One reason anti-establishment populist revolts are roiling both political parties is doubtless that our elected officials consistently hold themselves to different standards than those they apply to everyone else. For a particularly clear example, consider President Obama’s proffered defense of Hillary Clinton in addressing the FBI’s ongoing investigation into the unauthorized email server Ms. Clinton used as Secretary of State. On April 10, on Fox News Sunday, the president argued that even if Secretary Clinton violated a legal rule, her mistake was merely “careless” but not “intentional.” The same Mr. Obama, however, has aggressively opposed legislative efforts to afford a similar defense to ordinary Americans who unknowingly violate the labyrinth of federal rules and regulations.
Historically, in American law and the British law upon which it is based, intent mattered in criminal law. To convict someone of a crime, the state had to prove both that an individual had committed a bad act (the Latin term is “actus reus”) and that he had a guilty mind (“mens rea”). That principle is still the rule in the Model Penal Code upon which most state criminal codes are based. Nevertheless, both the states and the federal government write more and more statutes and regulations with potential criminal sanctions every year — many of which are “strict liability” offenses that criminalize conduct without regard to intent.
That means that ordinary citizens are placed in jeopardy of criminal prosecution for accidentally violating a regulation, even if the conduct proscribed is not intuitively wrong. Consider Lawrence Lewis, an African-American single father who rose from janitor to chief engineer of a military retirement facility. In 2007, he diverted a storm drain to prevent a backed-up sewage system from flooding a section of the facility housing some of its sickest veterans. Unbeknownst to Lewis, the runoff from the diverted drain ran into a creek that fed into the Potomac River. Mr. Lewis now has a criminal record for violating the Clean Water Act; his lack of intent was no excuse.
Mr. Lewis is not alone. Indeed, an estimated 300,000 federal regulations carry possible criminal sanctions. Civil libertarian attorney Harvey Silverglate estimates that the average American commits “three felonies a day.”
Although some conduct might be so injurious to public health or safety that a crime “without intent” is warranted — and civil fines certainly may be appropriate for mistaken violations of the law — we believe that in general individuals like Mr. Lewis should not be deemed “criminals” for unknowing violations of the law. Many state legislatures agree. Fourteen states have “default” standards requiring criminal intent; states without such clear rules have been adding them — most recently Ohio and Michigan, in 2014 and 2015, respectively. No state prevents its legislature from enacting strict-liability crimes; instead, states with default mens rea rules prevent their courts inferring from legislative silence that no showing of intent is required. If the legislature means for a crime to be strict liability, it has to say so.
On November 17 2015, following two years’ study by a bipartisan task force, a group of Democratic and Republican representatives introduced legislation that would follow these states’ lead and require courts to interpret crimes as strict liability only when expressly required by Congress. A similar bill was introduced in the Senate the next day.
Unfortunately, the White House — following the lead of the President’s liberal allies like the Center for American Progress and Public Citizen — immediately came out against the legislation. President Obama’s team argued that requiring Congress to say so expressly if they wanted individuals to be prosecuted criminally for unknowing violations of a regulation would unduly hinder the government’s ability to enforce environmental and white-collar crimes.
One might think that matters of national security are at least as important to public safety as environmental and financial crimes, but at least some of the statutes under which Ms. Clinton might be prosecuted do require some showing of guilty mind. For example, 18 U.S.C. § 1924, which provides for fines and imprisonment for removing any “documents or materials containing classified information,” requires the government to show that such removal was “’knowing” and “with the intent to retain such documents or materials at an unauthorized location.” Similarly, 18 U.S.C. § 793, which criminally punishes removing “from its proper place of custody” materials related to the national defense requires the government to show “gross negligence.”
President Obama isn’t complaining about the fact that such provisions could limit the Justice Department’s ability to build a case against Hillary Clinton. The implicit message is this: the president is willing to provide his former Secretary of State with protections he’s not willing to afford ordinary Americans.
James R. Copland is a senior fellow and director of legal policy, and Rafael A. Mangual a legal policy project manager, for the Manhattan Institute.