Last Friday, Ilya Shapiro and Randal John Meyer of the Cato Institute published an article at National Review“Obama’s Weaponized Justice Department”–highlighting an increasing tendency of the department under the current administration of pursuing litigation against businessmen who generally have no knowledge of having committed any wrong-doing:

“Under policies implemented over the last several years, businessmen can be jailed simply for being in the wrong place at the wrong time. The apotheosis of this trend came last month, when Deputy Attorney General Sally Yates issued a memo titled “Individual Accountability for Corporate Wrongdoing.” The Yates memo notes changes to the department’s manual for U.S. Attorneys, revising the prosecution of corporate malfeasance in a way that overcomes the difficulty of establishing the culpability of “high-level executives.”


“Since 2011, the Justice Department has pursued a line of litigation that expands the “responsible corporate officer” doctrine, whereby corporate officers can be held criminally liable for the actions of their underlings without any knowledge or direct participation. More than 300,000 regulations — not even laws — can trigger criminal sanctions.”

Previously, as the article states, there has been little desire among government officials to target corporate officers for prison time under this doctrine—such cases have generally been dispensed of through fines or probation—nor has there been much interest among courts to assess such a penalty. This practice has recently changed, however:

“In the 2011 case United States v. Higgins, however, a federal district court sentenced a corporate officer to a prison term for running clinical trials of certain medical devices without FDA approval.


“Higgins wasn’t a clear signal that the government could seek prison terms for regulatory violations. The sentencing judge was highly attentive to the sophistication and “manipulat[ive]” means directly employed by the executive — inferring knowledge and bad acts.”

Shapiro and Meyer’s column drives at the pernicious effect of our current administrative and regulatory scheme, particularly at the federal level. As we’ve pointed out elsewhere, in addition to the roughly 4,500 criminal statutes scattered throughout the U.S. Code, there are about 300,000 federal regulations that can carry criminal penalties, as well—and these are just the ones we know about. As such, while there may have been a time in the past when an average citizen could reasonably have been expected to have knowledge of what is prohibited under the law—the Constitution lists only three explicit federal crimes—this is largely no longer the case. With a burgeoning U.S. Code and Federal Register, it can no longer be presumed that an average person is intimately familiar with the manifold—and seemingly innocuous—acts which are, in fact, illegal under federal law.

Which leads us to one of the striking aspects of the Higgins case mentioned above, in which a sentencing judge must attempt to divine, or otherwise infer, a knowledge of wrong-doing on the part of the accused. Occurrences such as these haven’t always been necessary, and reveals an important element of criminal law that is frequently—and increasingly—absent from such proceedings: criminal intent, or mens rea, requirements:

“In the history of criminal law, for an action to be considered a crime, two elements are generally required: first, a bad act (actus reus), and second, an intention on the part of the actor to commit it—called mens rea, Latin for a “guilty mind.”

As Shapiro and Meyer state, mens rea requirements are an “important limitation on prosecutorial power,” as they put the onus on government to demonstrate that the accused indeed intended to commit a wrong-doing, not just that they were “in the wrong place at the wrong time.” In a federal apparatus that both lacks such intent standards, and has grown unwieldy to the point of incomprehension on the part of most, this allows for a legal framework whereby abuses of power can—and do—occur. Without meaningful course correction, Higgins may just be the beginning.

Short of eliminating burdensome or unnecessary regulations, mens rea would be the most significant bulwark against the possibility of people running afoul of rules they had no knowledge or intent of violating. As Congress currently deliberates other criminal justice reforms, they should also seriously consider adding a default mens rea provision, and so reinstate the notion that crimes ought to involve culpable intent on the part of the accused.