Jul 24, 2011

Posted in Original Crime

Does “Ignorance of the Law Excuses No One” Make Sense When No One Knows How Many Laws Exist?

The WSJ has a lengthy piece about the proliferation of federal criminal laws,  and tells the story of a number of people who unknowingly violated obscure federal criminal statutes–many of which lack a mens rea requirement–including history buff Eddie Leroy Anderson, who violated the 1979 Archaeological Resources Protection Act by removing arrowheads from federal land without a permit.

Should society hold people accountable for violating laws–without any mens rea–that few if any experts know exist? Judge Posner addressed just this point in his dissent in United States v. Wilson:

We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone “ignorance of the law is no defense” is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.

Even if Anderson were to go to the local law library, and read through the entirety of Title 18, it’s unlikely he would be able to learn all of the federal laws. As the WSJ piece points out, several attempts at cataloguing all federal crimes, including violations of regulations that carry criminal penalties, by the Department of Justice, the American Bar Association, and others have failed.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”  . . .  Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

So if the smartest legal minds are unable to list all of the federal crimes, how can we hold people like Anderson culpable for violation of essentially unknown federal laws that lack any intent requirement? Is Posner right to say we are condoning a violation of a fundamental principle of justice for the sake of a “modest economy in the administration of criminal justice”? Is ignorance of the law no longer a valid excuse? If so, what would the remedy be?

Cross-Posted at ConcurringOpinions.com.

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  • It’s fantastic that this story is finally getting some real attention, after spending so long trapped in the libertarian blogpits.
    So, the courts are obviously powerless to do anything. Any attempt to check the growth of federal law will be circumvented a la [i]Lopez[/i] and [i]Free Speech Coalition[/i].
    The legislature has no incentive to stop passing idiotic laws, and the people are to foolish to care until it affects them personally.
    So I doubt we’ll see any improvement until the number of convictions reaches the level where 51% of families have a member in Federal prison…

  • Ah, no BBCode, apparently. Just imagine the italics.

  • What is the alternative? If the legislature does not want people to do things, it has to enact a law. You can say that people should not have to read up every day about Title 18, but what is the alternative? Not pass laws and let people do what they want? Spend money on publicity? Tell people to restrict their activities until they do research (so they would know not to meddle with anything on federal lands)?

    Rhetoric is easy here; policy is not.

    • Josh Blackman

      Why is it so important to criminalize things people generally have no idea about? Maybe criminal laws should be limited to things people are actually aware of? Punitive civil laws can be used to punish those other esoteric areas.

      • Punitive civil laws might do it, but you can be sure that the same people who criticize the use of criminal laws will simply transfer their criticism to punitive civil laws, especially since there could well be a lower standard of proof.

        • Josh Blackman

          Punitive civil laws do not carry the requisite relinquishment of numerous civil rights (voting, right to keep and bear arms, lots of searches without cause while on probation, etc.) and liberties (most important of which is getting stuck in prison).

          Anyway, any meaningful criminal defense of a federal prosecution costs a lot. I’d much rather pay that amount as a civil penalty, rather than paying it, and risking the outcome on a jury finding.

  • “The legislature has no incentive to stop passing idiotic laws, and the people are to foolish to care until it affects them personally.”

    Why is the 1979 Archaeological Resources Protection Act an “idiotic law[]”?

  • Has the Supreme Court ever ruled on whether mens rea is constitutionally required for specified conduct to be adjudgeable as a crime? I think that certain “economic” crimes exist in which there is strict liability, but I do not know whether the Supremes have ever decided this matter.

    • Josh Blackman

      That’s a good question. I hated the idea of strict liability in torts. I hate it even more in criminal law.

      • Do you oppose the concept of vicarious liability as well?

        • Josh Blackman

          I have less of a problem with liability through agency laws. The entire principal-agent relationship is voluntarily entered into, and a principal can be on notice that he or she will be liable for dumb crap an agent does.

          • Josh Blackman

            And, as I recall, if the agent is on a “Frolic or detour” and is no longer acting within the scope of the agency, the principal is not liable. This differs from a strict liability crime where liability *always* attaches no matter what the circumstances.

  • Wikipedia has some discussion of the issue. See http://en.wikipedia.org/wiki/Strict_liability_%28criminal%29. See also http://en.wikipedia.org/wiki/Strict_liability_%28criminal%29 and http://www.mojolaw.com/info/cl047.

    Statutory rape, manslaughter, and vehicle infractions are examples of strict-liability crimes.

  • If ignorance of the law were a valid defense, then could someone who comes from a culture in which honor killings are accepted claim that he did not know that, in this country, it is against the law to kill someone for marrying outside the faith or for refusing to marry the man who raped her?

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