America’s highest ranking law-enforcement officer, Attorney General of the United States Loretta Lynch, has gotten directly involved in the debate over the proper standard of criminal intent (known in legalese as mens rea) in federal laws. At a March 9 Senate Judiciary Committee oversight hearing, Attorney General Lynch, while generally cautious in her response to Senators’ questions, endorsed the Department of Justice’s use of strict-liability laws to, among other things, “ensure the safety of our food and drugs.” Attorney General Lynch’s statement reflects the federal government’s long-standing belief that criminal prosecution is an appropriate and effective business regulatory tool. The government’s heavy reliance on regulatory crimes is why the Justice Department and other federal agencies oppose such common-sense reforms as a default culpability standard of “willful” or “reckless” for federal laws that lack an intent requirement. Heightened intent standards would complicate regulation-by-prosecution, an outcome the Obama Administration and some elected officials are desperate to prevent.
It’s no surprise that criminal enforcement, or even the threat of it, has become federal regulators’ weapon of choice. Why bother with the resource-intensive rulemaking process when regulators can impose new industry-wide policies by investigating and/or indicting one or several major players or their executives? A plea deal, deferred-prosecution agreement, or corporate integrity agreement nominally applies only to the settling parties, but the message sent to other businesses is clear: change your ways accordingly if you don’t want to be next.
Regulators and prosecutors can take this approach in any area, against any industry, thanks to the thousands of federal laws and hundreds of thousands of federal regulations that can be enforced criminally. In the area that Attorney General Lynch noted, food and drug regulation, prosecutors can pursue criminal sanctions without having to prove intent, and executives that neither knew of nor participated in their employees’ allegedly illegal conduct can be charged as “responsible corporate officers.”
Prosecutors and regulators are not only pushing to preserve the regulation-by-prosecution status quo, they are also working to further ease criminal enforcement in certain areas. For instance, a March 8, 2016 letter from the Department of Transportation’s Inspector General to a Member of Congress complained that the “knowingly and willfully” intent standard in a pipeline safety law was a “significant obstacle to bringing more successful prosecutions,” and asked that Congress lower the standard to “recklessly.” A December 17, 2015 memorandum issued jointly by DOJ and the Department of Labor directs prosecutors to seek criminal indictments under federal environmental laws for workplace safety violations. Why would the agencies apply criminal laws that Congress never intended be used for workplace regulation? Because criminal cases can be brought much more easily under laws like the Clean Air Act (which lacks an intent standard) than the Occupational Safety and Health Act, which features a “willfully” mens rea standard and imposes lower fines and jail sentences.
The government’s goals of safe food and drugs, a cleaner environment, and hazard-free workplaces are universally shared. But those goals can be achieved largely through civil and administrative remedies, and without treading on businesses’ and individuals’ due-process right to fair notice. Setting regulatory standards through criminal actions leads to ill-informed, one-sided rules, an outcome the administrative process is designed to prevent. And as vaguely-written laws and hyper-technical business regulations keep piling up, the risk of unintentional, unknowing violations increases, which in turn results in more accidental criminals. A criminal justice system in which we all commit “three felonies a day,” as attorney Harvey Silverglate has written, not only fails to deter crime, it also diminishes the gravity of crimes that are malum in se, or wrongful in themselves.
Reforms that require lawmakers to specify the amount of intent required to criminally violate a law—be it willfulness, negligence, or no intent standard at all—do not, as the Senate Judiciary Committee Chairman has claimed, “radically change fundamental principles of law.” They would require Congress to write laws more clearly, which itself may be a radical concept. A default mens rea would not, contrary to the Judiciary Committee’s Ranking Member’s assertion at the March 9 hearing, frustrate the prosecution of terrorists who kill Americans overseas where the accused were unaware of their victims’ nationality. America’s ability to prosecute such perpetrators is unaffected by whether the victims’ nationality was known. The intensity of such erroneous rhetoric, however, is a sure sign that those of us who have consistently opposed the criminalization of free enterprise have made significant progress.
Also published by Forbes.com on WLF’s contributor page