barsFair notice of the law is a basic principle that separates liberal democracies like the United States from more authoritarian governments. Fair notice is an especially critical due-process check against government’s power to criminally prosecute. Government must not only prove that a person did the unlawful act, but also that he intentionally engaged in wrongful conduct or knew the conduct was illegal—that it, that he had a guilty mind. So why, then, is the Obama Administration and other elected representatives opposing reforms to ensure that federal criminal laws include a clear criminal-intent standard?

The idea being advanced seems far from revolutionary or controversial, which may explain why politicians and interest groups of every ideological stripe support it: Federal laws with criminal provisions must require prosecutors to prove that the accused possessed the mens rea, or culpable mental state, to commit a crime. If a law lacks such language, then a default intent provision will apply, such as showing that the defendant acted “willfully” or “recklessly.”

A January 20 Senate Judiciary Committee hearing offered the Obama Administration and U.S. Senate skeptics a platform to spotlight their supposed reasons for opposing a default mens rea standard: Requiring proof of intent will hamper white-collar criminal enforcement and “undermine public health and safety, including laws that protect our environment and ensure food and drug safety.”

Such demagoguery is quite revealing of the executive branch’s attitude toward the use of criminal sanctions in the context of free enterprise. Prosecution has become a tool of business regulation. If prosecutors are forced to prove a standard of criminal intent more demanding than mere negligence, then white-collar criminal prosecutions become a significantly less convenient way to order business conduct.

In a December 2008 WLF Legal Opinion Letter, Georgetown University business professor John Hasnas cogently explained why the criminal law is a poor mechanism for business regulation:

Regulation is not concerned with punishing wrongdoing, but with ordering human interaction so as to improve social welfare. To achieve this end, regulation must prohibit not merely conduct that is wrongful in itself (in lawyers’ Latin, malum in se), but any conduct that would thwart the overall regulatory scheme even when it is not wrongful in itself (malum prohibitum). When such regulatory offenses are embodied within the criminal law, the assumption that everyone is on notice of what the law requires—that ignorance of the law is no excuse—does not hold. Citizens may violate malum prohibitum laws without personal fault–without a guilty mind.

Thousands of federal laws and hundreds of thousands of federal regulations can be enforced not only through administrative and civil sanctions, but also criminally. The ease with which one can run afoul of those laws and rules, many of which are hyper-technical and vague, necessitates a clear mens rea standard. Instead, as the mens rea section of WLF’s recently released Timeline: Federal Erosion of Business Civil Liberties, Third Edition exhibits, aggressive prosecutors and compliant judges have gradually eased government’s burden of proving criminal intent. As a result, government has prosecuted enterprising citizens for averting a flood in a military retirement home, importing lobsters in plastic bags instead of boxes, and securely storing materials for an innovative fuel cell while seeking funds for the invention in another state. In each of those instances, “public health and safety” and “the environment” could have been sufficiently protected through civil or administrative measures, but the erosion of mens rea made it easier, and more attractive, to use the criminal hammer instead.

The erosion of mens rea also has led to the prosecution of individuals based solely on their status within a business enterprise, rather than their culpability. Under laws such as the Food, Drug & Cosmetic Act and the Clean Water Act, executives and supervisors can be prosecuted for the actions of their employees, even if the employees acted alone and in clear violation of company compliance policies. Such status-based prosecutions not only fail to advance the goals of the criminal law—deterrence and punishment of culpable actors—but they also create disincentives for voluntary compliance and discourage talented business leaders from working in highly regulated industries.

The kudzu-like spread of laws and regulations that criminalize everyday business activity has been a significant factor in the stagnation of America’s economy. Elected officials in states like Ohio and Michigan, where default mens rea laws were recently adopted, grasp that reality. Those lawmakers understood that people who work in our free-enterprise system—i.e. employees—bear a disproportionate risk of being punished for unintentionally committed crimes.

A default mens rea standard sweeps no laws or regulation off the books. It applies equally to white-collar crime and other crimes. It leaves federal lawmakers free to adopt laws with negligence as the standard of intent, or even laws that require no proof of intent. Lawmakers must simply spell out such a mens rea, or lack thereof, clearly. Such transparency is essential for Americans to be on notice of what is and is not a crime. Fundamental notions of due process demand no less.

Also published by on WLF’s contributor page.