little over a half-century ago, an Army veterannamed Joseph Edward Morissette settled in small-town Michigan to raise his family. To support hiswife and young son, the 27-year-old worked as a fruitstand operator during the summer and as a trucker andscrap iron collector during the winter.His seemingly nor-mal life came to a screeching halt, however, when he wascharged with stealing from the U.S. government in 1952.His case would ultimately wend itsway through the federal court sys-tem and end up at the SupremeCourt.One time when Morissettewas out hunting for deer with hisbrother-in-law, he came across aheap of spent bomb casings on atract of uninhabited land locatedabout half a mile from a traveledroad and about six miles from themain highway. To Morissette, thecasings appeared abandoned.There were no signs posted to thecontrary, and, having sat in a pilethrough several harsh Michiganwinters, the casings were showingsigns of rust and decomposition.When Morissette failed to bag adeer to pay for his hunting trip, hecollected some of the casings,crushed them with his tractor, andsold them as scrap metal. The cas-ings yielded him $84.The land turned out to beOscoda Air Base, which the mili-tary used, according to the laterSupreme Court opinion, as “apractice bombing range overwhich the Air Force dropped sim-ulated bombs at ground targets.”

A police officer, likely concernedabout the large amount of bomb-shaped scrap metal heapedin thebed of Morissette’s truck, askedhim about the casings and referredthe matter to an FBI agent. That,in turn, led to Morissette’s beingindicted in federal court on thecharge that he “did unlawfully,willfully and knowingly steal andconvert” property of the UnitedStates in violation of a statute that provided that “who-ever embezzles, steals, purloins, or knowingly converts”government property is punishable by fine and impris-onment. Morissette was convicted and sentenced to twomonths in prison or a fine of $200.Morissette hadn’t realized that the casings were thegovernment’s property; he had taken them on theassumption that they were abandoned. In fact, he toldthe police officer who first questioned him that he didnot think they were of any use or that anybody wouldcare if he took them. Yet Morissette’s “innocent inten-tion” could not save him at trial. Despitethe facts, thetrial judge forbade Morissette’s lawyer to argue to the jury that his client acted with an “innocent intention,”because the judge concluded that Morissette’s guiltunder the statute was obvious and legally irrefutable: thebomb casings were on government property, andMorissette took them without permission. It was irrele-vant that Morissette might have reasonably believed thecasings were abandoned property, or even that this belief was based upon the government’s own failure to post a

The Decline andFall of

Mens Rea

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THE CHAMPION

BY HARVEY A. SILVERGLATE

This article is derived from Harvey Silverglate’s book,

Three Felonies a Day: How the Feds Target the Innocent

(Encounter Books 2009). It is printed with permission.

notice to the contrary. The question of whether Morissette

believed

he was notstealing, and of the government’s com-plicity in giving him that impression, didnot matter.It is important to note that the judge’s interpretation of the law departedfrom centuries of English common lawtradition, an evolving body of judge-made interpretive law with ancient roots,based on human experience and com-mon sense. The common law tradition,with rare and narrow exceptions, doesnot punish those, like Morissette, whoact with innocent intent. This approachto criminal law contains a vital moralcomponent — our society punishes only those who intentionally rather thaninadvertently violate the law.

When the U.S. Court of Appeals forthe Sixth Circuit heard Morissette’s appealin 1951, it upheld his conviction by a 2-1vote. By the judges’ statedlogic, it was a“technicality” that Morissette, who they acknowledged made “no effort at conceal-ment,” never intended to steal. When itcomes to statutory crimes defined by Congress, the two-judge majority argued,intent or knowledge is irrelevant unlessCongress appears to provide otherwise.Morissette wisely sought, and obtained,Supreme Court review.In its unanimous opinion, theSupreme Court threw out the appellatecourt’s decision and, with it,Morissette’sconviction.

Justice Robert H.Jacksondiscussed the historical role of

intent

incriminal cases and “the ancient require-ment of a culpable state of mind” thatmust accompany a culpable act. To con-vict one of a crime, there must be “anevil-meaning mind with an evil-doinghand” (for the technically minded,thetraditional common law notion of thecombination of the

actus reus

and the

mens rea

).Based on these centuries-oldrequirements, Justice Jackson concludedthat the courts could not presume fromthe silence of Congress that it did away with the criminal intent requirement, asthis “would conflict with the overridingpresumption of innocence with whichthe law endows the accused.” Jacksonnoted that, had the jurors been allowedto consider Morissette’s state of mind,“[t]hey might have concluded that theheaps of spent casings left in the hinter-land to rust away presented an appear-ance of unwanted and abandoned junk,”and from that they might “have refusedto brand Morissette as a thief.”Jackson and his fellow justices obvi-ously recognized the importance of theirhaving decided to review the Morissettecase, an undertaking extended to a smallminority of litigants who seek review by the High Court. “This would haveremained a profoundly insignificant caseto all except its immediate parties,”Jackson noted in the court’s opinion,“had it not been so tried and submittedto the jury as to raise questions both fun-damental and far-reaching in federalcriminal law.” And so this seemingly insignificant case had the potential toensure the continued presence of funda-mental principles of fairness and moralcontent in the federal criminal law. Buthow long would those positive develop-ments last?

