Criminal intent, mens rea, and the burgeoning prison population

Why are so many people in prison in America?

“Overcriminalization” describes the trend in America – and particularly in Congress – to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives. Criminal law is supposed to be used to redress only that conduct which society thinks deserving of the greatest punishment and moral sanction.

But as a result of rampant overcriminalization, trivial conduct is now often punished as a crime. Many criminal laws make it possible for the government to convict a person even if he acted without criminal intent (i.e., mens rea). Sentences have skyrocketed, particularly at the federal level.

About Overcriminalization, OverCriminalized.com

The [American criminal “justice”] system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.
. . .

Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.

Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little, The Economist, July 24, 2010

For centuries, “guilty mind,” or mens rea, requirements restricted criminal punishment to those who were truly blameworthy and gave individuals fair notice of the law. No person should be convicted of a crime without the government having proved that he acted with a guilty mind—that is, that he intended to violate a law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. In a sharp break with this tradition, the recent proliferation of federal criminal laws has produced scores of criminal offenses that lack adequate mens rea requirements and are vague in defining the conduct that they criminalize.

The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly undertook an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislative process: Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress’s authority to make criminal law to unaccountable regulators.

According to several scholars and legal researchers, Congress is criminalizing everyday conduct at a reckless pace. This study provides further evidence in support of that finding. Members of the 109th Congress proposed 446 non-violent criminal offenses and Congress enacted 36 of them. These totals do not include the many offenses concerning firearms, possession or trafficking of drugs or pornography, immigration violations, or intentional violence. The sheer number of criminal offenses proposed demonstrates why so many of them were poorly drafted and never subjected to adequate deliberation and oversight.

Even more troubling is the study’s finding that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many of them are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.

These failings appear to be related to the reckless pace of criminalization. Congress is awash with criminal legislation, and the House and Senate Judiciary Committees lack the time and opportunity to review each criminal offense and correct weak mens rea requirements. Over half (52 percent) of the offenses in the study were never referred to either judiciary committee. This is despite these committees’ special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law.

Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, by Brian Walsh and Tiffany Joslyn, The Heritage Foundation, May 10, 2010

See TheCapitol.Net’s Legislative Drafter’s Deskbook by Tobias Dorsey, and “Drafting Effective Federal Legislation and Amendments in a Nutshell,” a 90-minute Capitol Learning Audio Course on CD with Frank Burk (Legislative Counsel of the U.S. Senate 1991-1998).

Two primary groups contribute to prison population increase. The first comprises offenders incarcerated for the first time. The size of this group is influenced by a number of factors, including the state’s sentencing system, demographic changes over time, law enforcement resources and other policies. This report makes recommendations to reduce the numbers going into state prisons by enhancing alternatives to incarceration.

The second group, which is also a focus of this report, comprises inmates, who after release from prison re-offend or violate terms of their parole, and are returned to prison. This group is a significant part of any state’s prison population. In New Mexico, 46.7% of felons will be back in a state prison within three years of their release.

Increasing Public Safety in New Mexico Before, During and After Incarceration: New Directions for Reform in New Mexico Corrections,” John Bigelow, Chairman, June 24, 2008 (124-page pdf PDF)

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