Handcuffs with gavel on a wood background. (DenisLarkin)
How many federal and Connecticut state crimes are there; crimes punishable by fine, possible imprisonment and reputational devastation? The answer: No one knows. In the 1980s, the U.S. Department of Justice put the number of federal crimes at approximately 3,000. In 2004 a Federalist Society monograph estimated the number had risen to around 4,000, and by 2007, it was thought that the number had gone up to 4,450. A 1998 American Bar report concluded that more than 40 percent of all federal criminal provisions enacted between the Civil War and 1998 had been enacted after 1970. None of these figures includes federal regulatory crimes, which were estimated in a 1991 Law Review article by Columbia Law School’s John C. Coffee, Jr. to stand at over 300,000. None of these figures counts the multitude of criminalized acts resting in the Connecticut statute and regulatory books.
There are at least two major problems inherent in this situation. First is the simple fact that no one can be fairly assumed to know what all the crimes are that might apply to his or her personal circumstances. Second, the traditional doctrine of mens rea (the guilty mind) is being eroded and replaced by the doctrine of malum prohibitum (wrong because prohibited). Anglo-American law has long considered mens rea to be an essential element of a crime. It requires that the state prove the defendant acted with a guilty mind. These crimes carry with them an element of moral culpability that reaches out to the ordinary citizen’s common sense. This protects the citizen of common intelligence and moral understanding from criminal, if not civil, prosecution for accidental or innocent conduct. Malum prohibitum offenses are those that are wrong only because the state says they are. These do not speak to the ordinary citizen’s consciousness of right and wrong. Many times they do not speak to the minds even of lawyers or judges not focused on the concerned specialized legal area.
The effects of running afoul of such criminal provisions can be devastating. Beyond possible fine and imprisonment are the consequences of prohibitive defense costs, civil disabilities and reputational damage. The cases of John Yates, Nancy Black and Dr. Peter Gleason illustrate some of the dangers common citizens face from this overgrown weed patch of criminal statutes.
Yates was prosecuted under the Sarbanes-Oxley Act for destroying tangible evidence of his crimes. The Sarbanes-Oxley Act is, of course, intended to address financial peculation and the destruction of documents and records that evidence such acts. Yates, however, was a small-time fisherman convicted of tossing some undersized red grouper fish over the side of his boat to disguise his violation of a size limitation law; a size law violation that might have resulted in a fine and temporary suspension of his commercial fishing license. The Sarbanes-Oxley violation on the other hand carried a possible 20-year prison sentence. In fact, Yates was sentenced to 30 days in jail and three years’ supervised probation. It goes almost without saying that Yates had no idea that he had violated a Sarbanes-Oxley rule, but conviction would have left him with the lifetime stigma of a federal criminal felony conviction. His conviction was upheld by the U.S. Court of Appeals for the 11th Circuit, but he was saved by a 5-4 Supreme Court reversal. Neither Nancy Black nor Dr. Gleason was as lucky.
Black has devoted her life to studying and protecting whales. In a persecution that would have made Victor Hugo’s Inspector Javert proud, the National Oceanic and Atmospheric Administration prosecuted Black under the 1863 False Claims Act, a law enacted to root out Civil War-era federal suppliers guilty of fraudulent misconduct. Black’s crimes were: first, two felony counts of lying to federal investigators by giving them an edited video of a whale “whistling-as-harassment” incident by one of her crew (an incident which in itself produced no charges against anyone), and; second, two misdemeanor counts of feeding killer whales by cutting a hole in a floating slab of blubber they were already feeding on to steady a camera and record their feeding activity. As a result of these alleged criminal offenses, Black’s house was raided, her scientific records and computer confiscated by an NOAA-led team of federal agents, and her professional colleagues warned not to communicate with her. After spending almost $100,000 defending herself, Black pleaded guilty to one misdemeanor, admitting that she had removed blubber from the water and returned it without a permit, and that her edited video “could” have impeded the NOAA whistling investigation. A statue designed to protect marine mammals was perverted by an overzealous federal agency into a device to torture a dedicated marine biologist and marine mammal advocate.
Gleason’s story has an even more tragic ending. Dr. Gleason, a psychiatrist, gave a lecture on off-label usage of a drug called Xyrem. As a doctor he was not restricted from promoting such usage. However, his lecture was sponsored by the drug’s manufacturer, who was forbidden from doing so. Dr. Gleason was prosecuted for conspiracy to promote off-label usage, saw his assets seized as the alleged ill-gotten gains of his transgressions, lost his life’s savings, and pleaded guilty to a misdemeanor. He was fined $25 and sentenced to a year’s probation. His guilty plea caused him to lose his license to practice medicine. Dr. Gleason’s co-defendant, a drug sales representative, opted to fight the indictment on First Amendment grounds and won. That victory came too late to help Dr. Gleason. He had hanged himself in his humiliation.
None of these three people knew that they had violated any criminal statutes. Nevertheless, they faced the disruption, financial distress and professional harm of a criminal prosecution. A criminal justice system with more than a quarter-million estimated possible criminal violations—many of which do not require knowledge or intent—is flawed. It needs repair. We suggest, first, that the Congress and the Connecticut Legislature undertake comprehensive reviews of existing statutes and regulations to determine which carry potential criminal liability and, second, that comprehensive acts be passed by each to establish proof of mens rea beyond a reasonable doubt as a necessary element of any criminal conviction. •