matt_kaiser300Guest Commentary

Matthew G. Kaiser, Partner, Kaiser, LeGrand & Dillon PLLC

Editor’s Note: This is the second in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

To commit a crime, normally you have to have met two requirements. First, you have to have done something bad. Second, you have to have done the bad thing with a bad intent.

Take mortgage fraud. If you write on your mortgage application that you earn $1,000,000 a year, but you only earn $100,000, you’ve committed mortgage fraud if that’s what you intended to submit and you knew it was false. If, though, you’re using an online application and the “0” key on your keyboard was stuck so an extra zero appeared, you haven’t committed mortgage fraud, you’ve just made a mistake; you have no bad intent.

Accidents happen in lots of ways, which is why something a person does by accident is generally not supposed to be a crime. But that commonsense intuition has been undermined as the mens rea requirement—the requirement that a guilty mind exist before some course of conduct can be a crime—is weakened.

As a result, it’s now easier than ever to become an accidental criminal.

Each branch of government has contributed to this problem in its own way. Congress, in it’s frequent quest to seem ever more tough on crime, has passed more and more statutes that create federal crimes that have no explicit mens rea requirement or do not require a guilty mind at all. The National Association of Criminal Defense Lawyers and the Heritage Foundation did a study of the legislative activity of the 109th Congress. Considering only proposals that did not involve violence, drugs, guns, pornography, or immigration, they found that 446 new federal crimes were proposed. Of these, 57% did not have an adequate mens rea requirement. And, lest you think these were among the many proposals Congress leaves on the cutting room floor each session, 23 of them ultimately became law.

As the Washington Legal Foundation’s Timeline vividly lays out, the judicial branch has played a role too, slowly eroding the requirement for a guilty mind. The U.S. Court of Appeals for the Ninth Circuit, in United States v. Weitzenhoff, for example, held that a prosecution for a Clean Water Act criminal provision doesn’t require knowledge that what was happening violated an environmental regulation. The U.S. Supreme Court, in United States v. Park, created criminal liability for a corporate officer who is responsible for conduct of any company employee about which she was unaware, but which was later determined to be criminal. The courts have had an opportunity to reign in the Department of Justice and Congress by affirming the requirement of a guilty mind’s place in our criminal statutes as a matter of due process. They’ve largely gone the opposite direction.

The Department of Justice has taken advantage of the opportunity to prosecute with a lower standard of intent. In response to public concern about corporate conduct, they have prosecuted executives and others for conduct that was not the fruit of an evil mind.

The Quality Egg case referenced on the Timeline is an excellent example of the problem of how the lack of mens rea can land unsuspecting people in prison.

Two men ran Quality Egg. That company produced, as its name suggests, eggs. Some of those eggs were contaminated with salmonella, though no one at the company knew it. It’s a crime to put a contaminated egg into interstate commerce, regardless of whether you know the egg is contaminated—that’s a strict liability crime.

So, someone at Quality Egg—the person who actually put the bad eggs into interstate commerce—committed a crime, even though he didn’t know what he was doing was criminal. But the men who ran the company, the DeCosters, were the ones who ultimately were convicted of that crime. Even though they didn’t put the eggs into the stream of commerce, they were in charge of the company. So they were responsible corporate officers under Park.

What made the case truly surprising was that the Department of Justice sought—and the judge imposed—prison time. The DeCosters were sentenced to three months in prison for a crime where they didn’t do anything criminal (they didn’t put the bad eggs into commerce) and where they didn’t intend to violate any law. Instead, they were sentenced to prison merely because of the position they held in a company.

Three months is, to be sure, not the most outrageously long sentence handed down by a federal judge. But it’s also three months longer than anyone wants to spend in prison. Especially when the person didn’t do anything wrong in the first place.

Quality Egg shows why mens rea reform is desperately needed. Executives shouldn’t fear prison simply due to their status as executives.

Tomorrow: DOJ Prosecution Policies, by Michael Volkov