Accidental Criminals: Why New Mexico Needs Mens Rea (criminal intent) Reform

(Albuquerque) New Mexico could make significant improvements to its criminal justice system by embracing a common-law principle called mens rea.

A new Rio Grande Foundation paper describes in detail why the New Mexico Legislature should embrace the principle of “guilty conscience” in criminal justice. As described by Roscoe Pound, the dean of Harvard Law School from 1916 to 1936: “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”

In the late 19th century, industrialization prompted the creation of regulatory authorities at the federal, state, and local levels. Over the decades, and continuing today, a myriad of rules came to govern “the environment around us, the food we eat, the drugs we take, health, transportation, and housing, among many others.”

One of the best examples of an egregious strict-liability prosecution at the federal level occurred in the Land of Enchantment. In 1996, Bobby Unser, a three-time winner of the Indianapolis 500, went snowmobiling with a friend near Chama. A flash snowstorm blew in, and whiteout conditions caused Unser and his companion to become trapped.

Severely ill and exhausted after two days and two nights, the men found a barn with a phone and called for help. But once Unser informed the US Forest Service of the incident, he was prosecuted for entering a “wilderness” area – even though there was no proof that such a violation took place. In 1997 he was convicted and fined by US District Judge Lewis Bacock. The conviction was appealed, but ultimately Unser’s prosecution was left to stand after the US Supreme Court refused to hear the case.

Unser’s case illustrates broader problems with the lack of a mens rea requirement. The New Mexico Legislature can take another step – as it did in 2015 with standard-setting civil asset forfeiture reforms – to reverse the tide of overcriminalization while continuing to protect those who are genuinely harmed by bad actors.

The full paper, “Accidental Criminals: Why New Mexico Needs Mens Rea Reform” is available here.

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2 Replies to “Accidental Criminals: Why New Mexico Needs Mens Rea (criminal intent) Reform”

  1. The Unser prosecution dealt with the intentional tort of trespass . Trespass law does not require that you know your are walking on prohibited land. It only requires that you were intentionally walking where you were. It’s an oddity of the law that we inherited from England and has been on the books for centuries.

    I very much agree with your statement that criminal prosecutions should require both actus rea and mens rea. I have seen some egregious prosecutions, especially in the environmental area, against unknowing defendants. Although lack of knowledge of the law is not an excuse (otherwise people would intentionally NOT learn the law), the blizzard of laws and regulations on the books makes it virtually impossible to know all the laws criminalizing conduct.

  2. But Men’s Rea might have unintended consequences. For example, Hillary Clinton could theoretically be acquitted over her abuse of classified emails because she did not “intend” to do harm. Plus it is very difficult to prove intent and therefore more criminals are let go.

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