Clarify law to put focus on real criminals

Last year, New Mexico became a national leader in controlling abuses of civil-asset forfeiture. Let’s keep our momentum against overcriminalization going — and adopt a default mens rea standard.

Under the common law, a crime takes place when a mens rea (guilty mind) commits an actus reus (guilty act). As described by one legal scholar, “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.”

University of New Mexico School of Law Professor Leo M. Romero put it more succinctly when he wrote that “moral blameworthiness is a deeply rooted precondition to the imposition of penal sanctions.”

But as government grew and the regulatory state expanded, the nature of crime changed. Actions understood to be inherently wrong, such as theft and murder, began to be outnumbered by offenses said to be committed against “public welfare.”

Reformers at the state level have come to embrace a default mens rea provision as a tool to protect citizens from inappropriate prosecution. In 2014, Ohio’s legislature passed, and Governor John Kasich signed, a bill that made a significant clarification: “When the section language defining an element of an offense that is related to knowledge or intent or to which mens rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense the element of the offense is established only if a person acts recklessly.”

More recently, Michigan’s legislators and governed enacted a similar reform, which enjoyed support from the National Federation of Independent Business, the U.S. Justice Action Network, the ACLU of Michigan, the Criminal Defense Association of Michigan, and the Mackinac Center, a free-market think tank.

The need here is real. New Mexico has one of the worst violent-crime rates in the nation. In the state’s largest metro region, the Albuquerque Journal has reported, a “cadre of hard-core violent criminals has become a common theme,” with “brazen armed robberies to carjackings to the cold-blooded shooting of police officers.” It’s clear, particularly in an era of constrained budgets, that New Mexico needs to make the best use of its law-enforcement resources. A default mens rea law, similar to the ones passed in Ohio and Michigan, is one tool to foster such prioritization.

In 2013, the state’s high court took a small step toward mens rea reform, when it ruled that violators of restraining orders must act “knowingly” in order to be charged. (Thus, an unintentional encounter in a public place could not be prosecuted.) But many opportunities remain for “crimes” to occur absent criminal intent in New Mexico.

For example, it is illegal to hunt and fish in the state, except “as permitted by regulations adopted by the state game commission or as otherwise allowed by law.” The New Mexico Department of Game and Fish’s rule book for fishing is 52 pages long. The rule book for hunting upland and big game is 144 pages long.

In addition, under state law, the Board of Regents of New Mexico State University establishes regulations for fuelwood. In 2014, the board decreed that it must be “advertised, offered for sale, and sold only by the cord or fractional part of a cord, except it may be sold by weight if the seller declares the price per unit of weight and the equivalent price per cord.” Thus, sales of fuelwood in “unspecified quantities, such as ‘load’ or a ‘truck load,” which commonly occur throughout New Mexico, are prohibited.

New Mexico needs a default mens rea standard, in order to codify what one scholar called “the classic liberal idea that moral culpability is, and criminal liability should be, based on a conscious choice to do wrong.” In addition to protecting its citizenry from unwarranted prosecution of ignorance and/or mistakes, the reform would offer clarity — and promote efficiency — in New Mexico law enforcement.

D. Dowd Muska is research director of New Mexico’s Rio Grande Foundation, an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom, and individual responsibility