America is much less the land of the free than it is the land where everything is illegal, where, as John Stossel pointed out in 2012, “No one can know what is legal.” Today, America’s statutory codes are brimful with increasingly more obscure crimes—so many crimes that no single mind could possibly be aware of them all. The sphere of individual liberty is steadily narrowing, the list of forbidden activities growing ever longer.
In a free society, laws should be few in number, all representing specifically tailored iterations of the one general law: that each individual has a sphere of autonomy inside of which he is protected against criminal invasion. Every good law must be only a special case of this one law, this one right that attaches equally and identically to every individual.
The criminalization of everything places the citizen (more accurately, subject) in a position of permanent legal precarity, never sure whether he might, quite unwittingly, be acting in contravention of some obscure rule, a sitting duck for the bullying police officer or meddlesome bureaucrat. Such overcriminalization allows the state, especially those charged with enforcement, just the kind of discretion that renders the law arbitrary. Instead of a few laws whose terms are unambiguous and widely known, Americans are drowning in a seemingly fathomless sea of inscrutable rules.
Famously obsessed with the law and the courts, Americans ourselves are not entirely without blame. In our narrow focus on protecting our own rights and freedoms, we have neglected those of our neighbors, forgetting the difference between something that we don’t like and something that the coercive power of the law ought to forbid. And we have forgotten at our own peril, for once the law’s might is allowed outside of its proper scope—the protection of life, liberty, and property—it becomes a tool for tyranny. Americans have unthinkingly guarded our pet tyrannies, unable to see that we thereby commit the crime we accuse our neighbors of committing.
Mens rea reform is one way to address this problem; it helps us answer this important question: What is a crime? The traditional common law generally looked for two elements, not only a particular act, or actus reus, but a certain culpable mental state, a guilty mind, expressed by the Latin term mens rea. Strict liability crimes are those offenses for which no specific mental state is required; this means one can commit a crime without knowing that the prohibited activity is unlawful.
The 19th-century legal theorist Lysander Spooner noted that this, “the design to injure the person or property of another,” is “the very essence of crime,” and that where this is wanting, we are in the sphere of vice. Spooner understood that in a society that conflates these two concepts, crime and vice, “there can be on earth no such thing as individual right, liberty, or property.”
A guilty mind is, on its own, a matter outside the proper ambit of the legal system, a matter of individual conscience to be addressed through, perhaps, psychotherapy or by one’s ecclesiastical authorities. A free society does not attempt to reach into our minds and criminalize those of our thoughts that are malevolent or misanthropic. Likewise, a harmful act alone—that is, absent the requisite mental state—ought to be remedied through the civil courts, the injured made whole through an action in tort.
Perhaps surprisingly, even some progressive groups have opposed mens rea reform, worried that the difficulties of proving the exacting legal standard of willfulness could mean an easy escape for many white-collar criminals. Classical liberals and libertarians, whose ideas are so often characterized as mere selfishness, are the one group that solicitously looks after the rights of all individuals.
To make matters still worse, not only do the definitions of many crimes lack a mens rea element, they often also lack the requirement that there be a victim; one may engage in a perfectly peaceful activity, do something that hurts no one, and nevertheless find himself charged with a serious crime that carries a prison sentence. Justice cannot abide such a body of criminal law. By returning to the traditional element of demonstrable intent to harm, the legal system can excise many of these victimless crimes.