The "Guilty Mind" principle eliminates a lot of "crimes"

January 30, 2016 6:48 PM

Everyone commits crimes. There are so many laws out there making what's relatively banal behavior criminal if looked at in that light. Apparently a longstanding legal principle tho has been the idea of a "guilty mind," which has gotten somewhat lost recently. The idea is that if you can't write a law where it's possible for a person to commit a crime without meaning to commit a crime. More in the link.
posted by BradyDale (40 comments total)

In other words, ignorance of the law is now excusable.
posted by mccarty.tim at 7:07 PM on January 30, 2016

Whenever people talk about proposing a new law, or changing an existing law, it's often hard to tell what's really going on; of course they're going to dress it up in salesmanlike language of how good this idea is and how it furthers Truth, Justice, and the American Way. My smell-a-rat sense was getting mixed signals on that front all through this article and I couldn't get a strong read on it. That is, until toward the end:

So McBroom’s legislation deals almost exclusively with laws related to regulatory actions.

and

“The crimes being talked about impact 0.08 percent of the federal prison population, and we believe they would make it difficult to enforce bedrock regulatory safeguards in areas of environmental, health, and consumer safety.”

Yeah, just neoliberalism having another go at pickpocketing the commons. Say, isn't Michigan the state where the governor-appointed emergency manager of Flint failed to provide a basic human right like water? Weakening regulatory safeguards is downright crazy talk.
posted by traveler_ at 7:10 PM on January 30, 2016 [47 favorites]

"Obviously, my client did not intend to poison the city's drinking water."
posted by straight at 7:19 PM on January 30, 2016 [37 favorites]

At the federal level, opponents of requiring more laws to have a willful requirement standard argue that it would make it more difficult to prosecute corporations that commit fraud, taint food, or pollute the environment, because these violators could allege they didn’t intend to break the law.

I support the idea that most crimes should have a mens rea requirement, but I'd also be fine if that requirement only applied, for the most part, to natural persons and not abstract legal entities like corporations.

Weakening regulatory safeguards is downright crazy talk.

Then maybe those safeguards should be civil, and not criminal? It's obviously an absurd and unjust result when someone goes to jail for stuff like "deliver[ing] scrap tires to what he believed to be a legal depository. But the facility lacked a license."

We all innocently break the law all the time, there should be more keeping us out of jail than the goodwill of prosecutors and their inability to know everything and go after everyone. This is a good idea, let's not let political polarization ruin it.
posted by cosmic.osmo at 7:21 PM on January 30, 2016 [3 favorites]

"The idea is that if you can't write a law where it's possible for a person to commit a crime without meaning to commit a crime. "

Respectfully, I suspect this may have been posted before an edit was complete. Try again? I don't want to put words in your mouth. Um, post.
posted by mwhybark at 7:22 PM on January 30, 2016 [11 favorites]

*rips tag off mattress*
posted by jonmc at 7:30 PM on January 30, 2016 [19 favorites]

It's a weirdly written article, but the substance of what McBroom is trying to do is fairly clear:

"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."

and

"McBroom says that he was able to win over skeptical prosecutors by not including the criminal, motor vehicle, or public health codes in the legislation."

This is reforming the code so that business doesn't have to worry about criminal liability unless they leave actual proof of intent, but making sure not to make any changes that would slow down cops and prosecutors. Strict liability for citizens, highest burdens of proof for business doesn't sound like a great system.

That being said, the idea of recklessness as the default culpability requirement when no other mens rea is stated in the statute has been around for decades. It's part of the model penal code which was written in the 1960's I believe.
posted by skewed at 7:31 PM on January 30, 2016 [17 favorites]

I've been thinking about mens rea in the context of the Anna Stubblefield case.
posted by ClaudiaCenter at 7:37 PM on January 30, 2016

Yeah, mens rea is a thing. Has been for a long time.
posted by yhbc at 7:41 PM on January 30, 2016

I'm no lawyer, but in my HS law school I'm pretty sure I was taught that mens rea doesn't refer to intent to commit a crime, but intent to commit the criminal act. So if you're running an illegal daycare centre, the issue is "did you mean to have these kids in your house" not "did you mean to break the daycare law." So like if kids broke into your house every morning and you knew nothing about it, no mens rea. If you had 20 kids in your house on purpose and never bothered to look up the required adult:child ratios, then yes mens rea because the criminal act was having all those kids there and you did intend to have all those kids there.

Lawyers, did my HS law teacher (like pretty much all my HS teachers) fail me?
posted by If only I had a penguin... at 7:49 PM on January 30, 2016 [21 favorites]

This is on the Daily Signal, of which a Google search turns up, right there in the text of the first hit:

"The Daily Signal is the multimedia news organization of The Heritage Foundation covering policy and political news, conservative commentary and analysis."

