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There are now 15 comments... what are your thoughts?
  1. Luís Silva says

    Your comic is really an eye-opener for me in regards to american law. Where I live, people wouldn’t think twice to view anyone but elected officials passing law as absurd and wrong, much less criminal laws. Does the U.S. system even have the “Penal dignity” and “Penal necessity” requirements in order to pass a penal law?
    It’s just because in my country your suggested fixes are seen as obviously necessary rules. I don’t want to be the stereotypical european saying “silly americans” but seriously guys?

    • At least as I understand it, here in the United States, mostly since the Great Depression, the de facto responsibilities and powers of the federal government expanded beyond what the writers of the constitution intended them to be so quickly that elected officials just saw delegating their power to appointees and civil servants within the executive branch as so much of a necessity that they didn’t think twice about giving them the power to enact criminal law, and people who have a problem with the laws and regulations that such unelected officials formulate and enact almost always have a problem with the content of the law or regulation itself rather than the penalty for violating the law or regulation. So really we don’t have these protections because the political incentive for elected officials to enact them just hasn’t emerged yet.

      • Also, our constitution was written more to keep elected officials out of the rightful domain of others than it was to keep others out of the rightful domain of elected officials because the founders took the de facto supremacy of elected officials in the absence of a monarch as a given. So preventing unelected officials from making criminal law did not come up until well after our constitution had been ratified.

  2. mr says

    Are these changes even possible in our current environment?

    • Certainly! Public awareness is a slow beast to awaken, but powerful.

      There just might be the beginnings of a movement going on at this very moment. [From the right wing, for example, see the Heritage Foundation.] [From the left wing, the Huffington Post.] [From middle-of-the-road, this very day’s issue of USA Today.]

      A couple bits of that USA Today piece sound kinda familiar, don’t they?

      • Hi, Canada here.

        We actually have specific rules that handle many of these problems. I’m reaching back to first year Crim on this one, and I’d have to go get my book to give you case references, but for example we have a limit on strict liability offences (they cannot include jail time), mens rea is by default assumed to include ‘intent/recklessness’, and we have constitutional protections for vagueness and over-broadness under s 7 of the Canadian Charter of Rights and Freedoms.

        Under that section, crimes which violate the “principles of fundamental justice” are of no force and effect, and can be struck down by the courts. These principles are generally accepted to be that laws cannot be: arbitrary, grossly disproportionate, vague, overbroad, crimes require mens rea, and a few others not often referenced.

        Wikipedia has a good page on the subject actually.

  3. Louise says

    “vague laws must always be interpreted in favor of the accused”

    Isn’t that a basic principle of contract law? As in, “ambiguous contracts should be interpreted against the person who wrote the contract”? Ordinarily you expect criminal law to operate on a stricter standard than civil law, so the current system really seems backward.

    • Seems to me that applying that contract law principle to criminal law would twist and uproot the entire criminal law system; that feels like an overwhelming change.

  4. WJS says

    Those fixes certainly couldn’t hurt, but it seems to me that they’re only patching the problem. I don’t see the underlying problem going away anytime soon; if they can’t even count the laws on the books, how on earth are they supposed to review them? And without reviewing them, the only solution would be to pick a handful of core laws (like those against murder and theft), and simply drop the rest – but I don’t see that happening ever.

    • It could definitely happen! Although I doubt it could happen while we also have a federal government (or, at least, while we have *this* federal government based on *this* constitution and *these* laws).

    • If the law is to be simple enough to avoid tripping up the Trudies and Dennises of the world, it will necessarily be too simple to constrain the behavior of more sophisticated operators, so there’s an inescapable tension there. And I note this page does not prescribe sentence reduction, which was the most beneficial change recommended by Blackstone.

      And I’m skeptical that more mens rea assessment will affect much, because most people who get busted really did have the necessary mens rea. And legislators are less trustworthy than regulators for these purposes (and are the primary source of moral panic legislative overreach), and the other suggestions are too vague to assess. So I can’t endorse much of what I see here.

  5. Shashakiro says

    Elonis v United States seems to make pretty clear that the “default mens rea if none stated” thing is already part of the law.

    It’s true (and unfortunate) that the rule of lenity has been practically thrown out in recent years, though.

    • Sadly, Elonis doesn’t do that. It paid lip service (citing a string of cases doing the same) to the law’s stated preference for a wrongful state of mind element. But it didn’t actually rule any more deeply than “a threat, by definition, is something you were aware of conveying,” and so the lower court’s mere negligence standard wasn’t enough. But they refused to say what mens rea would separate protected speech from a criminal true threat. And there’s the biggie: it’s a First Amendment line they were drawing, more than anything else.

      It’s not only an unhelpful decision, it’s a bad one. They refused to read any mens rea into the crime for statutory purposes. They refused to state a mens rea requirement for First Amendment purposes. They refused to resolve the circuit split, only saying that most circuits (whose rule the trial judge had applied) were doing it wrong, without saying how to do it right. It’s a First Amendment opinion that bends over backwards to avoid invoking the First Amendment. It makes the law less clear, not more.

      And it’s not stopping any prosecutions for strict liability crimes, which continue unabated in state and federal courts. The preference for an implied mens rea remains a mere “background principle” and neither a component of due process nor a true rule of statutory construction.

      More’s the pity.

  6. Scott McNay says

    Why have a default men’s rea? If they’re too sloppy to do it right the first time, throw it back. Maybe by then they’ll discover it’s not really needed after all.

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