mens rea – Overlawyered

Crime and punishment roundup

Walter Olson — Fri, 06 Apr 2018 09:52:06 +0000

Prosecutors too often dodge mens rea (knowing wrongfulness) as precondition for crime. SCOTUS can help by better defining “willfully” [Ilya Shapiro and Reilly Stephens on Cato certiorari brief in Ellison v. U.S.]
False abuse accusations, a dozen years later: “The Girl Who Told The Truth” [Michael Hall, Texas Monthly]
Retired federal judge Kevin Sharp: mandatory minimum sentences forced me to do injustice [Cato Policy Report]
Kansas is unique in extent to which it adds large classes of drug offenders to sex offender list, new bill would change course [Maurice Chammah, Marshall Project]
Like a contingency fee: “Tennessee state forensic scientists have a financial incentive to secure DUI convictions, says a Tennessee appeals court, as the $250 fee imposed on guilty motorists pays their salaries (and some of their positions were nearly cut in a recent budget crunch). Which violates due process.” [John K. Ross, “Short Circuit”, on Tennessee v. Decosimo]
Amicus brief from Cato Institute and other groups in Ross Ulbricht/Silk Road case argues that Internet deserves robust Fourth Amendment protection [Ilya Shapiro and Aaron Barnes]

Tags: child abuse, contingent fee, forensics, mens rea

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“If the Law Is This Complicated, Why Shouldn’t Ignorance Be an Excuse?”

Walter Olson — Mon, 06 Nov 2017 05:05:43 +0000

Sharing a Netflix password might be a violation of federal law; so might picking a feather up off the ground, or freeing a whale that has become caught in one’s fishing gear. “America’s judges still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal. But it’s not fine, and the justifications for that palpably unfair rule have only grown more threadbare with time.” [Clark Neily, TownHall] More: Stephen Carter, Bloomberg View.

Tags: crime and punishment, mens rea

“If the Law Is This Complicated, Why Shouldn’t Ignorance Be an Excuse?” is a post from Overlawyered - Chronicling the high cost of our legal system

“Morally Innocent, Legally Guilty: The Case for Mens Rea Reform”

Walter Olson — Thu, 12 Oct 2017 10:01:12 +0000

Excerpt [John Malcolm, Federalist Society Review]:

Proof of mens rea — a guilty mind — has traditionally been required to punish someone for a crime because intentional wrongdoing is more morally culpable than accidental wrongdoing; our justice system has usually been content to evaluate accidents that injure others as civil wrongs, but criminal punishment has been reserved for people who do bad acts on purpose. But that has changed as legislators and regulators have begun to see the criminal justice system, not as a forum for ascertaining moral blameworthiness and meting out punishment accordingly, but as just another tool in the technocratic toolbox for shaping society and preventing social harm. Mens rea reform, if Congress implements it, would constitute an important step toward restoring justice by preventing criminal punishment for actions like Bobby Unser’s leaving his snowmobile on federal land during a snowstorm. Ensuring that there are adequate mens rea standards in our criminal laws is one of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address every societal problem. While some critics argue that mens rea reform would only benefit wealthy corporations and their executives who flout environmental and other health and safety regulations, the truth is that such corporations and their high-ranking executives are able to hire lawyers to navigate complex regulations and avoid prosecution, while individuals and small businesses lack the time, money, and expertise to avoid accidentally violating obscure rules. Mens rea reform is necessary to ensure that our criminal justice system punishes in accordance with commonly held beliefs about right and wrong, which is important if it is to maintain its legitimacy in the eyes of all Americans.