So yeah, they're naturally going to try to build support for legal changes that support business. That's what they were made for.
posted by JHarris at 7:53 PM on January 30, 2016 [26 favorites]

Ah, okay, now things are making more sense. The "Daily Signal" is a media outlet of the Heritage Foundation. And the reason this is news at all at the federal level is made clear by this article linked to in the OP from the same author as the OP. Congress is debating criminal law reform, and the Republicans are threatening to block passage unless the bill includes changing some criminal statutes that currently do not require intent so that they do. I don't have time to look into this because I don't want to spend my whole weekend being mad at Republicans, but I'm sure the target of these changes is 90% or aimed at white collar criminal statutes which are currently strict liability (that is, prosecutors have to prove the defendant engaged in certain conduct, not that they intended to do so)
posted by skewed at 7:59 PM on January 30, 2016 [8 favorites]

I'm not a criminal lawyer, but there are different levels of intent (or no intent) depending upon the statute and the case law. And the intent can be connected to the action (sometimes called general intent) or to the result (specific intent), depending.
posted by ClaudiaCenter at 8:02 PM on January 30, 2016

My law school diploma started steaming and I had to close the tab.
posted by 1adam12 at 8:05 PM on January 30, 2016 [5 favorites]

cosmic.osmo: Then maybe those safeguards should be civil, and not criminal?

They're both, and that's important. It prevents companies from being able to buy their way out of laws they'd rather just break, allowing substantive requirements as responses to violations. Probably a bunch of other major reasons an Environmental Lawyer would know. But for example:

In addition to the civil penalties, Walmart is required to implement a comprehensive, nationwide environmental compliance agreement to manage hazardous waste generated at its stores. The agreement includes requirements to ensure adequate environmental personnel and training at all levels of the company, proper identification and management of hazardous wastes, and the development and implementation of Environmental Management Systems at its stores and return centers. Compliance with this agreement is a condition of probation imposed in the criminal cases.

From this FBI press release.

Meanwhile, it sounds like this law is backed by the Koch's, and their support has a specific trigger that got them on the subject: Koch Petroleum Group was caught bypassing some control equipment, venting benzene straight to the air, and falsifying documents to cover it up. In this other article on the Huffington Post, they claim this law would eliminate criminal recklessness or negligence as causes for going after the decision-makers, instead limiting charges to, say, the poor shlub who welded on the bypass, but not the executive who maybe told them something like "you come to me with benzene this and separator that; I say just get the line back into production by Thursday!"
posted by traveler_ at 8:09 PM on January 30, 2016 [20 favorites]

If only I had a penguin, your teacher had the right idea as far as general criminal intent goes, which is one type of mens rea. A general intent statute about running a daycare would probably require proof that the defendant intended the kids to be there, rather than intending to run an illegal daycare. Some laws are specific intent, which for a daycare statute would be something like "brought kids to a dwelling with intent to run a daycare".

But beyond intent, there are other types of criminal culpability. Some crimes require proof that the person acted with knowledge that the bad thing would occur, some with recklessness as to the bad thing occurring, and some with negligence as to allowing the bad thing occur. Strict liability crimes require only proof that the bad thing occurred, and are usually used for traffic infractions and some regulatory laws.
posted by skewed at 8:15 PM on January 30, 2016 [3 favorites]

Thanks, skew. I remember strict liability and absolute liability, too. I remember gun crimes were the example.
posted by If only I had a penguin... at 8:18 PM on January 30, 2016

I'm kind of agreeing with this, maybe for misinformed reasons on which I'm happy to be corrected. By my view, we have a lot of "regulations" (in quotes because they function as law) that have criminal sanctions attached and are strict liability but are also easy to do accidentally. Picking up a feather from a bald eagle—can you identify a bald eagle feather without searching for images?—and taking it home is unlawfully removing a part of a protected species. Sucks to be you that you didn't know it's a feather from a protected bird. (You're doubly screwed if this happens on federal land.)

The aforementioned "I took my tires to someone who said they were licensed and got to rot in jail for it" is also a problem to me. As is, contrary to the first post in the thread, "ignorance of the law." I'm as liberal as the day is long and I have a concern that our laws have grown beyond the bounds of knowable, at least for the reasonable individual to know where such a line lies. If you've any assets at all, it seems like the choice is "guess" or "have an attorney on retainer."
posted by fireoyster at 8:36 PM on January 30, 2016 [2 favorites]

The Illustrated Guide to Law has a section on strict liability, discussing the problem of overcriminalization when regulators add criminal penalties to laws instead of civil ones, and leave out a mens rea requirement. On preview: fireoyster, they start with your "bald eagle feather" example.
posted by Rangi at 8:37 PM on January 30, 2016 [3 favorites]

Thank you, Rangi, that comic is exactly what I was thinking of but couldn't remember where I got the thought.
posted by fireoyster at 8:38 PM on January 30, 2016

Picking up a feather from a bald eagle—can you identify a bald eagle feather without searching for images?—and taking it home is unlawfully removing a part of a protected species. Sucks to be you that you didn't know it's a feather from a protected bird. (You're doubly screwed if this happens on federal land.)

