The weekend forecast calls for sunny skies, so you decide to have a picnic in a national park with your family. After finishing your meal you throw away your trash. Your son, however, isn’t so careful — he leaves behind a few leftover items. As you leave your picnic area, a park ranger asks if you or your family has left trash in the area. You tell him that you’ve cleaned up after yourself.
You’ve just committed an arguable federal felony: False Statements to a Federal Official. Any false statement made to a government official — even when it is made in conversation and not under oath nor in writing — can leave a citizen vulnerable to a “false statement” charge.
That many seem absurd, but as civil rights lawyer Harvey A. Silvergate notes, this hypothetical example has real-life parallels. Overcriminalization and an increase in vague regulations have made most of us unknowing and unintentional felons.
This wasn’t always the case. Under the common law, criminal intent — an intention to commit a crime or violate a law — was a necessary element of every crime. Most statutory laws also require criminal intent. However, as William J. Sloan explains,
[B]ecause of the complicated nature of modem society, the legislatures of the states have found it necessary, in order to protect the public safety and welfare, to pass laws which make the mere performance of certain prohibited acts, or the failure to perform other commanded acts, unlawful, regardless of the actor’s intention. These laws, variously defined as “police offenses” and as “public welfare offenses,” are justified as a proper exercise of the police power.
Because of the nature of these offenses, it would be almost impossible to secure conviction if the state were required to prove the criminal intent of persons who violated the law.” And yet, in order to protect the public health and safety, it is necessary that violations of these regulations be kept at a minimum.
That was the standard when Sloan wrote his law review article . . . in 1942. Since then both state and federal laws and regulations have increased exponentially. Many of us are now committing state and federal felonies—sometimes several a week—without even realizing we are violating the law.
Some states, however, are making it harder to unintentionally break state laws. Last month Michigan Gov. Rick Snyder signed into law a bill that requires prosecutors — unless a law explicitly states otherwise — to prove that a defendant intended to commit a crime. Ohio passed a similar law in 2014.
These types of “mens rea” (criminal intent) protections are commonsensical, as the proponents in Michigan realized:
“It was pretty common sense around here,” McBroom told The Daily Signal of the effort he led to reform mens rea in Michigan, which he began at the end of 2014 and saw through until the legislation passed last month.
“After learning about it, I quickly realized that this word, this mens rea, is exactly describing the problem so many of us have been after. People can’t follow or keep up with all these regulatory burdens.”
The Mackinac Center for Public Policy, a Michigan think tank that advocates for “free market” policies, reports there are more than 3,100 criminal offenses in state statutes, along with other penalties created by regulatory agencies without legislative approval.
Mackinac, which testified in favor of McBroom’s bill alongside the American Civil Liberties Union (ACLU) of Michigan, says that 26 percent of felonies and 59 percent of misdemeanors in the state lack an “adequate” mens rea provision, meaning a judge or jury doesn’t necessarily need to be convinced that the accused knew they were committing a crime.
Without adequate mens rea protections — that is, without the requirement that a person know his conduct was wrong or unlawful — everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong. This is not only unfair; it is immoral. No government that purports to safeguard the liberty and the rights of its people should have power to lock individuals up for conduct they didn’t know was wrong. Only when a person has acted with a guilty mind is it just, is it ethical, to brand that person a criminal and deprive him of liberty.
Since the Roman era a key legal principle has been ignorantia juris non excusat — “ ignorance of the law excuses not.” Presumed knowledge of the law is the principle in jurisprudence that one is bound by a law even if one does not know of it. But this principle is undermined when we have so many criminal statutes and regulatory offenses that no one could possibly be aware of them all, much less know when they are committing a crime.
Other states should follow the lead of Ohio and Michigan and put protections in place that prevent us citizens from becoming unwitting scofflaws.
The Law was originally published in French in 1850 by Frederic Bastiat and is the work for which Bastiat is most famous. This translation to American English is from 1874.