Mens Rea, Mistake, and the "Over-criminalization" Trope

It isn't too often that the subject of mens rea and mistake of fact and law appear in mainstream media accounts, but this piece in the Wall Street Journal is an exception.  The piece's main point is the erosion of mens rea in various new federal laws.  I have reservations about the current 'too-many-laws' trope.  I very much agree that some new laws are unnecessary and I also am generally uncomfortable with punishment practices which do not depend on a healthy dose of moral culpability as their primary justification.  But I think that there are pockets of under-criminalization as well as over-criminalization and that one needs to take the claim of over- or under-criminalization case by case.

The article also mixes together a number of issues which make the over-criminalization claim appear stronger than it is.  For example, it tells the story of a person who was convicted of possession of a weapon by someone previously convicted of a misdemeanor domestic violence offense.  The article says that this person "hadn't been told of the new law" and presents this fact as somehow unfair and further evidence of a new problem of over-criminalization.  But this is wrong.  It has long been the case that mistake of law is generally not a defense: ignorance of the law is no excuse.  There are exceptions to the rule, such as where a person is charged with a specific intent crime -- e.g., willfully failing to file tax returns.  In those circumstances, a mistake about whether the law applies to one's conduct does excuse, because the law itself requires a person to act "willfully."  But this is not such a crime.  It's simply possession of a gun, a general intent offense.  People are not required to be informed that specific laws exist which might apply to them (the law must be published, of course, to give them notice); they are required to make efforts to find out about the law on their own, and that is a perfectly sensible rule.  The fact that this guy didn't know about the law is his fault, and certainly not an indication of over-criminalization.

Another problem with the article is its conflating mens rea and purpose, and using that conflation to lend support to the over-criminalization trope.  Purpose, or intent, to commit a crime, in the sense of having a conscious object to achieve the result or to engage in the criminal conduct, is one type of mens rea; it is not synonymous with mens rea.  Another very important kind of mens rea, which is not discussed at all in the article, is recklessness, usually defined as some kind of conscious risk-taking with respect to a substantial and unjustifiable risk.  The article tells about a "controversial new law" which "can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions."  If by "the protesters' intentions" the article means the protesters' purpose to cause the target to feel fear, or even their knowledge that the target is feeling scared, then I don't think there is anything controversial about this law at all.  It is sensible, and no evidence of over-criminalization, to hold people responsible for recklessly putting people in states of fear.  Consider someone who shoots randomly into a house that he suspects, but does not know, is filled with people, without the purpose of killing or injuring any of them.  It's reasonable to charge that person with a crime of recklessness.  

Now it may be that this new law does not even demand recklessness or criminal negligence from the protesters, and that, I think, would be problematic (it may also be that there are serious First Amendment problems with the law, but that's a different story).  On the other hand, it seems plausible to me that a group of protesters shouting outside somebody's home and calling the person inside a murderer or some such thing would be acting recklessly with respect to the issue of putting the person in a state of fear.  But setting that aside, new crimes which provide for recklessness rather than purpose or knowledge as the requisite mens rea are not evidence of either the erosion of mens rea or the problem of over-criminalization. 

As I said, I agree that over-criminalization is real, particularly in the federal system.  And to the extent that mens rea is being eroded, that's problematic too (though my own reasons for believing this tend not to track most people's).  But I think it's important to be clear about the ways that over-criminalization is and is not a problem, so that one does not end up weakening the over-criminalization accusation by larding it with irrelevant arguments.