Authentically Innocent: Juries and Federal Regulatory Crimes

Abstract

Criminal trials are morality plays. The jury is the conscience of the community. And juries convict only the blameworthy - those who did something they knew to be wrong. These ideals are fundamental but disappearing from federal courtrooms today. Regulatory crimes - such as illegal firearms possession, illegal drug dealing, and illegal re-entry of deported aliens - are now about 70% of the federal criminal docket. Regulatory crimes are usually general intent crimes, for which juries decide only if the defendant knew some of the element facts of the crime, not if the defendant actually knew she was doing wrong. According to the Supreme Court, this is not a problem, because - applying an "apparent innocence" rule of statutory construction - the Court requires proof of a defendant's knowledge of more facts if needed to prevent convictions for "apparently innocent" conduct. Although the commentary has widely welcomed this approach as a rule of mandatory culpability, this Article argues to the contrary. It shows that the apparent innocence rule continues to allow the conviction of blameless defendants for a wide range of crimes that are among the most commonly charged in our federal courts today. The Supreme Court should replace the apparent innocence rule with a rule of authentic innocence - a novel and transformative requirement of jury-found culpability for general intent crimes. Juries should directly decide if defendants knew they were doing wrong, specifically the type of wrong prohibited by the criminal statute charged (but without having to find that defendants actually knew the law). Authentic innocence can be implemented as a default rule of statutory construction and lies well within the residual authority of federal courts to decide how to instruct juries on the elements of crimes. Let juries decide if defendants knew they were wrong.

Keywords: Criminal Procedure, Federal Crimes, Mens Rea