A timely(?) call for greater attention to mens rea in the criminal law

Via e-mail I received a link to this interesting “Legal Opinion Letter” from the folks at the Washington Legal Foundation.  The short letter is titled “Mens ReaRequirement: A Critical Casualty Of Overcriminalization,” and it is mostly critical of the broad definition of white-collar offenses that enable criminal prosecutions of corporate officials based on seemingly innocuous public statements.  But, especially as my 1L Crim Law students gear up for my exam, I found the letter’s final paragraph reminded me of famous passage in the Model Penal Code commentaries:

By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted.  There are many things a liberal government may do to improve social welfare.  Government may properly ask individual citizens to make significant sacrifices for the common good.  However, there are also many things a liberal government may not do.  Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them.  Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault.  Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.

Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends.  What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability. 

Because of various modern practical challenges in using administrative law or tort law to regulate certain risky behaviors, I can see a justification for legislatures sometimes passing laws that may ultimately criminalize innocent or merely negligent behavior.  But I have a hard time with extreme prison terms being in the mix without requirements of serious culpability.  Any and all criminal provisions that threaten severe prison terms without requiring proof of significant blameworthiness necessarily gives prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices.