{"id":34031,"date":"2015-12-24T04:00:13","date_gmt":"2015-12-24T09:00:13","guid":{"rendered":"http:\/\/quotulatiousness.ca\/blog\/?p=34031"},"modified":"2015-12-23T21:31:28","modified_gmt":"2015-12-24T02:31:28","slug":"so-what-about-that-mens-rea-stuff-anyway","status":"publish","type":"post","link":"https:\/\/quotulatiousness.ca\/blog\/2015\/12\/24\/so-what-about-that-mens-rea-stuff-anyway\/","title":{"rendered":"So what about that Mens Rea<\/em> stuff anyway?"},"content":{"rendered":"

Scott Greenfield<\/a> on an important legal quirk:<\/p>\n

The inclusion of a specific mens rea<\/em> requirement is common in criminal laws. For example, first degree murder usually requires the \u201cintent to kill,\u201d whereas lesser degree murders or manslaughters may only require \u201crecklessness.\u201d<\/p>\n

So why do some laws lack a mens rea<\/em> requirement? They tend (though are hardly so limited) to be regulatory laws that are backed up by criminal sanctions. There are tens of thousands of laws that demand people do or not do some remarkably inconsequential act, such as not throwing undersized fish over the side of a boat.<\/p>\n

The way Congress compels compliance with these trivial regulations is to enforce it with a criminal sanction, such as \u201cfailure to do X is a felony punishable by up to seven million years imprisonment.\u201d And there are, literally, tens of thousands of opportunities to visit Club Fed.<\/p>\n

These laws have been subject to strict liability, not because they are so evil and harmful, as they are almost invariably malum prohibitum<\/em> laws, wrongs only because Congress says so, not because they reflect some inherent immorality. The problem, as was made clear in the fish case or the Gibson guitar case, is that no one knows all the tens of thousands of regulations the government enacts, creating a trap for the unwary when there is no rational reason to believe that conduct is wrong, no less criminal.<\/p>\n

Of course, as the DoJ points out, the maxim that \u201cignorance of the law is no excuse\u201d (except if you\u2019re a cop) has been around for centuries. What hasn\u2019t been around for centuries, however, are the tens of thousands of trivial regulations that can land someone\u2019s butt in prison just as well as a nice drug conspiracy. So Main Justice didn\u2019t show Sensenbrenner\u2019s bill the love.<\/p>\n