Not even the federal government knows how many criminal statutes exist. Seriously. The last time anyone tried to count them was in 1982 when the Department of Justice endeavored to convince Congress to simplify the criminal code. Their effort failed, and since that time the criminal code has expanded exponentially.
The sheer volume of criminal offenses makes it impossible for even a legal scholar to be aware of every criminal offense. The ordinary American has no chance. Nevertheless, prosecutors insist in defending the old legal maxim that, “ignorance of the law is no defense.” That maxim might be appropriate for a society that criminalized only inherently evil conduct such as murder, rape and arson.
Our nation has chosen to also criminalize the movement of manure, the advertisement of beer taste test results, and the size of the word “margarine” on a tub of Country Crock. [The above crimes can be found at the following citations respectively: 27 USC §§205(f), 207 & 27 CFR §7.55(b)(3); 7 USC §7734 & 7 CFR §301.85(b)(1); and 21 USC §§331, 333, 347 & 21 CFR §166.40(c)(3)]
Consider the case of Carlton Wilson. In 1997, Mr. Wilson was involved in a divorce case with his soon to be ex-wife. During the proceeding, the parties were granted mutual restraining orders against one another. Both Mr. and Mrs. Wilson were ordered to stay away from each other. A couple of months later, while the divorce was still pending, Mr. Wilson was pulled over for a traffic stop and the police found his shotgun in the back of his truck along with his hunting rifle. Mr. Wilson was arrested for a federal crime of possessing a firearm while subject to a restraining order. (18 U.S.C. § 922(g)(8)).
Mr. Wilson owned both firearms before the restraining order went into effect. The restraining order was entered into by agreement and against both husband and wife. The restraining order did not give any notice to either Mr. or Mrs. Wilson that they could no longer possess firearms. The judge in the divorce case who issued the restraining order never told the Wilsons that they were not allowed to possess firearms. There was never any allegation that Mr. Wilson ever used the firearms in any illegal way. Nevertheless, the prosecutor and later a federal judge insisted that “ignorance of the law is no excuse.” Mr. Wilson was convicted of violating the federal statute and was sentenced to serve 41 months in prison, given a $7,500 fine, and placed on supervised release for three years following his imprisonment. All because he didn’t know, and was never told, that he couldn’t possess a firearm while the protection order in his divorce case was in place.
It is simply outrageous for the government to place a legal duty on every citizen to “know” every mindboggling law, regulation, and rule that exists. Policymakers should enact laws which require some amount of scienter, or knowledge of wrongdoing, in order to carry criminal liability. We already do this for some of our laws. Tax evasion, for example, requires that a person “willfully” fail to pay their taxes in order for the conduct to become criminal. You can’t be thrown in jail for a math mistake, but too many of our laws lack this type of requirement.
Consider the case of Dane Yirkovsky. He agreed to do some remodeling for his landlord in exchange for a few months of not having to pay rent. While removing some carpet, he found an old .22 caliber round crammed beneath a baseboard, and set the round in his toolbox. The next day Mr. Yirkovshy’s ex-girlfriend complained to the police that she believed he had possession of some of her things which she had left behind after they broke up. An officer investigated and asked to search Mr. Yirkovsky’s things. He didn’t find any of the ex-girlfriend’s property, but he did find the bullet and charged Mr. Yirkovsky with illegal possession of ammunition. Mr. Yirkovsky was convicted are required to serve 15 years in prison for possession of a single bullet he had planned to return to his landlord when next he saw her. He had no intent to do wrong, and indeed he had no idea he was even violating the law, but “ignorance is no excuse.”
A similar instance occurred to John Thorpe. He was robbed at gunpoint, but he fought off his attacker and wrestled the gun away. He then called the police, who responded and he handed them the gun he had taken from his attacker. Mr. Thorpe was then charged with the federal crime of possession of a firearm as a felon. The judge in the case acknowledged the absurd and overly harsh result, but he still convicted him, noting that a person did not need to intend to break the law in order to violate it.
These examples highlight some of the absurdity that can arise when we make laws which punish actions without consideration of intent. Criminal liability should ordinarily only apply when there is both a guilty mind and a guilty act. Our laws are long overdue for an overhaul.
John Judkins is a Greenfield attorney.