No one knows how many laws there are in the United States. We only know that the number is increasing. Congress passes 1,000-page laws. Each day, regulatory agencies issue rules with the force of law. Just last week, the Federal Register listed 84 new regulations.
In Federalist No. 62, Publius warned of this: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read…”
They cannot be guessed, either, for many laws criminalize behavior that would otherwise be acceptable. For example, in Michigan, if you are purchasing poultry for resale, you can be convicted of a misdemeanor and face 90 days in jail for failing to record the license plate number of the vehicle delivering the birds. No ethical system teaches that poultry delivery license registration is a moral imperative.
Lamentably, many of these crimes are “strict liability offenses,” meaning you can be found guilty even if you didn’t know your action was illegal.
Many more of these crimes, such as the poultry regulation, are ambiguous — the text of the laws doesn’t specify whether intent is required, leaving it up to courts to decide.
Rep. Mike Shirkey (R-Clark Lake) introduced a bill into the Michigan House of Representatives last month that would clarify this ambiguity. Any law enacted after Jan. 1, 2015 creating a criminal offense would be understood to require prosecutors to show that the defendant acted “purposely, knowingly, or recklessly.”
This is a good start, but ambiguity isn’t the only problem. Strict liability can be a problem even when written into the laws, because crimes should require intent, especially if they’re not clearly morally wrong.
Traditionally, criminal convictions require evidence of both a criminal act (actus reus) and a criminal mind (mens rea). Theft does not consist merely of taking someone’s property, but of intentionally taking it knowing that it is not yours to take.
Yet in a quest for regulatory efficiency, too often this has been laid aside in favor of strict liability.
Take the case of Shaneen Allen, a single mother of two who started carrying a handgun after being robbed twice. She made the mistake of assuming that her Pennsylvania carry license would allow her to exercise her right to bear arms in New Jersey. She was wrong. New Jersey doesn’t recognize Pennsylvania carry licenses, so she faced a three-year mandatory minimum sentence and a conviction that would ruin her medical career. Under public pressure, the prosecutor dropped the case last week, but the point remains: Strict liability offenses can destroy the lives of citizens guilty of nothing more than honest mistakes.
The regulators, be they congressmen or bureaucrats, will counter that strict liability is necessary to ensure maximum compliance. The original strict liability regulations were designed to force innocent people to take extraordinary care in such matters as avoiding selling adulterated milk. The point wasn’t to punish wrongdoing, but instead to make people comply with the regulators’ plans.
This objection is valid. Admittedly, if people can be punished for violating regulations they didn’t know existed, they’ll take more care to educate themselves about regulations and society will better conform to the regulators’ wishes.
But fie on that. It’s more important to avoid destroying innocent people’s lives than to maximize compliance.
Criminal law traditionally served to punish wrongdoing. There’s nothing wrong with unwittingly violating the plans of regulators, elected or otherwise. It’s simply unjust to brand innocents as criminals for accidental noncompliance.
Strict liability also undermines the presumption of innocence. The defendant ought to be held innocent until proven guilty in both deed and intent.
As Justice Robert Jackson explained in Morissette v. United States, a landmark Supreme Court case addressing criminal intent, “The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.”
A free and just society doesn’t ease the path to conviction for people who violate unknowable rules.
The Michigan legislature should pass Shirkey’s bill and other state legislatures should pass equivalent bills. The federal government should pass such a bill, as well as one applying to the various independent executive agencies to which they’ve delegated power.
Finally, lawmakers at all levels should refrain from creating strict liability offenses if at all possible. The country may become a bit harder to regulate, but it will be a freer place, and more just.
