Much of the public attention and commentary concerning federal criminal justice reform has focused on sentencing reform, particularly with respect to drug sentences and mandatory minimums. I have previously expressed reservations about such moves. I also have previously stated that federal criminal justice reforms should be broader, and should encompass substantive criminal law reforms that deal directly with how Congress defines federal crimes. Too often, the federal courts – and often the Supreme Court – have done the heavy lifting on curbing federal criminal law. With that in mind, I was pleased to see that the House Judiciary Committee has announced the introduction of multiple bills that are designed to address some nagging – but easily fixable – problems of federal criminal law.
I will have more to say as these bills proceed through the Congress, but for now, I note the Criminal Code Improvement Act of 2015, H.R. 4002. The bill text is here. The House Judiciary Committee markup is here. One of the main provisions in this bill is to provide a default mens rea – “knowing” – for federal crimes that lack a mens rea term. This is a useful and sensible fix, though my hope is that this provision will not serve as a way of punting the responsibility to add a strong mens rea term to future federal crime legislation. Sometimes knowledge is an adequate element, but sometimes the particular conduct demands a stronger term, such as “intentionally” or “willfully.”
But the bill also adds an unusual provision to the same subsection. It states that in the absence of a mens rea term, where a reasonable person would not know that his or her conduct constitutes a federal criminal offense, the Government must prove that the actor knew his or her conduct was criminal or had reason to believe that his or her conduct was criminal. This seems designed to ensure that people are not ensnared in obscure, minor criminal prohibitions that often come with agency regulations – or regulatory crimes, of which there are many at the federal level. I have some questions, though, about how this provision would function. On the one hand, when viewed in the context of the entire subsection, it appears to do away with strict criminal liability at the federal level. As someone who generally opposes strict liability, I would welcome that development. But it also functions as something of a mistake of law provision. Traditionally, it is said, ignorance of the law is not an excuse. But that is an overstatement. Sometimes ignorance can be a defense, such as when it negates the mental element of the crime, or when the criminal law specifically requires legal knowledge (such as in willfulness offenses), or, as in some states, where a person reasonably relies on an official interpretation of the law. This provision seems to be a kind of hybrid of these distinct legal doctrines of mistake and of avoiding strict liability.
Again, I will dig in deeper, and once I have had a chance to wrestle with these bills, I will have further comment. But for now, these are sensible, though modest, efforts to address over-criminalization at the federal level.