Ok, I'm pushing my HS legal education to the limit, but I would think the defence there is mistake-of-fact. Mistake of fact means no mens rea. And again, it's completely unrelated to ignorance of the law.
posted by If only I had a penguin... at 8:43 PM on January 30, 2016

The problem, If I only had a penguin, as I understand it is that the Migratory Bird Treaty Act contains no mental state requirement at all. It is a strict liability crime. "If you did x, then you are guilty and shall be punished as y." There's no mental state to negate because the law in question does not weigh that when concluding your guilt or non-guilt.

I have no problem with regulatory penalties, like doing construction without a permit. (How many people here have replaced a hot water heater themselves. Did you know that most jurisdictions require a permit, an inspection, and sometimes that the work be done only by a licensed contractor?) I would very much like the fines to be proportional to income or gross revenue. But the possibility of going to jail over a regulatory burden that doesn't threaten public safety or welfare should be greatly lessened.
posted by fireoyster at 8:52 PM on January 30, 2016

I'm as liberal as the day is long and I have a concern that our laws have grown beyond the bounds of knowable

And that's probably why the ACLU testified in support of the change.
posted by jpe at 9:10 PM on January 30, 2016 [1 favorite]

Ok, I'm pushing my HS legal education to the limit, but I would think the defence there is mistake-of-fact. Mistake of fact means no mens rea

Mistake of fact isn't necessarily a defense to a strict liability offense, though. For example in most states you can't use "I really though she was 19" to a charge of statutory rape for sleeping with a 16 year old. There are some exceptions, of course, but in general.
posted by Justinian at 9:49 PM on January 30, 2016

jpe: And that's probably why the ACLU testified in support of the change.

The ACLU of Michigan did; the national ACLU is saying:

"Show us what laws would be impacted so that we can then make a reasonable and intelligent determination about whether we support the bill or not. But to potentially change every criminal statute that's on the books -- that just makes no sense and it's dangerous."

fireoyster: But the possibility of going to jail over a regulatory burden that doesn't threaten public safety or welfare should be greatly lessened.

You know and I would support a reform of the gotcha laws that can bite small-time ignorance like the tire anecdote or the endangered feather anecdote. But my aforementioned smell-a-rat sense goes off pretty strongly on stories like those, because they're so often used as figleaves for bills like this one that are really aimed at cases like the Koch Petroleum Group deliberate benzene pollution coverup—I mean that's so gratuitously evil it's like something out of a Captain Planet episode.
posted by traveler_ at 9:54 PM on January 30, 2016 [20 favorites]

It's usually a good assumption that anything the Mackinac Center for Public Policy supports is ultimately evil.

The ACLU getting on board made me question that, but traveler_'s comment weakens that by pointing out that the national ACLU isn't actually onboard.
posted by edheil at 10:12 PM on January 30, 2016 [1 favorite]

Nope. Just another way to try to get his pals outta jail. Only poor and black people belong in jail.

I agree.

It leaves draconian laws on the books and increases the discretion for their enforcement and prosecution. God forbid we actually take a bad criminal law off the books entirely, don't want to look soft.

This is the triumph of common sense over reason.
posted by thebestusernameever at 10:19 PM on January 30, 2016

This is the triumph of common sense over reason.

Vote for Trump.

yes, quoting myself (for context).
posted by thebestusernameever at 10:22 PM on January 30, 2016

This wasn't just one dude with a few spare tires.

PEOPLE v. SCHUMACHER


In the present case, the evidence was sufficient for a rational fact-finder to conclude that defendant knowingly and voluntarily caused more than 500 scrap tires to be delivered to Robinson Farms.

Still reading through the case, so I don't know all the specifics yet.
posted by MysticMCJ at 10:47 PM on January 30, 2016

Not to say that there was or was not intent in this, just that there's more to it than it seems.
posted by MysticMCJ at 10:48 PM on January 30, 2016

Conservative outfits are great at coming up with stories that show how jes' folks are getting screwed by the man, and boy isn't it so unfair and shouldn't we fix this? Except it just so happens that the fixes would really, really help big businesses—and the jes' folks stories are often questionable in the first place, as MysticMCJ is already illustrating.

