A politically disparate, influential group of thought-heavyweights has its eye on New Mexico for a clampdown on government prosecutions of people for crimes they didn’t know they’d committed.
Last week, the Charles Koch Institute and the Rio Grande Foundation, New Mexico’s libertarian think tank, co-sponsored a discussion in Albuquerque about what they call “over-criminalization.” At their side was the executive director of the National Association of Criminal Defense Lawyers.
Kicking off the event, Indy car racing legend and New Mexico icon Bobby Unser described in florid detail his tangle with the federal government over an obscure law it used to charge him 20 years ago. As Unser explained it, he survived a harrowing trek through the mountains in blizzard conditions, only to be slapped with a fine once he emerged.
Politics have not made strange bedfellows of the Koch brothers, billionaire standard bearers for conservative and corporate America, and the criminal defense lawyers association, a traditionally liberal organization.
Rather, criminal justice reform has.
Increasingly, the left-right divide is vanishing on topics from mandatory minimum sentences to civil asset forfeiture to heavy-handed police tactics.
The issue on the stage at the Hotel Albuquerque last week: “mens rea reform,” also known as “intent reform.”
“Mens rea” means “guilty mind,” and it is the immediate sibling of actus reus, or “guilty act.” Together, as any first-year law student could attest, they form the basis of what the government is supposed to prove to convict someone of a crime: that a defendant committed an illegal act, and that the defendant intended to do so.
The problem, according to the forum’s participants: Policymakers have fatted the statute books with laws long on the act, but short on the mind. Legislators have passed too many laws without a clear standard of intent, they say.
In 2010, the criminal defense lawyers group and the conservative Heritage Foundation coauthored a report on what they called the erosion of intent requirements in federal law.
Panelists at last week’s forum pointed out that there are more than 4,400 federal laws on the books and hundreds more enshrined in New Mexico statutes. They asked: Would it be reasonable for citizens to know them all? And would it be reasonable for the government to prosecute people under a law they didn’t know existed — let alone intended to break?
Their short answer is no, it is not reasonable. And New Mexico could be the perfect place for ensuring mens rea requirements are specified in criminal law.
After all, this is a state with a tough-on-crime former prosecutor for a governor who, to the surprise of many, signed into law last year one of the nation’s most sweeping sets of restrictions on the practice of law enforcement confiscating people’s property prior to conviction.
The Charles Koch Institute’s Vikrant Reddy said in a telephone interview that he believes Gov. Susana Martinez’s willingness to move forward on civil asset forfeiture reform—and the state’s “thoughtful, serious” approach to complex criminal justice issues—may signal an opening for mens rea changes here as well.
Martinez has been linked to the Kochs before. In 2013, she attended a secret confab of wealthy donors hosted by the Koch brothers at the Hyatt Regency Tamaya Resort in Bernalillo. And between 2010 and 2014, Koch Industries donated more than $20,000 to her political campaigns.
About 75 people attended the Albuquerque event. The assemblage included local lawyers whose political bents range from dyed-in-the-wool libertarian to left of Bernie Sanders. There were shaggy-haired hipsters in jeans and tweed jackets, other folks in three-piece suits. There were people in their 70s or 80s. A girl of 9 or 10 attended with her parents. Seated near the center of the room was a fellow with a gray, thinning ponytail who wore a black cowboy hat, a bowler’s shirt emblazoned with the logo of a Rio Rancho Masonic lodge and an open-carry pistol on his hip.
The panelists told the crowd that change in New Mexico might mirror legislation passed in Ohio in 2014. The Buckeye State’s law requires legislators to include in newly created laws a base level of intent that the government must prove to convict someone. The mens rea law in Ohio also requires more precision from the state for convictions under existing laws as well.
“The intent requirement in criminal statute is the moral anchor in our law,” Norman Reimer, executive director of the NACDL, said at the forum. “Intent makes criminal law fair and reasonable.”
Before any of that, Unser took the stage. He regaled the crowd in a gravelly tone scraped from the pits of the Indianapolis Motor Speedway with his oft-told tale of big government run amok.
Twenty years ago at Christmastime, Unser and a friend were stranded in the South San Juan Wilderness near the New Mexico-Colorado border, after their snowmobiles broke down during a blizzard. It took the pair two grueling days to hike out of the wilderness. Unser mentioned snow caves, tissue paper, matches, mothballs and the kicking down of a barn door in a florid Q and A with Reddy that was more A than Q.
After his escape from the would-be frozen death sentence, Unser was cited for violating the federal Wilderness Act by driving a snowmobile into a wilderness area. The infraction carried a $75 fine.
There were no signposts marking the wilderness area. There were white-out conditions besides, and Unser said he didn’t know snowmobiling in the South San Juan was illegal.
“Mens rea—I don’t know what that is,” he said to a roomful of approving nods. “All I know is I had no intention of doing something wrong. My intention was to stay alive.”
Later, his intention was to fight the federal government, which he did in US District Court in Denver. His trial there coincided with that of Timothy McVeigh, who bombed a federal building in Oklahoma City.
Unser lost. And he lost again on appeal. But his story lent a personal feel to the forum.
Skepticism abides of the Koch brothers’ increasingly public push for criminal justice reform. Just last week, journalist Jane Mayer reported in The New Yorker on whether it is part of a skillful rebranding campaign meant to distance the brothers from their dark-money, puppet master image.
Mens rea reform is not without controversy, either. It appears to be a potential sticking point in the national criminal justice reform debate, and its inclusion could derail bipartisan efforts in Congress to amend sentencing laws and other aspects of the system.
Critics have wondered aloud whether bolstering intent requirements would open the door for corporations to claim ignorance of the law or benign motives and thus avoid liability for criminal acts. Environmental crimes often come to mind for those suspicious of the real intent behind “intent reform.”
The panelists at last week’s forum in Albuquerque seemed aware of the criticism. They told horror stories of people in Florida facing charges for contraband that didn’t belong to them in the trunks of rental cars. And they gave Unser 45 minutes to describe his tangle with the feds over the obscure law they charged him with breaking.
CKI’s Reddy told New Mexico In Depth that he understands the concerns about loosening restrictions on corporate crime. But disagreeing with mens rea reform efforts “is not the way to address the corporate malfeasance they’re concerned about.”
Further, he said there’s plenty in mens rea reform for average New Mexicans. Reddy gave the hypothetical example of someone whose boat leaks oil into a river. Was the boater purposefully polluting the river? Was it a reckless act, an act of negligence? Or was it a freak accident? Laws that don’t differentiate between levels of intent can criminalize behavior that would not otherwise rise to the level of a crime.
“Those levels matter,” he said. “It’s a mistake to say it’s either [a crime] or [it’s not]. Mens rea protections have for a thousand years been protections for defendants, all defendants. … Anyone in the US could be a defendant, especially now, because there are so many laws.”
Whether New Mexico will become the next battleground for stricter intent requirements remains to be seen. The Rio Grande Foundation’s Paul Gessing said he hopes to build interest and support for mens rea reform this year and potentially put it before the Legislature in 2017.
This story by Jeff Proctor was published by New Mexico In Depth as part of its "Justice Project."