Numerous and VagueFederal Criminal Laws

A few years before he wrote

Morissette v. United States

, Robert H.Jackson was serving as Franklin D.Roosevelt’s new attorney general.OnApril 1, 1940, Jackson assembled hiscadre of chief federal prosecutorsinWashington.

He wanted to speak tothem about a matter of grave concern —and it wasn’t the evils of crime or theneed to use every crime-fighting tool tothe fullest. Jackson’s subject, instead, wasthe untoward consequences of excessiveprosecutorial zeal.After explaining why a federal pros-ecutor must choose cases carefully andrecognize that not every crime can bepursued, Jackson turned to the heart of his talk: “If the prosecutor is obliged tochoose his cases, it follows that he canchoose his defendants.” Here one finds“the most dangerous power of the prose-cutor: that he will pick people that hethinks he should get, rather than pickcases that need to be prosecuted.”Jackson was no soft touch. He knewreal crimes when he saw them. Afterserving as attorney general for less thantwo years, he would become a SupremeCourt justice and serve as well as chief American war crimes prosecutor atNuremberg. But Jackson also under-stood the proper limits of power and thedangerous human impulse to exertpowerover others. The federal lawbooks, explained Jackson, are “filled witha great assortment of crimes,” and aprosecutor “stands a fair chance of find-ing at least a technical violation of someact on the part of almost anyone.”Prosecutors can easily succumb to thetemptation of first “picking the man andthen searching the law books, or puttinginvestigators to work, to pin someoffense on him.”Today, in spite of Jackson’s warning,it is only a slight exaggeration to say thatthe average busy professional in thiscountry wakes up in the morning, goesto work, comes home, takes care of per-sonal and family obligations, and thengoes to sleep, unaware that he or she like-ly committed several federal crimesthatday.Why?The answer lies in the very nature of modern federal criminal laws,which have become not only exceedingly numerous (Jackson’s main fear at thetime of his admonition to his prosecu-tors) and broad, but also, since Jackson’sday, impossibly vague. As the Morissettescenario indicated, federal criminal lawshave become dangerouslydisconnectedfrom the English common law traditionand its insistence on fair notice, so pros-ecutors can find some arguable federalcrime to apply to just about any one of us, even for the most seemingly innocu-ous conduct (and since the mid-1980shave done so increasingly).A study by the Federalist Society reported that, by the year 2003, the U.S.Code (listing all statutes enacted by Congress) contained more than 4,000criminal offenses,

up from 3,000 in1980. Even this figure understates thechallenge facing honest, law-abiding cit-izens. Since the New Deal era,Congresshas delegated to various administrativeagencies the task of writing the regula-tions that implement many congression-al statutes. This has spawned thousandsof additional pages of text that carry thesame force as congressionally enactedstatutes.

The volume of federal crimesin recent decades has exploded wellbeyond the statute books and into themorass of the Code of FederalRegulations, handing federal prosecu-tors an additional trove of often vagueand exceedingly complex and technicalprohibitions, one degree removed fromcongressional authority, on which tohang their hapless targets.This development may sound eso-teric to some — until they find them-selves at the wrong end of an FBI investi-gation into, or indictment for, practicesthey deem perfectly acceptable. It is thenthat citizens begin to understand thedanger posed to civil liberties when ournormal daily activities expose us topotential prosecution at the whim of agovernment official.The dangers spelled out here do notapply only to “white collar criminals,”state and local politicians, and myriadprofessionals.No field of work or socialclass is safe from this troubling form of executive branch overreaching and socialcontrol, and nothing less than theintegrity of our constitutional democra-

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T H E D E C L I N E A N D F A L L O F

M E N S R E A

cy hangs in the balance. After all, whenevery citizen is vulnerable to prosecutionand prison, then there is no effectivecounterweight to reign in governmentoverreaching in every sphere. The hal-lowed notion of “a government of laws”becomes a cruel and cynical joke.

