SEPTEMBER 27, 2011

As Federal Crime List Grows, Threshold of Guilt Declines

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By GARY FIELDS And JOHN R. EMSHWILLER

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 sea otters he had recently sold for $50 apiece.

The Hunt for Sea Otters

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Joe Buglewicz for The Wall Street Journal

Wade Martin and Peter Williams scan the waters for sea otters about a mile off the coast of Sitka, Alaska.

Growth in Federal Criminal Sentences

See a breakdown of the rise in federal sentences by the type of offense.

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Mr. Martin, 50 years old, readily admitted making the sale. "Then, they told me the buyer wasn't a native," he recalls.
The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.
He pleaded guilty in 2008. The government didn't have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.
"I was thinking, damn, my life's over," Mr. Martin says.
Federal magistrate Judge John Roberts gave him two years' probation and a $1,000 fine. He told the trapper: "You're responsible for the actions that you take."
Mr. Martin now asks customers to prove their heritage and residency. "You get real smart after they come to your house and arrest you and make you feel like Charles Manson," he says.
The U.S. Attorney's office in Alaska didn't respond to requests for comment.
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.
One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.
Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.
Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."
A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law. It can be easier to fall afoul of the law under these terms.
In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn't exist—but later it was applied to him. He hadn't been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years' probation.
His lawyer, Jane McClellan, says prosecutors "did not have to prove he knew about the law. They only had to prove that he knew he had guns."
Upholding the conviction, a federal appellate court said that "the requirement of 'knowing' conduct refers to knowledge of possession, rather than knowledge of the legal consequences of possession."
In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.
A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms.
Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013.

Joe Buglewicz for The Wall Street Journal

Changing laws mean it's easier for a mistake to be treated as a federal crime. Mr. Martin says he learned that firsthand.

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.
Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.
Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked.
In a 2009 Judiciary subcommittee hearing on the growth of federal criminal law, Rep. Bobby Scott (D., Va.)., said that mens rea had long served "an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction."
The growing number of federal laws with weakened mens rea safeguards is making the venerable legal principle that ignorance of the law is no defense a much riskier proposition for people. That principle made sense, says University of Virginia law professor Anne Coughlin, when there were fewer criminal laws, like murder, and most people could be expected to know them.
But when legislators "criminalize everything under the sun," Ms. Coughlin says, it's unrealistic to expect citizens to be fully informed about the penal code." With reduced intent requirements "suddenly it opens a whole lot of people to being potential violators."
F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions.
"How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.
When a humpback whale got tangled in his fishing-boat net in 2008, Robert Eldridge Jr., a commercial fisherman, says he had one overriding thought: free it. He freed the whale, although it swam away with 30 feet of his net still attached.
A few weeks later, he was charged with harassing an endangered species and a marine mammal. Under federal law, Mr. Eldridge was supposed to contact authorities who would send someone trained to rescue the animal. The law is designed to prevent unskilled people from accidentally injuring or killing a whale while trying to release it.
Mr. Eldridge says he was fully aware of the federal Marine Animal Disentanglement Hotline for summoning a rescuer. But "it didn't cross my mind to do anything but keep it alive. I thought I was doing the right thing," the Massachusetts fisherman said.
There were two federal observers aboard his boat that day, performing routine checks, who reported the incident, according to court documents. Mr. Eldridge's potential sentence was one year in jail and a $100,000 fine.
Mr. Eldridge, 42, pleaded guilty and has a misdemeanor on his record. He was fined $500 and ordered to write a warning letter to other fishermen to look out for whales.
"I'm just glad it's done," he said of the case.
Asked for comment, a Justice spokeswoman referred to Mr. Eldridge's guilty plea, in which he admitted knowing the procedure and having the hotline number posted on his boat at the time of the incident.
The erosion of mens rea is partly due to the "hit or miss" way American legislation gets written today, says Jay Apperson, a former Chief Counsel to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Some lawmakers simply omit criminal-intent provisions when they draft legislation. "Lots of members don't think about it, not out of a malevolent motive," he says. "They just don't think about it."
Other times they do. In 1994, Congress rewrote part of the anti-money-laundering law that requires any cash transaction above $10,000 to be reported. The Supreme Court had just vacated a conviction, saying the "willful" provision required the government to show that someone knew he was violating the law when not reporting a transaction. In response, Congress took the "willful" provision out of the law.
An incident from 2002 illustrates the sometimes messy process of drafting legislation. That year, Congress passed the Sarbanes-Oxley Act, which set new punishments for white-collar crime following the scandals at Enron, WorldCom and other companies. Several legal experts were about to testify on key provisions of Sarbanes-Oxley before a Senate subcommittee when the chairman called a break in the meeting. The reason: The senators needed to vote on the very provisions the panelists were there to discuss.
The hearing resumed two hours later, after the provisions were approved 97-0. The witnesses went on to testify about the dangers of weakening criminal-intent standards, as Sarbanes-Oxley did.
"That slapdash approach to drafting was pretty rife throughout the period," said Frank Bowman, a University of Missouri law-school professor who advised the Senate Judiciary Committee during the bill's creation.
Among other things, the new law made it easier for prosecutors to bring obstruction-of-justice cases related to destruction of evidence. Under earlier law, prosecutors had to show the defendant's destruction of evidence was impeding an active investigation. Sarbanes-Oxley broadened that, prohibiting the destruction of material that might be part of any future investigation.
One of the witnesses that day, former deputy attorney Gen. George Terwilliger, says that, "In retrospect, the hearing must have been about: Is what we just voted on a good idea?"
Write to Gary Fields at gary.fields@wsj.com and John R. Emshwiller at john.emshwiller@wsj.com