(Albuquerque) New Mexico could make significant improvements to its criminal justice system by embracing a common-law principle called mens rea.

A new Rio Grande Foundation paper describes in detail why the New Mexico Legislature should embrace the principle of “guilty conscience” in criminal justice. As described by Roscoe Pound, the dean of Harvard Law School from 1916 to 1936: “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”

In the late 19th century, industrialization prompted the creation of regulatory authorities at the federal, state, and local levels. Over the decades, and continuing today, a myriad of rules came to govern “the environment around us, the food we eat, the drugs we take, health, transportation, and housing, among many others.”

One of the best examples of an egregious strict-liability prosecution at the federal level occurred in the Land of Enchantment. In 1996, Bobby Unser, a three-time winner of the Indianapolis 500, went snowmobiling with a friend near Chama. A flash snowstorm blew in, and whiteout conditions caused Unser and his companion to become trapped.

Severely ill and exhausted after two days and two nights, the men found a barn with a phone and called for help. But once Unser informed the US Forest Service of the incident, he was prosecuted for entering a “wilderness” area – even though there was no proof that such a violation took place. In 1997 he was convicted and fined by US District Judge Lewis Bacock. The conviction was appealed, but ultimately Unser’s prosecution was left to stand after the US Supreme Court refused to hear the case.

Unser’s case illustrates broader problems with the lack of a mens rea requirement. The New Mexico Legislature can take another step – as it did in 2015 with standard-setting civil asset forfeiture reforms – to reverse the tide of overcriminalization while continuing to protect those who are genuinely harmed by bad actors.

The full paper, “Accidental Criminals: Why New Mexico Needs Mens Rea Reform” is available here.

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