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As ‘Mens Rea’ Erodes, More Become Unwitting Criminals

September 28, 2011 by  

As ‘Mens Rea’ Erodes, More Become Unwitting Criminals

A Wall Street Journal report on Tuesday outlines the decline of the consideration of criminal intent in prosecutions in America as the Federal criminal code continues to swell each day.

The WSJ reports that in 1790, the first Federal criminal law passed by Congress listed fewer than 20 Federal crimes. The list has since grown to 4,500 Federal statutes, plus thousands more embedded in Federal regulations, many of which have been added to the penal code since the 1970s. This has made it easier than ever for citizens to unknowingly break a law, and they are more and more often prosecuted without the consideration of mens rea, Latin for proof of a “guilty mind.”

More than 40 percent of nonviolent offenses created or amended during two recent Congressional sessions had “weak” mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers.

Many believe that while ignorance of the law was at one time a non-defense in criminal matters, legislators have made it impossible to know and understand every law in the criminal code.

Supreme Court Justice Antonin Scalia has criticized lawmakers for passing too much “fuzzy, leave-the-details-to-be-sorted-out-by-the-courts” legislation that has led to massive increases in arrests in the United States. About 80,000 people were arrested and subject to jail time or fines in 2010.

Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • s c

    Justice Scalia brings up quite a point, folks. It’s that same, disgusting mentality that Queen Nancy barfed up when she said ‘we have to pass the bill to see what’s in it’ [Ogagme's healthcare scam, if you forgot]. It seems more than fair to me that she should be guilty of at least one serious misdemeanor for making such an incredibly stupid comment.
    What that mentality does is to clog the legal system with garbage in the hope that many friends will get rich from the influx of more and more “crimes,” and America will suffer more and more at the hands of schizophrenics who won’t hesitate to enslave America at any cost.
    Et tu, Nancy. Et tu, W H. If it applies to you, et tu.

  • bill jones

    “There’s no way to rule innocent men.
    The only power government has is the power to crack down on criminals.
    Well, when there aren’t enough criminals, one makes them.
    One declares so many things to be a crime
    that it becomes impossible for men to live without breaking laws.”
    —Ayn Rand

    • wandamurline

      My message to this overbuldging, overextended, cesspool called politicians in Washington is stated at Rhett Butler said, “Frankly I don’t give a damn”….I am tired of all this constitution tromping and America is going to have to stand up to this tyranical government. Our forefathers envisioned this when they wrote the Constitution and Bill of Rights, and they gave We The People the tools to stop a tyranical government….actually they told us it was our duty to do so.

  • DavidH

    Time to water the Tree of Liberty is at hand…

    • chuck conly

      Do tyrants have blood?

  • chuck conly

    Most of them are “environmental” crimes. Enacted for the Eco-wackos. Mowing, or not mowing your lawn—planting a garden, without a permit–or mitigation! “a fancy term for paying a bribe”.

  • dan

    PC Thoughtcrimes and Hatecrimes…it would seem that the Military Industrial Complex has nothing over the Criminal Justice/Prison Complex.
    And you thought the eeevil corrupt bankers and Wallstreet profligates and politicians were the problem….
    Damn,it started off as a good day…


    Having been on the enforcement side of the criminal justice system for almost twenty years, I will confirm that the federal criminal laws are out of control. Originally limited to treason and counterfeiting, the enforcement arm of the federal government has grown beyond its constitutional mandate and once again tried to supplant the states’ authority. Ron Paul is constitutionally correct in stating that FEDERAL drug offenses need to be totally repealed. That would eliminate most of the costs associated with the ATF, DEA, FBI, ICE, etc. In my current jurisdiction the Feds just pick and choose the “sexy” cases and kick everything else to local police agencies anyway.

  • Chemiker

    Remember that any reduction in the prison/industrial complex will be fought.

    A number of years ago I was speaking the then Michigan governor (Engler), who was lamenting that the state prison budget was going to be more than that for higher education. This probably has come to pass in many states.

  • http://yahoo Reba

    It’s not just the federal govt that crime pays, for them. Many states, like the one I live in, arrest and imprison people for small infractions. They allow da’s and police to much power and leeway.

  • eddie47d

    We have deliberately chosen to incarcerate instead of rehabilitate. We all feel good when a “criminal” is taken off the street and want more and more incarcerated. We never think of the financial consequences of this revolving door policy of throwing drug users and others in prison.Nothing changes and the prison industry is booming. We also imprison those who commit petty crimes at a much faster rate than expensive to prosecute white collar crimes. A person may rob an ATM or someones home for a few bucks but can go to prison for life. A white collar criminal can steal millions and hide it off shore which makes it tough to put that scam artist in Prison. That is another form of class warfare that goes on in this country and the punishment is never equal. An “educated” criminal seldom gets more than 6-20 years while their petty counterpart will get 40-life.

    • 45caliber

      How do you rehabilite a criminal who is also a psychopath? They are also now called a sociopath since people tend to fear psychopaths. Probably 80% of all criminals are psychopaths.

      Psychopaths do not mean that these people want to hunt down and kill everyone they meet. They are people who can only make decisions based on what is best for them alone. As a result if someone dying would help them, then that someone should die. But it also means that is they can steal what you have, then that is also right.

      Despite what some psychologists might say, this is NOT a condition that can be “healed”. It is part of the being and is not learned in the first place. The only way to restrict these people is to make things so tough in prison that they don’t want to go back – and that is illegal in our system.

  • pabumpkin

    I recall a quote from some 40 years ago, from whom I do not recall: In the communist system everything is prohibited except that which is permitted; In the capitalist system everything is permitted except that which is prohibited. Scary to think where our system is heading!

    • 45caliber

      You are correct. What is scarier is that we have almost arrived at the Communist version of law! For instance, try setting up a gathering of some sort without the permission of the local law.

  • 45caliber

    Federal crimes were supposed to be things like treason against the nation. All other crimes were supposed to be handled by the states. For instance, murder was not considered a federal crime even if a federal employee was the victim.

    But over the last forty years or so the federal government has made a strong attempt to take over the criminal system. One of the main ways they have done this is with the violation of civil rights law. This allows them to “second-guess” the states in criminal matters. Further, much of federal law is decided by judges, not juries.

    As a result this allows a person to be tried twice (or more) for the same crime and to be disallowed a jury trial – both violations of the Constitution.


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