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Regulatory Crimes

When most people think about different types of crimes, they usually consider historically common crimes such as theft, assault, fraud, and murder.  Crimes typically contain two major elements - an act, known as "actus reus," and "mens rea," or mental state.  As a result of the anatomy of criminal laws, prosecutors are required to prove all of the elements of a crime if they wish to win a conviction.  An article titled "Federal Crimes and the Destruction of Law" discusses the nature of prosecutorial discretion in pursuing charges against a defendant and quotes former U.S. Attorney General Robert H. Jackson, who warned that federal prosecutors risked "losing perspective on the limits of their powers" and the "danger was that prosecutors would target individuals for prosecution, and then look for a crime to prosecute."

A Stark Evolution in Criminal law...

Regulatory crimes typically lack a mens rea, or intent requirement. Their purpose is to communicate the seriousness of the violation and the harm that may result from that violation. Normally, a person who accidentally violates a criminal law will not be punished if they did not intend to cause the resulting harm. In contrast, regulatory laws find criminal liability regardless of whether the action leading to criminal liability was accidental or purposeful.

A Tennessee Law Review Article written by Michael Cottone explains that the number of federal statutes creating criminal punishment has grown, and according to congressional testimony, the "number of federal regulations enacted by administrative agencies under loose authority from Congress carrying criminal penalties may be as many as 300,000." One of the major problems arising from this fact is that people simply cannot keep track of all the criminal laws that exist, rendering them ineffective at modifying harmful behavior. This phenomenon is also known as "malum prohibitum" which means that actions are criminal simply because the law says they are, as opposed to "malum in se" or self-evidently morally wrong behavior.

Example

A Wall Street Journal article reports that Lawrence Lewis, chief engineer at a military retirement home, was convicted for violating the Clean Water Act because he and his staff diverted backed up sewage into a storm drain he believed was connected to a city sewage treatment plant. Instead, the drain emptied into a creek that drained into the Potomac River. Mr. Lewis pled guilty in federal court and was given a year of probation and received court-ordered supervision.

Mr. Lewis' lawyer states "'There was no fight to have. It was a strict liability case," meaning the government did not have to prove Mr. Lewis knew he was doing anything wrong. His lawyer went on to state "His good intentions did not matter," and that to be found guilty, prosecutors only needed to prove that he was aware that sewage was being pumped into the storm drain that led to the creek.


In addition to Mr. Lewis' case, it is also possible to be criminally charged for picking up and taking home bald eagle feathers, and for snowmobiling in the wrong part of a national forest as the result of getting lost in a snowstorm.

To quote law professor Glenn Reynolds, "Law that can't be known is no law at all." If you have been charged for violating a federal regulatory crime, do not hesitate to contact George F. Hildebrandt, Attorney at Law immediately.

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