8th Circuit Heeds Calls for Criminal Law Reform
For years now, Heritage Foundation scholars have
argued that, absent extraordinary circumstances, criminal liability should require
proof of criminal intent. At least one court has taken notice.
In an opinion issued
on Sept. 16, a majority of a three-judge panel of the Eighth Circuit Court of
Appeals held that when a statute doesn’t say whether criminal intent is
required to commit a crime, courts also should not assume strict
liability—liability absent criminal intent—has been established unless the
statute “indicates, either expressly or through implication,” that Congress
intended to enact a strict liability offense.
The majority found this approach appropriate because,
as the Supreme Court has previously warned, “to interpret the statute otherwise
would be to criminalize a broad range of apparently innocent conduct.”
The defendant in this case, Kevin Jay Mast, faced
heavy fines and time in prison after installing drain tile on his property in
compliance with the regulations of one government agency but not with the
regulations of another.
In 2010, Mast wanted to install drain tile on his
property to drain water from specific areas of his land to prepare it for
farming. Mast sought the approval of the Natural Resources Conservation Service,
which informed him he had to coordinate with the Fish and Wildlife Service because
the Fish and Wildlife Service had acquired an easement on his property from a
previous owner nearly 40 years earlier.
The Fish and Wildlife Service sent Mast a map of the
protected areas of his property, advised him that his current plan would
violate the easement, and suggested alternate locations for drain tile
But before Mast installed the tile, the Natural Resources
Conservation Service sent him a new map that did not fully match the earlier
Mast abided by the more recent map and installed drain
tile at a location permitted by the new map, but forbidden by the old map. The Fish
and Wildlife Service was not happy that Mast ignored its older map and had him
charged with the crime of knowingly violating its rules.
At his trial, the judge instructed the jury to
consider not only the “knowing” violation, but also the lesser offense of
“otherwise disturbing National Wildlife Refuge System [part of the Fish and
Wildlife Service] property,” which “does not explicitly refer to any mental
The jury found Mast not guilty of the “knowing”
violation, but guilty of the lesser offense.
In reversing Mast’s conviction, the Eighth Circuit held
that the mere lack of an explicit intent element did not necessarily mean that
Congress meant to create a strict liability crime. Something more is required
because strict liability crimes are contrary to the “universal” principle that
“wrongdoing must be conscious to be criminal.”
In this case, the court concluded that “neither the statutory language nor
the legislative history” of the act “indicate[d] an intent to dispense with a
mental state requirement ….” Although
the statute itself did “not identify the precise mental state necessary to
sustain a conviction,” the court discerned from the legislative history an
intent to proscribe negligent violations, which would, in the court’s view,
require proof that “Mast should have known that there was a substantial risk
that his actions” would violate the law.
Judge Steven Colloton dissented on the grounds that it
wasn’t appropriate for the court to write in an intent element when Congress didn’t
include one. He accused the majority of,
essentially, usurping Congress’ role to rewrite a law.
Although the majority may have reached the right
result as a matter of policy, Judge Colloton is correct that, as a matter of
good jurisprudence, judges should not rewrite laws even if they’re bad laws.
And Colloton acknowledged that this is a bad law. Citing
Heritage Foundation scholar John
others, Colloton acknowledged that reform is needed. But, he said, “Judicial distaste for
eliminating the requirement of [criminal intent] in a criminal statute,
however, must give way to the authority of Congress to make that choice.”
One thing is clear, though; Congress should pay more
attention to the need for, and adequacy of, mens rea standards when enacting
criminal laws. Congress should not
depend on the courts to clean up its messes, and an unwary public should not be
subject to the possibility that sloppy draftsmanship may result in someone
being branded a criminal who had no intent to violate the law.