In a previous Legal Update, I complained about how President Obama’s opposition to mens rea reform led him to oppose, and ultimately scuttle, other important criminal justice reforms at the federal level. This week I want to discuss why, contrary to what the President seems to believe, mens rea reform is actually a good idea, not just nationally, but also in North Carolina, and I also want to let readers know about some things the John Locke Foundation is doing to promote mens rea reform in our state.

For those who missed my previous explanation, mens rea is a Latin phrase meaning “guilty mind.” It is used by lawyers to refer to the mental state that distinguishes a crime from a mistake or accident. For example, if, at the end of a visit, I take home my neighbor’s umbrella in the mistaken belief that it belongs to me, I may be obliged by law to return it, but I have not committed a crime. If, on the other hand, I take the umbrella knowing it’s not mine and with the intention of keeping it, I have committed the crime of larceny. The knowledge and intent that make my conduct a crime in the latter instance are the mens rea elements of larceny.

The distinction between mistakes and crimes used to be considered very important. Indeed, the legal concept of mens rea, it appears, was originally introduced for the specific purpose of ensuring that people who made innocent mistakes did not face unjust prosecutions and convictions. As early as the twelfth century, English jurists had begun to accept, as a matter of due process, that a criminal conviction requires proof, not only of a “guilty act” (actus reus), but also of a “guilty mind” (mens rea). By the time the first English settlers landed at Roanoke in 1583, the mens rea requirement had been a well-established legal principle for several hundred years, and it continued to be a well-established legal principle on both sides of the Atlantic for several hundred years thereafter. Beginning at the end of the nineteenth century, however, the mens rea requirement began to erode, and that erosion has continued ever since.

The erosion of mens rea coincided with the rise of the regulatory state and with the concomitant transformation of the criminal law from a system for punishing wrong-doers to a instrument for social engineering. As the regulatory state expanded, and as its social engineering goals became more ambitious, the list of crimes grew rapidly, and—while there was no obvious reason why the mens rea requirement should not have continued to apply to this growing list of crimes—the progressives who were running the regulatory state regarded it as an unnecessary impediment to the realization of their plans. Accordingly, they persuaded like-minded legislators and judges to dispense with mens rea at least as far as regulatory crimes were concerned. (And, of course, they did the same with many other well-established legal principles that seemed to stand in their way, including the principles of federalism and the separation of powers.)

In North Carolina and throughout the country, we are living with the consequences of the changes described above. The North Carolina General Statutes include hundreds of criminal offenses in the chapter that deals specifically with criminal law and hundreds more in other chapters. In addition, they include numerous “catchall” provisions that criminalize hundreds of regulations compiled in the North Carolina Administrative Code. Making matters worse, the number of crimes and criminalized regulations increases with every passing year.

The result is patently unjust. Because there are so many of them and because they are so obscure, it is impossible for ordinary citizens to learn about and understand all the many laws and regulations that govern their everyday activities, and because so many of those laws and regulations criminalize conduct that is not inherently evil and that does not harm anyone, ordinary citizens cannot rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime. Nevertheless, for many crimes and most “regulatory” crimes, the official definition does not include any mens rea requirement. Anyone who inadvertently violates an obscure criminal law or criminalized regulation must, therefore, rely on prosecutorial discretion and judicial interpretation for protection against unjust prosecution and conviction.

At the John Locke Foundation, we think it is time to reconsider the trade-off that the progressives made between regulatory efficiency and the right to due process. Even modern progressives agree that it is important to uphold the due process rights of accused rapists and murderers. Why should we not be at least as solicitous of the due process rights of people accused of the “sale of speleothems”* or of “cutting timber on [a] town watershed without disposing of boughs and debris,” both of which are crimes in North Carolina?

To encourage such a reconsideration, we are working on two projects designed to explore the advisability of mens rea reform in North Carolina: 1) a detailed report that will be released in February and 2) a panel discussion that will take place in March. I’ll be reporting on the progress of both projects in the weeks to come. I hope readers who are interest in this topic will download the report and attend the discussion.


*    For readers who don’t know, a speleothem is “a natural mineral formation or deposit occurring in a cave.”