Baker and Huan on Federal Overcriminalization and Mens Rea

Volume 14, Issue 2 of the Federalist Society's magazine, Engage, includes an article by John Baker Jr. and William Huan entitled, The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime.  They write:

We argue that an issue at the core of federal criminal law reform is the restoration of the mens rea requirement. Addressing the erosion of mens rea requires appreciating the initial importance of mens rea, and the connection between that erosion and the growth of federal criminal law. This erosion of mens rea has been toxic to the moral legitimacy of federal criminal law. Finding a workable way to reassert mens rea within the context of so many complex and differently drafted federal criminal provisions is a challenging—but necessary—reform.

The article concisely states the issue of the overfederalization of criminal law and how many of these crimes lack mens rea (guilty mind) requirements.  Mens rea typically requires that people know the facts that make their conduct illegal, and in this way mirrors the notion that individuals who are found legally guilty of crimes should also be morally guilty.  These standards may vary, which requires the prosecution to prove that the defendant carried out the illegal act intentionally, knowingly, or recklessly (to name a few standards), depending on the type of crime charged.  Many federal standards lack mens rea standards.

One area of confusion that I am noticing in this article as well as in other discussions of federal overcriminalization stems from the reality that many of the crimes on the federal level are malum prohibitum.  This means that the crimes are wrong only because they are prohibited by law (as opposed to malum in se crimes that are wrong in themselves such as murder, rape, burglary, etc.).  Critics (including Baker and Huan) emphasize this point and illustrate the phenomenon with examples of crimes like coming in contact with migratory birds or feeding endangered animals.

In malum in se cases, mens rea requirements typically apply to the facts that make the conduct illegal and not the fact that the conduct is illegal.  If the defendant does not realize that the conduct is unlawful, this does not constitute a defense.  In federal criminal cases, however, most criticism of federal overcriminalization relates to the concern that defendants do not realize that their conduct is illegal.  Highlighting the technicality of malum prohibitum crimes, critics argue that prosecutors should be required to prove that the defendant had some level of knowledge that his or her conduct was illegal, or some intent to violate a law.  Accordingly, claiming that one is simply calling for mens rea requirements in federal crimes is misleading.  What critics are in fact calling for is an added element for the prosecution to meet -- that the defendant knew that his or her conduct was illegal.

Despite this problem (which appears in both this article and in the arguments of many other critics), the article's treatment of the overall issue of federal overcriminalization it is concise and approachable.  I therefore recommend the article to people interested in an introduction to the issue of the overfederalization of crime (despite my praises for overfederalization that I express here).

(H/T: Bill Otis of Crime and Consequences via the CrimProf Blog)