Is “ignorance of the law” a valid excuse now days?
If you’re talking “regulatory law” it may very well be … or so Insty argues in his USA Today column:
Ignorance of the law, we are often told, is no excuse. “Every man is presumed to know the law,” says a long-established legal aphorism. And if you are charged with a crime, you would be well advised to rely on some other defense than “I had no idea that was illegal.”
But not everybody favors this state of affairs. While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of “regulatory crimes” in which intuitions of right and wrong play no role, but for which the penalties are high.
If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.
Laws are proliferating like fleas and those are the ones that are actually passed by legislatures. Regulatory law, on the other hand, is law created
“Regulatory crimes” of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. “Tellingly,” he writes, “no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.” Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.
And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don’t require any knowledge that you’re breaking the law. This seems quite unfair. As Cottone asks, “How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?”
Or bothers to acquaint the public with these laws and their penalties?
Most of these laws, as Reynolds points out, are “(enacted by administrative agencies under loose authority from Congress) carrying criminal penalties” that even Congress dosen’t know about. Imagine a body of law and penalties that are simply made up by regulatory agencies numbering 300,000. That’s absurd!
Don’t expect to be saved by “prosecutorial discretion” if someone in government is out to get you either.
Of course, we may hope that prosecutorial discretion will save us: Just explain to the nice prosecutor that we meant no harm, and violated the law by accident, and he or she will drop the charges and tell us to be more careful next time. And sometimes things work that way. But other times, the prosecutors are out to get you for your politics, your ethnicity, or just in order to fulfill a quota, in which case you will hear that the law is the law, and that ignorance is no excuse. (Amusingly, government officials who break the law do get to plead ignorance and good intentions, under the doctrine of good faith “qualified immunity.” Just not us proles.)
It’s “us proles” who need to be worried about this. We’re the ones who will feel the full weight of these laws when they’re enforced. We aren’t politically important enough for prosecutorial discretion to be exercised. And that’s the way it always is.
This is the absurdity of our government (or any government) fundamentally ignoring the fairly strict guidelines of the Constitution and changing its mission from one of the protection of rights (and the few laws that requires) to that of governing our every move for the “common good” (as defined by … itself).