Tags: mens rea

“Morally Innocent, Legally Guilty: The Case for Mens Rea Reform” is a post from Overlawyered - Chronicling the high cost of our legal system

August 23 roundup

Walter Olson — Wed, 23 Aug 2017 10:05:56 +0000

Crash-faking for insurance money, long a U.S. problem, happening in U.K. too [Legal Futures, Telegraph, compare]
$5000 and an apology for a racist comment on AirBnB? Sounds good. Community service? Even better. A college course too? Why not? Plus more community service? Sure! [The Guardian, ABA Journal; settlement presided over by California state agency]
Encyclopedia of Libertarianism now free online thanks to Cato Institute. My contribution was on Thomas Macaulay;
Conservatives! Victory lies within reach! All you need to give up are your principles! [Jeremy Carl and Mark Krikorian, NRO, on idea of regulating social media and Internet providers as public utilities; more from Electronic Frontier Foundation on the new wave of electronic de-platforming; related yesterday on business ostracism]
Per Judge Easterbrook, caption tells story of case: “The City of South Bend, Indiana, is suing one of its constituent parts.” [City of South Bend v. South Bend Common Council, Seventh Circuit]
“Difficulty proving ‘criminal intent’ should be ‘a severe, even disabling, obstacle to prosecution.'” [Caleb Kruckenberg on this New Yorker piece deploring lack of more white-collar convictions]

Tags: crash faking, discrimination law, isometric government, mens rea, social media, United Kingdom, WO writings

August 23 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Vicarious criminal liability for managers: how we got there

Walter Olson — Fri, 28 Jul 2017 04:07:32 +0000

In Dotterweich v. U.S., a 1943 case that established a persistent and troublesome doctrine in criminal law, the U.S. Supreme Court agreed that a pharmaceutical company manager could appropriately be convicted over the misdeeds of an underling without having to show that he knew of the violation, participated in it, intended it, or was negligent in failing to prevent it. My new Cato post summarizes new research by Craig Lerner on Dotterweich’s trial, in which the court seemed to struggle with the idea of imposing vicarious guilt without mens rea (a guilty state of mind). I also link to the chapter I wrote on white-collar prosecution in this year’s new edition of the Cato Handbook for Policymakers.

Tags: crime and punishment, FDA, mens rea, pharmaceuticals, Supreme Court

Vicarious criminal liability for managers: how we got there is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup

Walter Olson — Mon, 03 Apr 2017 04:05:42 +0000

All-Cato edition:

SEC’s use of in-house judges violates constitutional principle of independent judiciary [Thaya Brook Knight, Ilya Shapiro, Devin Watkins, and Ari Blask]
Have you checked out the annual Cato Supreme Court Review on the 2015-16 term, available both in-print and free online? Among the contents: Roger Pilon on Scalia’s originalism; Andrew Trask on the class action case of Tyson Foods v. Bouaphakeo (and more); Steven Calabresi on originalism and liberty; Steven Eagle on wetlands law; Harvey Silverglate and Emma Quinn-Judge on McDonnell and honest-services-fraud prosecutions of state and local officials; and Glenn Reynolds looking ahead to this (2016-17) term;
Federal agency can’t unilaterally rewrite unambiguous statutory provision [Ilya Shapiro and Frank Garrison on Cato certiorari amicus in FLSA tip-pooling case of National Restaurant Association v. Department of Labor]
“You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind” [Ilya Shapiro on Cato certiorari brief in mens rea case of Farha v. U.S.; related on mens rea, Orrin Hatch, Time]
Court must resolve constitutionality of CFPB structure, especially now that DoJ itself agrees it’s unconstitutional [Thaya Brook Knight and Ilya Shapiro, more]
In ineffective-assistance-of-counsel case that might hinge on whether drug defendant was bound to be convicted anyway, Court should not sidestep the historically significant phenomenon of jury nullification [Cato podcast with Tim Lynch on Lee v. U.S.; more on case from Amy Howe at SCOTUSBlog on oral argument and from Lynch at The Hill]

Tags: Antonin Scalia, Cato Institute, CFPB, constitutional law, jury nullification, mens rea, Securities and Exchange Commission, Supreme Court

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Crime and punishment roundup

