Should you go to jail for an accidental crime?
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During a visit to the Adirondacks last week, New York Gov. Andrew Cuomo recalled retrieving a feather shed by an eagle that “swooped down right next to us with this beautiful, graceful glide” as he and his family were canoeing on a lake.
Cuomo did not realize he was confessing to a crime.
As the Associated Press pointed out, picking up that feather was a federal offense, punishable by a maximum fine of $5,000 and up to a year in prison. But Cuomo, who said he would remedy the situation by returning the feather to the lake or surrendering it to the U.S. Fish and Wildlife Service, clearly does not expect to be punished for a crime he committed inadvertently.
And therein lies a lesson he should take to heart.
The Bald and Golden Eagle Protection Act prohibits the collection and possession of eagle parts, including feathers, except by Native Americans for religious purposes. A defendant can be convicted if he collected or possessed a feather “knowingly” or “with wanton disregard for the consequences of his act.”
Cuomo’s actions meet that requirement, since he clearly knew the feather came from an eagle, even if he did not know collecting it was against the law. As animal law attorney Rebecca Wisch notes, “The statute does not distinguish innocent possession, or possession without knowledge of the illegality, from possession with knowledge of the eagle’s protected status.”
The Migratory Bird Treaty Act goes even further, making it a misdemeanor to possess a feather from any of more than 1,000 species, without regard to intent or knowledge. The upshot is that a bluebird feather your kid picked up in the yard theoretically could earn you six months in jail.
Cuomo, who served four years as New York’s attorney general, no doubt is familiar with the old legal saw that “ignorance of the law is no excuse.” But in truth, ignorance of the law is a pretty good excuse, especially when the law is obscure and criminalizes actions that are not inherently wrongful.
By establishing strong standards for mens rea, the state of mind necessary to be convicted of a crime, legislators can prevent the manifest injustice of punishing people for unknowingly breaking the law. That is the goal of legislation such as the federal Mens Rea Reform Act introduced last month by Sen. Orrin Hatch (R-Utah).
While Cuomo is no doubt happy to escape punishment for unintentionally committing a crime, he seems less keen on extending that dispensation to others. As attorney general, he made liberal use of the Martin Act, which allows convictions for securities fraud without proof of intent, and advocated expanding the law to health care.
As governor of New York State, Cuomo championed the so-called SAFE Act, which turned legal gun owners into criminals if they failed to register semi-automatic rifles with certain arbitrarily selected features. The same law banned possession of magazines that hold more than 10 rounds and made it a crime to put more than seven rounds in a 10-round magazine, although a federal appeals court overturned the latter provision in 2015.
The SAFE Act’s penalties apply whether or not an offender knows he is breaking the law. As the New York State Sheriffs’ Association noted, “Nothing in the law requires one to know that he or she is in possession of a magazine or a rifle that falls within the proscriptions.”
The same goes for the implements covered by New York’s “gravity knife” ban, which the New York Police Department has interpreted to include tools openly sold by stores such as Home Depot and routinely carried by plumbers, carpenters, carpet layers and dry wall installers. About 5,000 New Yorkers are arrested every year for violating this law, typically without criminal intent.
Cuomo has twice vetoed bills aimed at correcting this injustice.
Cuomo’s position seems clear. He believes criminal intent should be required for a criminal conviction, but only when he’s the person breaking the law.
Jacob Sullum is a senior editor at Reason magazine.
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