Can You Be a Criminal By Accident?

Should you spend time in prison for violating an obscure federal law you didn't even know existed?

These days, the government's answer increasingly appears to be a resounding "Yes."

Earlier this week, the Wall Street Journal reported on the enormous volume of  over 5,000 federal criminal statutes enacted over the past few decades, and the slow, deliberate destruction of a crucial principle in law called "mens rea."

Meaning "guilty mind" in Latin, means rea doctrine limits your criminal liability to your intent and knowledge while committing an act.

Basically, "mens rea" says you must know what you are doing is wrong for it to be criminal.

But that's all starting to change, and it's a huge threat to the freedoms of every American.

The U.S. Congress has passed a vast array of laws that ignore "mens rea" as a necessary component of a crime. Increasingly, federal prosecutors don't even have to try and prove your state of mind during the crime. Whether you know or not what you did is wrong, you can pay huge fines or even head to prison.

This is a perfect storm of sorts. As ridiculous, vague, and endless federal laws are passed every day, it's essentially impossible for anyone to keep tabs on these rules, and not knowing is increasingly not a defense.

We are not talking about the Ten Commandments here. These are laws a rational, well-informed person would probably never know about, unless they violated them. And there are so many of these laws, not even the Department of Justice can give an accurate tally.

Case in point: the WSJ in July told the story of Eddie Leroy Anderson, an Idaho man who used to dig for arrowheads as a hobby. During one expedition near a favored camp ground, they wandered onto federal land. Authorities told them to "Get a lawyer, and a damn good one."

What law did Mr. Anderson and his son violate?

The Archaeological Resources Protection Act of 1979. State of mind is irrelevant to the statute, and the penalty can be up to two years in federal prison-- for accidentally digging a hole in the wrong part of the woods.

The Andersons pled guilty and received a $1500 fine and a year of probation.

In another instance of federal laws run amok, a man in Flagstaff, Arizona was found guilty in 1999 of violating a federal statute prohibiting those convicted of domestic violence from owning guns. The law wasn't on the books when he bought the gun, but it was retroactively applied to him.

He received five years of probation for violating a federal law that was passed after the act in question was committed.

Even more astonishing, use the Fed's Smokey the Bear image or the slogan "Give a Hoot, Don't Pollute" without permission, and you could end up in federal prison.

The vast expansion of federal laws, and the removal of mens rea as protection for average citizens, has already had massive impact on the American prison population. The Journal cited these startling numbers of the Federal Bureau of Justice Statistics:

"The number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually. The U.S. population grew only about 36% in that period. The total federal prison population, over 200,000, grew more than eightfold—twice the growth rate of the state prison population, now at 2 million."

What this all amounts to is a vast expansion of Federal powers, far beyond anything articulated in the Constitution, and placing millions of Americans in dubious legal jeopardy.

The great Anglo-Irish philosopher Edmund Burke once said "Bad laws are the worst sort of tyranny."

If Burke were alive today, he would see the trends in American federal law as a grave threat to liberty.