As ‘Mens Rea’ Erodes, More Become Unwitting Criminals
September 28, 2011 by Sam Rolley
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.