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.)