One summer day in 2011, an 11-year old Virginia girl saw her cat stalking a baby woodpecker in the backyard of her father's house. She rescued the bird, and after looking without success for its mother, decided to care for it for a day or two before releasing it, in order to make sure it wasn't sick or hurt.
Later that day, the girl and her mother stopped by a store while on the way back to her mother's house, and because of the hot weather, they carried the bird into the store in a cage rather than leaving it in the car. Once inside, they were confronted by a US Fish and Wildlife Service employee who happened to be shopping, and who informed them that transporting the woodpecker was a violation of the federal Migratory Bird Treaty Act.
Chastened, the girl and her mother brought the woodpecker home, released it, and called the Fish and Wildlife Service to tell them they no longer had the animal. However, a few weeks later, the Fish and Wildlife Service employee they'd encountered in the store showed up at the front door, along with a state trooper. The girl's mother was issued a $535 fine and told that she faced the possibility of conviction and imprisonment.
In the end, the Fish and Wildlife Service backpedaled and attributed the citation to a "clerical error." But the incident illustrated the potential unintended consequences of criminal statutes drafted using language that is silent regarding the state of mind of the defendant. The Migratory Bird Treaty Act, for example, makes it unlawful to "transport or cause to be transported . . . any migratory bird" but makes no mention of the intent of the person doing the transporting.
There are many other federal and state statutes that fail to speak to intent, and their numbers grow with each legislative session, creating an ever-increasing risk that people will be subjected to criminal prosecution for innocent actions. Conversely, statutes that lack clarity on intent can also be misapplied in ways that let the guilty go free.
In an attempt to address this, last month, two bills were introduced in the US House and Senate that would require prosecutors to prove a specific level of intent in trials involving federal criminal statutes where the text is silent on state of mind. Like nearly everything in Congress, the bills are controversial: Proponents say an antidote is needed to over-criminalization in the United States Code, which now lists well over 4000 federal crimes; opponents argue that the bills would make it harder to prosecute white-collar crimes.
The core issue underlying the debate is the nexus between intent and criminality. Historically, a crime has been understood to require the combination of both the act itself, called the actus reus, and awareness that the act was wrong, or mens rea. In a 1798 case in England, jurist Lord Kenyon wrote that "it is a principle of natural justice, and of our law, that actus non facit reum nisi mens sit rea. The intent and the Act must both concur to constitute the crime." The importance of intent was also widely understood in early American criminal law, which drew heavily on English common law. However, starting in about the middle of the nineteenth century, an increasing number of American criminal statutes were drafted and enforced without regard to intent.
In a now-classic 1933 Columbia Law Review article, Harvard Professor Frances Bowes Sayre wrote that "we are witnessing today a steadily growing stream of offenses punishable without any criminal intent whatsoever. Convictions may be had for the sales of adulterated or impure food,… infractions of anti-narcotic acts, and many other offenses based upon conduct alone without regard to the mind or intent of the actor." Sayre, who coined the term "public welfare offenses" to describe these statutes, attributed to them in part to the regulations made necessary by "the growing complexities of twentieth century life," including the "invention and extensive use of high-powered automobiles… the development of modern medical science… the growth of modern factories… [and] the development of modern building construction and the growth of skyscrapers."
The bifurcation that Sayre observed over 80 years ago between crimes where intent was evaluated and those where it was not is still present today: Minor offenses (and some major ones, including statutory rape and some drug-related crimes) are often treated under a "strict liability" framework in which guilt or innocence is determined based only on the act itself. If you park illegally and get a citation, contesting it by arguing that you didn't see the "No Parking" sign will get you nowhere. For more serious offenses, intent is often at the center of the inquiry. If you elbow someone in the face, understanding your state of mind is the key to distinguishing an unfortunate accident from battery. One change from the early twentieth century, however, is that today there are many more federal crimes on the books that are silent on intent, and that can potentially be prosecuted without regard to the defendant's state of mind.
The Supreme Court has repeatedly held that a defendant's state of mind should be considered in federal criminal prosecutions, even when a statute is silent on intent. Most recently, in its June 2015 decision in Elonis v. United States, the Court explained that "When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute 'only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.'" What the defendant thinks, concluded the Court, "does matter."
But the Court's Elonis decision stopped short of specifying the level of intent required for conviction, leading Justice Alito to write in a separate opinion that the "Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer."
Either of the two bills introduced in November, if enacted—and given the incompatible language in the two bills, only one of them could become law in its current form—would address the concern raised by Justice Alito. But the bills face formidable opposition, including from the Obama administration. A Justice Department spokesperson told the Huffington Post that the House bill "would create confusion and needless litigation, and significantly weaken, often unintentionally, countless federal statutes." A White House official quoted in the same outlet said the House bill "would undermine public health and safety, including laws that protect our environment and ensure food and drug safety."
While it's too early to predict their eventual disposition, the fact that the bills were introduced at all will help spur important discussions regarding the role of intent in crime. It is an aspect of the American criminal justice system that hasn't gotten nearly the attention it deserves, and that will generate a continuing series of important and challenging questions reflecting, to take Sayre's characterization of life in early twentieth century America and add a hundred years, "the growing complexities of twenty-first century life."
John Villasenor is on the faculty at UCLA, where he teaches in the schools of public affairs, law, management, and engineering. He is also a non-resident senior fellow at the Brookings Institution. Follow him on Twitter.