Department of Justice

N.Y. Times Sides with Lazy Federal Prosecutors Not Wanting to Prove Criminal Intent Because 'Corporations!'

Apparently mens rea is just another 'loophole.'


The DOJ would rather bleed these guys of cash than prosecute them anyway.
"The Simpsons"

Not all of The New York Times' terrible, poorly argued editorials of the past week are on the front page. Beyond carrying water for the Obama administration on gun control, this weekend the Times' editorial board has also decided to help the Department of Justice and argue that federal prosecutors shouldn't necessarily have to prove that those who break any number of the unending, unknowable number of federal regulations intended to do so or intended to behave criminally in order to convict them.

The issue at hand is "mens rea," the legal concept that when prosecuting a person for criminal activity, the state should prove that the defendant knew he or she was breaking the law or engaging in criminal conduct. Some federal laws do have a mens rea component in prosecution, but many do not. As part of bipartisan criminal justice reform effort, some are pushing for expanding mens rea demands to some of the laws that do not currently possess them.

Requiring proof that the defendant knew what he or she was doing was criminal or would hurt people seems like a non-controversial demand to normal folks. But the problem, to some, is that such a requirement would mean federal prosecutors would have to prove mens rea against corporations or corporate actors accused of misconduct. The Department of Justice and the Center for American Progress have already spoken out against this mens rea reform with a typical invocation of the Koch brothers (who are pushing for the reforms). On Sunday, the Times editorialized against reform, calling mens rea a "confusing standard" that would create "endless litigation as the government and defendants argued over how, exactly, to meet it in each new case."

The Times points to legal expert Orin Kerr over at the Washington Post, who worries that the broad writing of the proposed legislation is indeed potentially confusing. However, I find the New York Times justification for rejecting mens rea itself confusing:

If anything, it is still too hard for prosecutors to go after corporate bad actors who endanger the health and safety of the public or the environment. And when they do bring charges, they're generally doing so with good reason. A University of Michigan study examining almost 700 prosecutions brought under federal environmental laws between 2005 and 2010 found that virtually all involved one or more of the following: repeat violations of the law, deceptive or misleading conduct, a refusal to follow regulations at all, or actions that caused significant harm to the environment or to public health.

First of all, the amount of money the Department of Justice has been raking in from settlements and fines against corporations its targets has been skyrocketing for the past decade (more than $180 billion for fiscal years 2012 and 2013), so the idea that the Justice Department is having trouble going after these folks is not supported by evidence.

Secondly, if mens rea is about proving that the defendant knew he or she was violating the law, wouldn't evidence of repeat violations, deceptive conduct, or the refusal to follow the regulations all satisfy that requirement? This example and study promoted by The New York Times actually fails to make the case that requiring mens rea is a burden and instead proves the opposite. Prosecutors are apparently more than able to prove that the defendants knew they were breaking the law.

This opposition to mens rea requirements attempts to paint the situation as rich, greedy Montgomery Burnses going "Who, me?" when they get caught dumping their toxic waste in the public parks. But Reason readers know that what we see regularly from the federal government are cases like those of Lyndon McLellan, a North Carolina convenience store owner who had all his money seized by the IRS because of a complicated deposit reporting requirement meant to catch criminals. That he had no intent to do anything wrong and didn't even know he was breaking the law (nor did the bank teller who encouraged him to do it) did not matter.

(Disclosure: David Koch sits on the Board of Trustees for the Reason Foundation, which publishes this site.)


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  1. This example and study promoted by The New York Times actually fails to make the case that requiring mens rea is a burden and instead proves the opposite.

    But, corporate bad actors endangering the health and safety of the public or the environment!


      1. And they don’t pay enough taxes!

  2. It’s my understanding that the New York Times and Democrats have been engaged in a two pronged attack against the Constitution and the American People this week, amirite?

    1. You missed a few prongs.

  3. If we tell the NY Times the Koches want gun control, maybe we can get them to pen an editorial against it.

  4. Am I going to have to purchase two Gatling Guns to defend myself against the editors of the Times?

  5. Isn’t that the same logic why due process so go away, #ListenAndBelieve?

    1. Look, I can either listen, or I can believe, but I can’t do both.

  6. It appears that the Times is arguing for (if I understand the thrust of their arguments over the last week) a kind of “no-fly list” for people they don’t like?

    Perhaps it could be more aptly called a “no-free list”

  7. And when they do bring charges, they’re generally doing so with good reason.

    “Generally”? What exactly is meant by that weasel word?

    1. It’s meant “often enough for the editorial staff being comfortable with the process”.

      1. Until, of course, that power becomes vested in a government they don’t like.

      2. It means: We know better than you, so take our word for it.

        1. +1 “reasonable”(!) gun control laws that everyone supports…Generally.

    2. Also, totally oblivious to the irony of saying that we should ignore lack of intent to break the law on the part of defendants because of prosecutors’ intent to enforce it.

  8. The New York Times can have a large drink of this Man’s Urea!

  9. i’m torn on this issue. however, the ny times being against it suggests it’s probably a good idea.

  10. Requiring proof that the defendant knew what he or she was doing was criminal or would hurt people seems like a non-controversial demand to normal folks.

    Cop: You were going 25 miles per hour over the speed limit
    Me: I didn’t know the limit here was only 35
    Cop: Ignorance of the law is no excuse. [writes ticket]

    So much for your mens rea. It is very selectively applied.

    1. Actually, BigT, if you challenge the ticket the government does indeed have to prove that you were made aware of the speed limit (i.e., that speed limit signs were posted).