And what the heck is up with the Democratic state representative mentioned at the start of the article, who apparently did her Republican colleague the big favor of cluing him into the concept of mens rea in the first place—then went and supported this bill? She's described as a defense attorney, but I can't find out much about her legal career, except that she used to be a union lawyer. Unless she has, say, polluters for clients, I can't understand why she'd back this law.
posted by Conrad Cornelius o'Donald o'Dell at 11:21 PM on January 30, 2016 [8 favorites]

OK - So it looks like in that particular case, it was actually a second offense for that specific violation. Kind of hard to express ignorance on your part at that point. There's a lot of info lacking, but there's enough pointing to shenanigans here that I don't think you can paint this as some poor guy who got jail time and a 25K fee - very close to the maximum sentence. The punishment is imprisonment or a fine or both - the actual punishment in this case, both, was at a discretion of the judge. It also went through the court of appeals. There's much more going on here than is apparent.

Now the childcare thing is pretty fucked up, but the state was in the process of changing that law, the governor specifically asked that it be amended, the law ended up being changed, and the only thing that happened was that she got a letter and found out that one of her neighbors sucks.

So both cases here are bullshit arguments for changing the law in a way that disproportionately benefits businesses who wish to skirt regulation or transfer liability to a lower level employee.
posted by MysticMCJ at 11:27 PM on January 30, 2016 [6 favorites]

Seriously, if the best you can come up with for justifying a massive percentage of the existing base of laws is two shit examples like this, then your real motives are less than noble.
posted by MysticMCJ at 11:28 PM on January 30, 2016 [3 favorites]

So, if not knowing stuff means you're not responsible for the results of your ignorance, can we require people to know stuff before they are able to weild power? So, to be a CEO or president or upper-management of, say, a utility company, can we require some kind of engineering knowledge / other education?
posted by amtho at 11:31 PM on January 30, 2016 [1 favorite]

Oof, I meant for justifying a CHANGE to. Entirely changes the meaning of my last comment.
posted by MysticMCJ at 11:35 PM on January 30, 2016

I'm all for making the mental elements of statutory offences clear, but this article is rubbish. Let's look at the examples he gives:

McBroom and Mackinac point to real-life examples where people were prosecuted, or threatened, for breaking laws they didn’t know existed. In a highly publicized case from 2009, Lisa Snyder, a stay-at-home mother who would routinely watch her neighbors’ kids before the school bus arrived, was warned by the Michigan Department of Human Services that she was engaging in illegal child care because she didn’t have a daycare provider’s license to supervise the children.

How is mens rea relevant to people being "prosecuted, or threatened, for breaking laws they didn’t know existed"? Ignorance of the law isn't going to be a defence whether or not the prosecution needs to prove mens rea.

From the scrap tyre appeal decision MysticMCJ linked to:

The plain language of § 16902(1) places the burden on the person delivering scrap tires to determine that the recipient site is one of the enumerated lawful places to dispose of scrap tires.   Rather than relying on Kamala Robinson's assurances, defendant could easily have discovered that the site's last license for accepting waste expired in 1972 and that neither the local health department nor the state of Michigan had issued a permit for the site for almost 30 years.   Thus, defendant had “the opportunity to ascertain the true facts,” and this case demonstrates “the difficulty encountered by prosecuting officials in proving a mental state.”

Yeah. Also, Schumacher dumped hundreds of tyres and this wasn't the first time he'd been convicted of the same offence. Couldn't do better than that?
posted by A Thousand Baited Hooks at 11:52 PM on January 30, 2016 [1 favorite]

Yes, I knew something was up when I read "So McBroom’s legislation deals almost exclusively with laws related to regulatory actions." Quite the bait and switch.
posted by rebent at 6:51 AM on January 31, 2016

but who will stand up for womens rea?
posted by quonsar II: smock fishpants and the temple of foon at 9:47 AM on January 31, 2016

So the idea here is basically, "I didn't mean to break the law when I killed that guy and/or systematically ruined his life over a labor dispute--I just wanted to cut my losses, which is a perfectly legitimate thing to do. So I'm not culpable for breaking the law because I'd give anything if I could do my business without having to break the law. Look into my eyes: you see the sincerity there, right guys?"

Yeah, that sounds legit.
posted by saulgoodman at 10:00 AM on January 31, 2016 [3 favorites]

The extent to which this is a "get out of jail free" card for businesses to skirt regulations cannot be overstated. Obviously and as mentioned this removes any incentive to understand regulations or worry whether your contractors are following the rules--why do extra work that puts you more at risk?

But beyond that if you can get your counsel to write an opinion saying your novel scheme to run a dangerous / exploitive / polluting workplace probably meets the the regulatory requirements as written given existing precedent because there's never been an opinion against it, you can basically do anything you damn well please, as sinister as you like, and wave the lawyers' opinion around to show you knew what you were doing but weren't 100% sure it was illegal.
posted by mark k at 11:44 AM on January 31, 2016 [3 favorites]