws and their often breathtaking scope. Lavine framed the issue with these remarkable data:

There are over 4,450 federal crimes scattered throughout the 50 titles of the United States Code. In addition, it is estimated that there are at least 10,000, and quite possibly as many as 300,000, federal regulations that can be enforced criminally. The truth is no one, including the government, has been able to provide an accurate count of how many criminal offenses exist in our federal code. This is not simply statistical curiosity, but a matter with serious consequences.

No one offered great suggestions on how to stop Congress from enacting new criminal laws year in and year out. The practice of identifying an activity this or that constituent group doesn't like, engaging in demagoguery to play to their worst instincts, then passing (usually pointless, redundant) criminal statutes to demonstrate how "tough" they are is so deeply ingrained in the psyche of American politicians that it's hard to guess what if anything might reverse that ignominious trend.

There were, however, interesting suggestions to confront the lack of a mens rea (i.e., criminal intent) component in so many laws passed in recent years. Prof. Podgor and others urged Congress to create a freestanding mens rea requirement. She pointed out that “The American Law Institute‟s Model Penal Code (MPC) has both a default mens rea component and an explicit statement that '[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.'” Podgor went on to give advice in drafting statutes that Texas legislators would do well to follow:

It is important in drafting legislation to incorporate specific mens rea terminology that would mandate that an accused act purposefully or with knowledge that the conduct was illegal. With many federal statutes failing to provide a clear statement of mens rea, or having a weak mens rea statement that fails to account for the importance of knowing the illegality of the conduct, it is important to provide a default mens rea that would require proof that the accused knew his or her conduct was illegal.

Another interesting suggestion was to codify the "rule of lenity," As described by Supreme Court Justice Antonin Scalia, "This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead."

Florida's statutes specifically codify this rule, and multiple speakers testified Congress should do the same. I don't know the status of that rule in Texas - whether it's codified, embodied in court precedent, or what weight it tends to carry (I'm guessing very little) in practice in Texas courts, but that sounded like a good idea to me.

There's lots more good stuff in the testimony and video posted on the subcommittee's website for anyone interested.