Alibi V.25 No.7 • Feb 18-24, 2016 


What You Don’t Know About Not Knowing

N.M. and the criminal intent debate

Cage Face

Bobby Unser is the most spry 81-year-old I've ever seen. He's known for winning the Indy 500 three times, and—as he told a crowd at the Hotel Albuquerque two weeks ago—for surviving two nights in the sub-zero Colorado wilderness in 1996. Well, he's not actually famous for the survival part, but for the battle he would later wage against the federal government when—after being rescued by state police in a near-death state—the feds dropped a fine on him for the “unlawful operation of a snowmobile within a National Forest Wilderness Area.” His excuse was that he was lost in a blizzard and had no idea where he was; a pretty good one if you ask me, but apparently not good enough for the US Forest Service.

It's an awful story, and the fact that Unser decided to fight the small fee (reported as a mere $75) by spending a small fortune on appeals made him into a kind of Robin Hood to the little guy, fighting a bloated bureaucracy purely on principle. But why had the Charles Koch Institute and the Rio Grande Foundation (the local Libertarian “think tank”) put together a press conference—“Intent Matters: Overcriminalization in New Mexico”—to let an old man tell a 45-minute story about something that happened 20 years ago?

To find out, we need to head over to Washington, D.C. and look at the Sentencing Reform and Corrections Act of 2015, which, if passed, will reduce the sentences for nonviolent drug crimes and provide inmates with more rehabilitation programs. In a rare show, the Right and Left seem to be in agreement about prison reform, but some Republicans in Congress are saying they won't let the bill pass if it doesn't include an all-encompassing “mens rea” provision that will establish a new standard of intent for all federal laws, meaning ignorance will be a valid excuse for violating a law.

This slick wiggle is all part of a movement of sorts (backed by—surprise—oil company Koch Industries) that believes we are in a state of “overcriminalization.” Paul Gessing, president of the Rio Grande Foundation, summed it up while introducing Unser to the packed room, “There are more than 4,400 criminal laws and an estimated more than 300,000 criminal regulations... There are now so many laws, we cannot help but violate some of them.” Those are estimates, by the way. No one out there seems able to give any definitive numbers, including lawmakers, and Gessing's number is conservative compared to some more off-the-wall ones.

Gessing also quoted civil liberties attorney Harvey A. Silverglate, who wrote Three Felonies a Day: How the Feds Target the Innocent, which points out how the average person can violate the more obscure laws without even knowing it—like putting an eagle feather in your pocket (Bald and Golden Eagle Protection Act) or calling in sick when you're just playing hookie (”scheme and artifice to defraud”).

It's a valid issue that probably needs to be discussed. Lawmakers are most likely a little too trigger-happy. But all of these “real-life” examples they keep referencing seem strange coming from corporate attorneys who probably wouldn't give the average person five minutes of their time. Objectors to mens rea reform have pointed out that the Koch Institute’s motivation probably isn't to keep people like you, me and Bobby Unser from being pummeled unjustly by a power-mad government, but to give corporations an easy excuse for violating federal regulations.

Picture this: Big Fat Manufacturing Co. gets caught dumping the highly toxic “chemical X” into the river. Chemical X has just been labeled a “hazardous waste” two weeks before. “But wait,” says the CEO, “We didn't know that was a rule!” The feds give him their most earnest look of reproach. “O-kay. But don't do it again.” Brr.

Koch Industries is also attacking the “problem” at the state level. In the past two years, thanks largely to the influence of the Kochs, Ohio and Michigan have both made moves in mens rea reformation, and though there is no official discussion of the subject at the moment, holding a press conference like this can only mean that they're working locals up before going after New Mexico next.

This is just another battle in the ongoing war over corporate regulation, snuck in under the angle of public concern (though proponents argue otherwise). And, as always seems to happen, everybody is more than willing to let their knees jerk and fall into line with whatever ideology they happen to follow when a hot word like “regulation” lights up their brain. If you're on the Right, it means Big Government sticking its nose where it doesn't belong; if you’re on the Left, it means forcing Big Business to show restraint when it comes to safety and environmental awareness. Neither of these is completely true. A world with over-regulation makes everyone a criminal, but one without would look like a Dickens novel on angel dust.

Which is why a more nuanced approach to the problem needs to be considered. Don't make the easy mistake of letting your party affiliations do your thinking for you. Three hundred thousand regulations is way too many, but giving corporations the ability to just sidestep them doesn't sound like a good alternative. The “over-criminalization” issue needs to be dealt with on a law-by-law basis, with a critical eye placed on regulations that are unrealistic or faulty in some way. This is not an either/or dilemma.