Intent Matters in the Land of Enchantment


Criminal justice reform was the center of focus in the Land of Enchantment last week, as the Charles Koch Institute joined with the Rio Grande Foundation in Albuquerque to discuss the negative implications of overcriminalization in New Mexico. Also participating were experts from the National Association of Criminal Defense Lawyers and the Buckeye Institute, as well as Bobby Unser, a car racing legend who won the Indianapolis 500 three times. All were eager to talk about the role of criminal intent in the justice system.

“At the federal level alone, there are more than 4,400 criminal laws and an estimated more than 300,000 criminal regulations. New Mexico’s legal code adds many more to that tally. There are now so many laws, we cannot help but violate some of them,” explained Paul Gessing, president of the Rio Grande Foundation. Traditionally, crimes have consisted of both a guilty act (actus reus) and a guilty state of mind (mens rea). But, Gessing argued, “Over time, legislators have increasingly forgotten about that second part. By not requiring criminal intent as part of the law, it does not matter that you did not know that you were committing a crime. It does not matter that you did not mean to commit a crime.”

For Bobby Unser, this lack of consideration for criminal intent is personal. In 1996, Unser and a friend were lost after a blizzard interrupted their snowmobile trek. After two days trapped in the mountains, the men were rescued; but when Unser attempted to recover his snowmobile, the National Forest Service charged him with having illegally ridden in a protected wilderness area—despite the fact that Unser had been lost and blinded by snow. “Just going to the Supreme Court … cost [the prosecution] more than a million dollars,” Unser told the audience as he recounted their legal battle. The result of the government’s insistence? A conviction carrying a total fine of $75.

Unser’s story is unfortunately not uncommon in the contemporary justice system, observed Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. “The intent requirement in a criminal statute is the moral anchor of our law. That’s the fundamental concept that we have to keep our eye on,” Reimer said. Reimer argued that the absence of mens rea requirements in criminal statutes is particularly harmful because of the stigma a criminal conviction carries compared to civil suits. “When you are prosecuted criminally, you not only have to bear the tremendous expense of defending yourself, but look at what is at stake—your property, your reputation, your future, your freedom.”

Robert Alt, president and CEO of the Buckeye Institute, explained that Ohio has been a pioneer in tackling overcriminalization, and he sees a path for New Mexico to follow suit. “Criminal offenses are often thrown into legislation like Christmas ornaments,” Alt said. But under a new law in Ohio, statutes that do not include a clear criminal intent requirement are automatically void. After seeing the reform replicated in Michigan, Alt said he was most pleased that the issue “was bringing together a diverse coalition.”

“This is not a binary thing,” argued Vikrant Reddy, senior research fellow at the Charles Koch Institute. “You can do something intentionally, you can do something recklessly, you can do something negligently, or you can do something with no knowledge whatsoever. … All we want is to be stronger about including these levels into a law,” Reddy told the audience.

Ultimately, Gessing remains hopeful that change is possible for the criminal justice system: “Last year, New Mexico made great strides to improve our criminal justice system by reforming our civil asset forfeiture laws. While there is more work to be done to make that reform a reality, we also have the opportunity to think bigger and work to protect all of our rights.”

In order to explore such opportunities, the Charles Koch Foundation invites proposals for research on this topic and others related to criminal justice and policing reform.

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