Per 18 U.S. Code §604, it is a federal crime to be “in any manner concerned in soliciting or receiving” any contributions “for any political purpose from any person” entitled to government relief.
That could mean any presidential candidate who takes money from any person receiving Social Security, student debt relief, welfare, or any other type of fund appropriated by Congress for “relief purposes” could be fined or imprisoned.
The term “solicits or receives or is in any manner concerned in soliciting or receiving” a contribution could even mean that a candidate for the presidency cannot campaign at a retirement community in Florida or Arizona. If any senior citizens receiving Social Security made a campaign contribution, that candidate could be locked up.
But 18 U.S. Code §604 has one saving grace: It requires a prosecutor to prove that “whoever … is in any manner concerned in soliciting or receiving” any “contribution for any political purpose” knows that the contributor is entitled to government relief.
Otherwise, there is no criminal liability.
That’s crucial—because it means that a person who unknowingly violated the law won’t be sent to jail.
This word “knows” is one type of criminal intent requirement that, as former Heritage scholar Brian W. Walsh wrote, “restrict[s] criminal punishment to those who are truly blameworthy and [gives] individuals fair notice of the law.”
Heritage scholar John Malcolm observed that some courts say this term requires prosecutors to prove “that the accused was aware of what he was doing (meaning he was not sleepwalking or having a psychotic episode or something of that nature),” or “that he was aware to a practical certainty that his conduct would lead to a harmful result.”
Unfortunately, these criminal intent requirements are often absent in criminal legislation.
Thus, mistakes like getting lost in a blinding snowstorm or selling sea otters to non-native Alaskans make you a criminal.
Bobby Unser accidentally wandered into a national forest wilderness area while trying to escape a snowstorm he was caught in while snowmobiling near his home. He was rescued after surviving 48 hours in sub-zero weather, with only snow to keep hydrated. Once home, he contacted the Forest Service to help him find his snowmobile, but wound up convicted of unlawful operation of a snowmobile within a national forest wilderness area—an offense punishable by 6 months in prison and a $5,000 fine.
Wade Martin was also shocked when policemen came to his door to arrest him.
As a native Alaskan fisherman, an exemption to the Marine Mammal Protection Act entitles Martin to trap, hunt, and sell species like sea otters to other native Alaskans. But to sell an animal to a non-native Alaskan, the law requires it to be turned into a handicraft. Martin sold 10 sea otters to a buyer he thought was a native Alaskan, but police found out the buyer wasn’t a native Alaskan. Without a criminal intent requirement in the law, prosecutors did not have to prove that Martin knew the buyer’s ethnicity, so Martin pleaded guilty to a felony and was ordered to serve two years’ probation and pay a $1,000 fine.
Brian W. Walsh and Tiffany M. Joslyn calculated in the 2010 Heritage Foundation report “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law” that in just the 109th Congress of 2005–2006, members proposed 446 new nonviolent criminal offenses. Fifty-seven percent did not have a strong criminal intent requirement.
And during that Congress alone, 23 new criminal offenses with inadequate protection for unwitting victims like Bobby Unser and Wade Martin became law.
If lawmakers are going to write criminal laws so badly, perhaps they should be sent to jail, at least until they learn to write better. Without §604’s intent requirement, prison is exactly where many political candidates would likely end up.
