In This Post, Have I Committed A Federal Crime?
May 25, 2016 (Mimesis Law) — I herewith use the 4-H Club logo:
Have I just committed a federal crime? See 18 U.S.C. § 707 (second paragraph*; providing for a fine and imprisonment for using the logo without authorization; no knowledge or intent standard is required to be guilty).
My 4-H Club example is not exceptional. A 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 25 percent of nonviolent offenses proposed in the House or Senate during the 109th Congress had no mens rea requirement at all. Brian W. Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, Heritage Foundation Special Report No. 77 at 12 (May 5, 2010). Nonviolent offenses are the type of offense for which criminal intent standards are perhaps most important, because such offenses often deal with conduct that is not inherently wrongful.
Now, Congress has a proposal to fix this nonsense. For example, The House Judiciary Committee’s Criminal Code Improvement Act of 2015 sets a default standard:
11. Default state of mind proof requirement in Federal criminal cases
If no state of mind is required by law for a Federal criminal offense—
(1) the state of mind the Government must prove is knowing; and
(2) 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.
Senate bill, S. 2298, Mens Rea Reform Act of 2015, introduced by Senator Hatch, sets a default standard that is similar to the House bill, but his legislation is more rigorous.
However, many Democrats and some Republicans oppose these measures, stating that the bill would make it harder for the government to prosecute corporate crimes. That is apparently DOJ’s position as well. Senator Grassley is wary of adding mens rea reform to the Senate’s crime reform legislation probably because he fears being labeled by members of the other team as a shill for corporations. This opposition represents Thomas Hobbes’ Leviathan at its worst.
Here is the important point: If Congress or the administrative agencies want to create strict liability crimes, all they have to do is say so. It is not too much to ask that Congress and the regulators who make criminal non-violent behavior speak clearly as to whether a particular state of mind is required. If they fail to do so, a gap-filler law like the ones referred to above can save real people endless and unfair heartache.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*The second paragraph of the statute reads as follows:
Whoever, whether an individual, partnership, corporation or association, other than the 4-H clubs and those duly authorized by them, the representatives of the United States Department of Agriculture, the land grant colleges, and persons authorized by the Secretary of Agriculture, uses, within the United States, such emblem or any sign, insignia, or symbol in colorable imitation thereof, or the words “4-H Club” or “4-H Clubs” or any combination of these or other words or characters in colorable imitation thereof
– Shall be fined under this title or imprisoned not more than six months, or both.