Walter Olson — Mon, 13 Mar 2017 09:53:25 +0000

Dairy Queen manager charged with involuntary manslaughter following suicide of teen employee reportedly bullied on the job [AP, Missouri]
Court orders new trial: carpenter, in school to argue against son’s school suspension over knife, had displayed knife he carries as part of work [Lancaster Online, Commonwealth v. Goslin]
Desires for retribution aside, hanging homicide rap on dealers after overdoses unlikely to solve opiate problem [Mark Sine and Kaitlyn Boecker, Baltimore Sun]
“Man wrongly convicted with bite mark evidence confronts bite mark analysts” [Radley Balko]
Judge Neil Gorsuch and over-criminalization [C. Jarrett Dieterle, National Review]
Debate over DoJ oversight of city police forces continues [David Meyer Lindenberg, Fault Lines (report on Chicago) and more]

Tags: Chicago, Department of Justice, forensics, mens rea, Neil Gorsuch

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Police and prosecution roundup

Walter Olson — Fri, 09 Dec 2016 11:27:40 +0000

“Policing in America: Understanding Public Attitudes Toward the Police. Results from a National Survey” [Emily Ekins, Cato]
“In ‘blistering’ ruling, court upholds recusal of entire Orange County DA’s office from murder case” [ABA Journal] Orange County scandals played role: “Prosecutorial Misconduct is Now a Felony in California” [Reason]
“Mistrial for Cop Who Shot Walter Scott in the Back” [Cato podcast with Matthew Feeney and Caleb Brown]
House Moves To Stop IRS Forfeiture Abuse [Jared Meyer] “California Enacts Asset Forfeiture Reform, Mostly Closing Lucrative Fed Loophole” [C.J. Ciaramella, Reason] “Iowa Will Pay Poker Players Robbed by Forfeiture-Hungry State Cops” [Jacob Sullum]
Time for the great U.K. child abuse witch hunt to close up shop [Charles Moore, Telegraph]
“Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements” [Trevor Burrus on Cato amicus in 11th Circuit case of U.S. v. Clay]

Tags: child abuse, Iowa, Los Angeles, mens rea, police, prosecutorial abuse

Police and prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Police and prosecution roundup

Walter Olson — Fri, 16 Sep 2016 04:05:18 +0000

Mississippi AG Jim Hood, a longtime Overlawyered fave, finds way to snipe at opposing death penalty counsel [Radley Balko]
Police use forced catheterization to obtain urine samples from unwilling suspects. A constitutional issue? [Argus-Leader, South Dakota]
“Why Gary Johnson Opposes Hate-Crime Laws (and You Should Too)” [Elizabeth Nolan Brown]
Yes, the Baltimore aerial surveillance program should raise concerns [Matthew Feeney, Cato]
“The Citizen as ATM: A small Missouri city has become a legal testing ground for ticketing practices and court reform” [Carla Main, City Journal]
New Mexico, a leader on asset forfeiture reform, should now tackle mens rea reform [Paul Gessing]

Tags: Baltimore, Fourth Amendment, hate crimes, Jim Hood, mens rea, Missouri, New Mexico, petty fines and fees, surveillance

Police and prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Another look at mens rea?

Walter Olson — Tue, 12 Jul 2016 10:13:48 +0000

“In a cruel irony, the Obama administration has scuttled one of its own late-term policy priorities — criminal-justice reform — because it opposes affording ordinary people the same defense [FBI director James] Comey invoked for [Hillary] Clinton.” [James Copland and Rafael Mangual, TownHall] “Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat. …All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law — a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.” [Jacob Sullum, earlier on mens rea] In Ms. Clinton’s case, didn’t she at least have a clear intent to violate FOIA and similar public access laws? [Coyote]

Tags: FOIA and public records laws, Hillary Clinton, mens rea

Another look at mens rea? is a post from Overlawyered - Chronicling the high cost of our legal system