Mens Rea (Criminal Intent) Not Necessary
The title of this post is taken from a recent article detailing the American way of criminal justice, its ever-expanding number of criminal laws, and its diminishing need for criminal intent. Whereas a vast majority of crimes used to be under state and local laws, the federal criminal machine has slowly expanded its reach.
From the original article:
As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent.
These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.
The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.
There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.
Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.
The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”
A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.
If the professionals who practice federal prosecution and defense cannot count the number of federal criminal laws that exist, how are ordinary American’s supposed to know if their hobby is a crime? If this sound ridiculous, just read the story of Eddie Leroy Anderson of Craigmont, Idaho who was indicted, along with his son, for going arrowhead hunting near their favorite campground.
This trend is frightening to say the least. However, when confronted with this level of over-criminalization, it is no wonder why America incarcerates 743 citizens per 100,000. For comparison’s sake, Canada incarcerates 117, Sweden incarceration 78. Even China, with a population of 1.35 Billion people, has a total incarcerated population of 1.6 million (122 per 100,000) while the U.S. has 2.3 million.
To see total world rankings, visit the International Centre for Prison Studies.