There are so many crimes and they’re so easy to commit, that every one of us is a potential felon. And that’s why a Supreme Court ruling last Monday is potentially the most important decision this year.
The case involved Anthony Douglas Elonis, not someone we’d want to invite home to meet mother. Under the Facebook persona of “Tone Dougie,” Elonis spoke of his soon-to-be ex-wife in language which the Court called “crude, degrading, and violent.” He also seemingly threatened a co-worker and an elementary school. The FBI monitored his postings, and after a visit from two agents he wrote “Little Agent lady stand so close / Took all the strength I had not to turn the b**** ghost / Pull my knife, flick my wrist, and slit her throat.”
Not very cool, but in his defense Elonis described all this as nothing more than rap lyrics in the style of Eminem, a cathartic exercise which permitted him to deal with his pain. He had explained on Facebook that he never intended to harm anyone. The question for the Court, then, was whether a person could be convicted of a crime if he didn’t intend to do harm.
The statute was silent on this, but writing for the Court John Roberts held that a intentionality requirement should nevertheless be implied. Quoting Justice Jackson in Morissette v. U.S., the Chief Justice ruled that the principle that criminal wrongdoing must be intentional is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
Sadly, strict liability offenses which dispense with the need to prove a guilty mind have made a comeback, in the form of “public welfare crimes.” These are regulatory offenses that seek to protect the public’s welfare by dispensing with the accused’s defense that he didn’t mean any harm. In other words, the need to prove intention was getting in the way of securing convictions, when public welfare was at issue. The problem, however, is that strict liability puts well-meaning people at risk of the most severe restrictions on liberty the state can impose. With a guilty mind requirement, a person at least knows when he’s doing wrong, but he won’t be tipped off when intention is irrelevant.
It’s not simply that morally innocent people can commit technical crimes. What makes it worse is that federal criminal offenses are numberless, and you’ll never know when you’re breaking one of them. Julie O’Sullivan describes federal criminal law as “an incomprehensible, random and incoherent, duplicative, incomplete, and organizationally nonsensical mass of federal legislation.” Here are some of the evils that are proscribed: transporting alligator grass across a state line, unauthorized use of the slogan “Give a Hoot, Don’t Pollute,” and wearing a postal worker’s uniform in a theatrical production that tends to discredit the postal service. That’s today’s America, where the law on the books can make every American a felon.
What Elonis gives us is simply a rule of interpretation, one that a legislature may override by specifying that a guilty mind is not required, that the act alone suffices. And a legislature minded to put the morally innocent into prison might do just that. Where it hasn’t, however, the Elonis decision invites litigation to strike down public welfare offenses that can put people in jail. And even where the legislator has stipulated that a guilty mind is irrelevant, the Supreme Court might be invited to follow the 1985 Canadian Supreme Court decision in Re B.C. Motor Vehicle Act, which held that “a law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty.”