Critics of mens rea (criminal intent) reform claim it would shield white-collar criminals from prosecution. Rejecting the default criminal intent standard because we are rightfully upset by the lack of accountability for corporate wrongdoing is simply cutting off your nose to spite your face.
Criminal intent standards improve the criminal law for white-collar criminals, migrant workers, low-level drug offenders, law professors, and everyone else equally. We should not sacrifice that just to maintain the inadequate status quo of corporate accountability.
That status quo can and should be fixed directly. Deputy Attorney General Sally Quillian Yates wrote a recent memorandum on individual accountability for corporate misconduct in an attempt to address the problem. Any solutions to the problem of corporate prosecutions (or any other type of prosecution, for that matter) can and should respect the fundamental concept of criminal law that we shouldn’t call people criminals if they honestly and reasonably never meant to do anything wrong.
Why Criminal Intent Is Important
There are many reasons—liberal reasons—to distinguish between someone who knowingly violates a criminal law and someone who unintentionally violates a law he’s never heard of. As future Supreme Court Justice Oliver Wendell Holmes Jr. once quipped, even a dog can tell the difference between being stumbled over and being kicked. But for whatever reason, some critics of default criminal intent requirements would rather feign ignorance of that fact.
Criminal intent justifies and enables punishment of crimes committed with racist, homophobic, anti-Semitic, or other hateful intent. We add greater penalties to those crimes not because the criminal act itself changed from one type to another, but because the criminal intent behind it changed from one type to another in a way that we as a society agree is more dangerous and therefore deserves more punishment.
Criminal intent concerns far more conduct, as alluded to above, than corporate crime. Inadequate intent requirements can trigger the very prison terms President Barack Obama is seeking to reduce through the bipartisan sentencing reform efforts currently being debated in the House and the Senate.
While half of a criminal violation is someone committing a bad act (“actus reus”), the other half is (or at least traditionally was, and ought to be) that person acting with a bad intent (“mens rea”). It is the latter half of this equation, and only the latter half, that ultimately protects from punishment those accused of crimes they did not know they were committing because they reasonably did not know that what they were doing was wrong.
With nearly 5,000 federal criminal laws and over (likely well over) 300,000 federal regulations with criminal penalties, it is easy to see how anyone could end up being a criminal without knowing it. Only adequate mens rea standards prevent that from happening.
With nearly 5,000 federal criminal laws and over (likely well over) 300,000 federal regulations with criminal penalties, it is easy to see how anyone could end up being a criminal without knowing it.
Proposals Before Congress
The mens rea proposals pending before the House and Senate are, in fact, quite modest. The Senate version makes it quite clear that in instances when the default mens rea standard (willfulness, in the Senate bill) is inserted into a statute, the government will not need to prove that the defendant acted with that intent with respect to any element that establishes “subject matter jurisdiction” (so, for instance, the government would not have to prove that a bank robbery willfully chose to rob a federally insured bank) or “venue” (so the government would not have to prove that the defendant willfully chose to commit the crime in the jurisdiction where he is charged).
Nor would the default mens rea proposal apply to statutes in which Congress already has inserted a mens rea standard (even a weak one) or when the Supreme Court has held that a particular mens rea standard should be applied despite its absence in the statute (as was the case, for instance, in the Elonis case and the Staples case). The House version has a similar caveat in that its provision applies when “no state of mind is required by law for a Federal criminal offense.”
Finally, many laws regulating corporate misconduct already have a criminal intent requirement. Accordingly, they will be unaffected by the pending criminal intent bills. One of us addressed the argument that a criminal intent requirement would decriminalize “a host of white-collar crimes” committed by “merely reckless, negligent or grossly negligent” conduct, and thereby obstruct pursuit of executive wrongdoing, saying:
Such fear-mongering is patently and demonstrably untrue, and for a very simple reason: Negligence, recklessness, and gross negligence are all mens rea standards, so the default mens rea bill would not apply to any criminal statute that included those or similar terms.
And it is worth noting that a default intent provision will not stop future congresses from crafting strict liability crimes, if that is what they want to do. Legislators will simply have to affirmatively declare their intent to do so, rather than rely on silence and ambiguity to accomplish the goal.
While the critics of default criminal intent standards correctly argue that such evidence can be all that stands between a corporate executive and a jail sentence, they forget that the same is true for single mothers, migrant workers, politicians, and everyone else—including liberally inclined journalists. We are all just as at risk as the business community from the reams of crimes without a criminal intent standard—if not more so, for want of a corporate legal team at the ready.
These are just a few of the reasons why we shouldn’t risk meaningful criminal justice reform to preserve an inadequate status quo of corporate accountability. That status quo can and should be fixed head-on. But for all of us—corporate executives and low-level drug offenders alike—it must be while preserving the axiom that proving criminal intent is fundamental to, and not an exception to, criminal law.