      If the speed limit on a road is 35 miles an hour, but that fact is written down in some thousand-page legal tome and not posted on the road itself, the court will throw out that ticket.

      1. That is not the same as mens rea. There is no requirement for the government to prove that you intended to break the law; they must only show that the limit was posted and you exceeded the limit. Speeding is a strict liability offense.

        A better question is why do we tolerate “strict liability” when it’s patent bullshit, but when you ask that question, everybody suddenly becomes an armchair statistician.

  11. “NY Times sides with the government” doesn’t really qualify as news, at least when the President is a Democrat.

    1. Wrong. NYTimes is exactly like NPR… they always side with government – as a concept. They make take issue with AN administration, but the concept of government is always beyond reproach.

    2. Point being, they sometimes swing anti-establishment, but they never swing anti-authoritarian.

  12. Note that the DoJ isn’t exactly “raking in money” so much as funneling hundreds of millions to leftist “community groups” who then support Democratic positions and candidates.

    (If you hit the paywall, just copy the first paragraph into Google and click that link. That usually works.)

  13. And when they do bring charges, they’re generally doing so with good reason.

    Author’s favorite popsicle flavor: boot. Lick it up, NYT.

  14. IMO, if you broke a law for the first time and you harmed no one, you should get a pass. Well, actually I think if you didn’t harm anyone there shouldn’t be a law against what you did in the first place, but whatever.

  15. So when the New York Times Corporation is finally put up against the proverbial wall, will its editorial staff will and gnash their teeth or will they be honored to immolated for the greater glory of the state?

  16. Mens rea isn’t so much to me about knowing what you did was illegal as it is about willfully violating someone else’s rights. Even in cases of negligence, you’d need to convince me as a juror that the defendant willfully disregarded someone else’s rights.

    1. That is the historic common law understanding of mens rea but it was thrown out a long time ago except where it arises by coincidence (i.e. proving intent in case of murder is equivalent to proving intent to harm).

      1. To the extent that mens rea has been thrown out, it has been thrown out unjustly.

        And, again, it doesn’t need to only mean intent to harm. Negligence can handle mens rea, too. You’re going to have a hard time getting me to convict someone of negligence unless you prove that the defendant knew what he neglected to do might cause harm to someone else and willfully (mens rea) neglected to do something adequate to prevent that harm.

        If anything, what’s pushed mens rea to the wayside has been things like strict liability and government regulation.

        We don’t care if your pit bull was provoked by the guy your dog bit; if your dog got out of your yard, then it’s your fault–whether you have men rea or not. That should be handled by simple negligence with mens rea in tow.

        And the government wanting to inflict itself on us in other ways. It doesn’t matter whether you thought plowing over wetlands was okay so long as it was on your own property, Farmer Brown–we don’t want you plowing over wetlands, so here’s your fine. You can mitigate by buying us ten acres of endangered land we want to eminent domain for every acre of wetlands you destroyed. Mens rea has a place in that dispute, too, it’s just that regulatory agencies don’t want the hassle of going to trial and respecting people’s rights.

  17. I should add that mens rea is incredibly important to me to the idea that our rights are inalienable. To me that means that the government can’t take away our rights.

    We deal with that in the real world primarily in two ways. First, we use a jury of your peers. “Of your peers” means, specifically, that the jury is not the government. The jury decides whether the defendant is guilty, not the government.

    The second way we deal with the fact that the government cannot violate our rights is through mens rea. If you intentionally violated someone else’s rights, then the government didn’t really take your rights away from you when you were convicted. A jury determined that you willfully forfeited certain rights when you willfully committed the crime, i.e., mens rea.

    When you willfully use a gun to rob someone and violate their rights and then you willfully shoot them, how can you blame the government for locking you in jail? That isn’t a violation of your rights. If the jury finds that what you did in that situation, you did willfully, then you chose to forfeit your liberty. Mens rea doesn’t mean that you knew what you were doing was illegal. It implies volition when a criminal forfeits certain rights.

    One of the essential purposes of a jury is ascertain whether the defendant had mens rea willingly forfeited some of his rights. If he or she did, then the jury comes back with a guilty verdict.

    1. “When you willfully use a gun to rob someone and violate their rights and then you willfully shoot them, how can you blame the government for locking you in jail?”

      In other words, it’s like when you get taken to court for violating a contract.

      You can’t claim the government is “forcing” you to pay if you willfully violated the terms of a contract that you willfully signed.

      Mens rea is like willfully violating a contract.

      Yes, we are all obligated to respect other people’s rights, and if you willfully violate someone’s rights (mens rea), then you willfully open yourself up to the consequences for doing that.

  18. “The issue at hand is “mens rea,” the legal concept that when prosecuting a person for criminal activity, the state should prove that the defendant knew he or she was breaking the law or engaging’

    If that’s too complicated for you, you can always refer to the musical version, “It’s Rea’n Mens

  19. If you read the NYT editorial, they support their argument with a link to their own “news article” (advertorial) from last week bemoaning the “fraying” of the alliance between the left and the Kochs (they mention the Kochs 5 freaking times in a fairly short article) that threatens the passsage of the whole criminal justice reform package over this one issue. Their evidence that the alliance is fraying and that this one issue threatens the entire package? There is none, they even admit the bill passed out of committee with bi-partisan support – which suggests the threat to the bill’s passage comes entirely from the NYT itself. They are on a mission from God* and if it be their duty to scuttle a good bill because they disagree with one small part, well, that’s what you get for daring to mess with the NYT.

    *God being the NYT.

  20. I kind of like that idea. Like seriously.

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