Should Ignorance of the Law Excuse Criminal Conduct? Congress Says Yes.

Should Ignorance of the Law Excuse Criminal Conduct? Congress Says Yes.

If you commit a federal crime but the Government can’t prove you knew you broke the law, should you go to jail?  It all depends who wins the latest clash between President Obama and Congress.

The White House and its Department of Justice believe that the old adage “ignorance of the law is no excuse” is under attack by a group of bipartisan House members who want to reform the “mens rea” (i.e., intent) requirement for federal crimes. http://www.huffingtonpost.com/entry/white-collar-crime-white-house-response_564dd06be4b00b7997f95240. The proposed legislation would establish a “default state of mind proof requirement” in federal criminal cases: “if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.” https://www.congress.gov/bill/114th-congress/house-bill/4002/text.  The reality is that this would mostly apply to a subset of white collar criminal offenses, not violent crimes.

Like most things these days, the significance of this proposal is framed very differently depending which side you are on.

Critics claim the legislative change – buried in otherwise popular criminal justice reform – is going to undermine federal prosecutions of white collar cases, where negligence, gross negligence, or recklessness can form the basis for prosecutions of corporations and their executives.  http://www.thefiscaltimes.com/Columns/2015/11/20/Congress-Making-It-Even-Harder-Crack-Down-White-Collar-Crime. They point out that those at the top of corporate malfeasance hardly need more insulation from prosecution. http://myjournalcourier.com/news/88511/editorial-weakening-laws-for-white-collar-crime-not-reform.  This is an appealing position, especially given the lack of prosecutions of individuals after the financial meltdown.  And there are plenty of cases where most people would agree that gross negligence should lead to criminal penalties; think of the recidivist drunk driver who gets behind the wheel after ten beers and then kills someone.

On the other hand, those in favor say that it’s wrong to prosecute someone unless they “acted with a guilty mind.” http://www.nationalreview.com/bench-memos/424374/senator-hatch-reaffirms-importance-mens-rea-reform-jonathan-keim.  That seems pretty reasonable given basic notions of justice and fair play.  In addition, if this would just be a “default,” Congress could always write a lesser intent requirement into white collar criminal statutes and hold corporate fraudsters to a stiffer standard.  The support of someone like Rep. John Conyers and the fact that 14 states have passed similar legislation make it hard to dismiss this purely as a bow to corporate interests. http://politic365.com/2015/11/19/rep-john-conyers-supports-criminal-intent-bill-catches-hell-from-left/.

While the exact impact of the legislation is difficult to discern because certain key phrases are left undefined, it would clearly make it more difficult for the Government to obtain convictions in certain cases. It would also lead to significant litigation in some white collar cases where the Government would be on the defensive to show it has the requisite evidence. These facts alone suggest that the proposed “mens rea reform” would be an important tool for white collar criminal defense attorneys…if it ever becomes the law.