Dorothy Garber

When I began practicing law in1967, I hung out my shingle as a “crimi-nal defense and civil liberties lawyer.” Ilinked the two practice areas because,during the turbulent 1960s, it seemedthat defending people accused of crimeoften was an exercise in the defense of freedom of speech, freedom of religion,freedom of association, or proceduraldue process of law. Our firm’s typicalcases involved what we called “the threeDs”: drugs, draft, and demonstrations. Afew years later a large numberof genderdiscrimination cases were added to themix, but much of our work remainedfocused on the three Ds.I recognized that I made a goodpart of my living defending people whodid very bad things (assault, robbery,murder, mayhem, larceny, and fraud,for example). Many committed thecrimes charged while some did not.However, the charges against thementailed conduct that reasonable peo-ple, ordinary citizens and lawyers alike,would rightly regard as criminal, andthe indictments were based on statutesthat were readily understandable. Onecould argue that some actions shouldnot be criminal, such as possession of marijuana, but the crimes charged wereusually clearly defined.Then, about 15 years into my lawpractice, I noticed a shift in the federalcourts. More and more of my clients(physicians, bankers, academics, scien-tists, investors, newspaper reporters,accountants, artists, and photographers[the “three Ds” had by then given way toa more diverse clientele]) were beinginvestigated and prosecuted for conductthat neither they nor I instinctively viewed as criminal. As I prepared todefend againstthe charges, I could notrid myself of the unsettling notion thatthe federal criminal laws were becomingvaguer and harder to understand withthe passage of time.Consider the plight of Dorothy Garber. She ran afoul of the federal taxcode, widely viewed as a confusing mish-mash of arcane, complex, and often con-flicting rules and interpretations. Assuch, tax prosecutions traditionally wereto be brought only where the regulationhad been sufficiently clarified so that thetaxpayer could reasonably be said to haveintentionally violated a known legal duty to pay taxes owed. The taxing authoritieswere supposed to exercise wise discretionin deciding whether to seek to collect atax in a civilenforcement proceeding, orto seek to punish criminallya tax evaderwho should have known better.Dorothy Garber’s case reached theFlorida federal courts in the late 1970s.This taxpayer was blessed (or perhaps,under the circumstances, cursed) with arare trait: her body manufactured anextraordinarily valuable antibody used tomake blood-typing serum. Garber fre-quently sold her antibodies to a pharma-ceutical company by the process of plasmapharesis, i.e., the removal, treat-ment, and return of blood plasma fromand to her circulation, a procedure thatwas both uncomfortable and potentially dangerous. She underwent plasmaphare-sis sometimes as often as six times amonth and was handsomely paid for hertrouble. In 1972, she earned a weekly salary of $200. In addition, she was pro-vided a leased automobile and a $25,000bonus. She earned a total of $87,200 that year, and nearly as much in each of thetwo previous years.Garber failed to report as incomeany of this money except her weekly $200 salary. Consequently, she wascharged with criminal tax evasion. Herdefense was intriguing, more a reflectionof the conundrum of the federal taxcode perhaps than of her alleged dishon-esty. Examples of nontaxable transac-tions, some of which produce monetary gains, are found scattered throughoutthe tax code in various contexts. Forexample, if one owns some physicalitem, a “capital asset,” and sells that assetfor one’s cost, however calculated, thereis no taxable gain. If one is injured in anaccident, compensation for pain andsuffering is not taxable, in contrast tocompensation for lost wages. These spe-cial categories of assets and of revenue,many of which get quite technical, oftenconfound even the most experienced taxlawyers and accountants.Garber, a lay person, argued that herbody was a “capital asset” under theInternal Revenue Code, and that whenshe sold a portion of that asset, the salewas a nontaxable exchange because thetax cost basis of the asset with which sheparted, i.e., her blood plasma, was pre-cisely equal to the funds she received.The funds merely replaced the plasmashe gave to the laboratory and thereforewere neither proceeds of a business norpayment for services, either of whichwould render the proceeds taxable as“earned income.”The U.S. Court of Appeals for theFifth Circuit saw the issue as “a uniquelegal question,”

noting that Garber testi-fied “that she thought, after speaking withother blood donors, that because she wasselling a part of her body, the money received was not taxable.” The trial judgehad told the jury that monetary proceedsof such plasma donations were taxableand refused to allow Garber’s defensecounsel to present expert witnesses whowould say otherwise.In reversing her conviction, thecourt of appeals decided not only thatshe had a right to present her capitalexchange theory supported by expert tes-timony, but that “no court has yet deter-mined whether payments received by adonor of blood or blood components aretaxable as income.” If Garber performeda service, it was taxable; if, on the otherhand, “blood plasma, like a chicken’seggs, a sheep’s wool, or any salable part of the human body,” is tangible property,then her revenues were not taxable. Mostimportantly, the court declared that,because the law was vague and unsettled,“a

criminal

proceeding … is an

inappro- priate vehicle

for pioneering interpreta-tions of tax law.”

In other words, thegovernment should have brought a civilaction against Garber to seek collectionof the tax owed, not a criminal one topunish her.Today, the Justice Departmentencourages federal prosecutors to doexactly what the

Garber

court con-demned. In particular, federal prosecu-tors’ novel use of long-standing bututterly formless “anti-fraud” laws,which cover increasingly vast areas of American life, threaten honest (andapparently law-abiding) business execu-tives and other professionals, as well asother ordinary citizens. In 2003,Michael Chertoff, then second in com-mand of the Justice Department’sCriminal Division, even went so far asto boldly declare that federal prosecu-tors should exploit anti-fraud provi-sions to indict business executivesbecause “criminal prosecution is a spurfor institutional reform.”

The federal government’s preferencefor criminal prosecutions (over eithercivil prosecution or “institutionalreform” via the legislative branch) toexpand the reach of the law is not limit-ed to vague “anti-fraud” statutes and reg-ulations. The same can be said for othernow commonly used statutes — conspir-acy, bribery, and extortion, among oth-ers. Even the most intelligent and

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