Just months into Quinn’s service as mayor, the county district attorney filed criminal charges against him.
Quinn had not stolen city money, nor was he elected under false pretenses. He didn’t do anything that would be classified as a malum in se. His crime was a $1,609 campaign contribution he had received for his mayoral campaign.
That contribution was properly reported as required under the law. And it wasn’t from a shady developer looking to have the new mayor in his pocket, nor was anyone trying to bribe him. The person donating that money was Quinn’s own mother.
Neither Quinn nor his mom were aware, it seems, of a Wisconsin statute that limits political contributions. For local races, like the mayoral election in Rice Lake, the cap was $250; his mom had donated over six times that amount. The crime carried a maximum penalty of a $500 fine for Quinn’s mom, and he faced another fee of up to $4,800.16
Quinn’s case is an example of malum prohibitum (or mala prohibita, plural)—actions that are wrong merely because they have been prohibited. There was nothing inherently wrong with the donation in question, only that it had exceeded an arbitrary limit imposed by the legislature. Would it be “wrong” of Quinn’s mom to have donated $251? According to the “law,” the answer—based on the fact that it is prohibited, and therefore wrong—is yes.
There are, sadly, an unlimited number of examples to share that illustrate the silliness of thinking something is wrong—and then punishing the person for doing it—merely because it goes against what somebody said should not be allowed. Let’s consider a couple more examples to help you see the foolishness in full display.
Mats Järlström is a Swedish engineer living in Oregon. One day his wife received a ticket in the mail after she was captured on camera crossing into an intersection after the traffic light had turned red. In response, Järlström created and proposed a new mathematical formula for the traffic cameras to use, which would account for cars slowing down before changing a yellow light to red. “I’m an excellent engineer,” he told the Oregon State Board of Examiners for Engineering and Land Surveying.
That statement led the board to impose a $500 fine on him following a two-year investigation. Why? Once again, he hadn’t done anything inherently wrong; there was no victim of his math formula on paper. The board was punishing him for calling himself an engineer without their permission. Here is their ruling:
Järlström applied special knowledge of the mathematical, physical and engineering sciences to such creative work as investigation, evaluation and design in connection with public equipment, processes and works. Järlström thereby engaged in the practice of engineering.17
Good thing neither Nikola Tesla nor Leonardo da Vinci lived in Oregon, right? Otherwise, they might have been fined for having the audacity to consider themselves engineers without first obtaining the blessing of the bureaucracy. (These types of laws, called occupational licensure, punish people like Järlström in every state—not just Oregon.)
Before moving on, let’s briefly go back to our early lemonade stand example, this time citing a different case. Andre Spicer’s 5-year-old daughter wanted to try her hand at selling things to passersby, and after considering toys, food, and clothes, she decided to opt for some easy-to-make lemonade. Each cup was 65 cents, and several happy customers came by to support the budding business. “She brought a smile to their faces,” Spicer said of his daughter.18
And then the government officials showed up.
Predictably, they pointed out that the girl was selling her lemonade without a commercial license. When confronted with the $200 fine, and seeing that she was somehow in trouble, the young child burst into tears, saying “I’ve done a bad thing.” 19
Think about that for a moment. A happy girl was selling lemonade to consenting customers, yet she was led to believe that action was somehow wrong. This is the effect of a malum prohibitum—when the “law” allows government employees to harass people who are peaceably going about their business.
There are some important things to understand about these so-called “wrongs” before we continue. First, they are entirely dependent upon a positive law; they cannot exist without the government dictating what should not be done and attaching a penalty to it. For example, using our earlier island scenario, imagine in that government-free world that you needed to catch some fish to eat. You’d fashion a pole, line, and lure, and get to work—never thinking to stop and ask everybody else’s permission first. Yet chances are the government where you live makes you obtain a fishing license before heading to the lake—only because some politicians decided to pass that law, suddenly making fishing without a license a malum prohibitum.
Second, unlike in cases of a malum in se, there are no victims. Romaine Quinn getting more than $250 for his mayoral campaign did not harm anyone. Mats Järlström’s math formula did not hurt those he showed it to. And Andre Spicer’s daughter did not lace her lemonade with poison. These actions—violations of positive law—are so-called “victimless crimes.” There is no readily identifiable harm caused by such actions.
Third, malum prohibitum laws are disconnected from any moral determination; the classical “right and wrong” arguments are cast aside in favor of merely prohibiting whatever politicians don’t like or feel is not ideal. Put differently, natural law is ignored and only positive law is used. And worse, this approach leads to punishing people not just for doing certain things, but also for not doing something—as in the case of the federal law that punishes people for failing to purchase health care insurance.
Another important point to understand is that a malum prohibitum requires knowing about the prohibition. Remember the case with Judge Tucker? “No man’s life, liberty, or property are safe while the legislature is in session,” he wrote. This is because every time a group of legislators get together, or a president begins signing executive orders, or bureaucrats pass their regulations, we might find ourselves classified as criminals without knowing it; we might not be aware of some new regulation or mandate that affects our lives or limits our actions. A malum in se is readily observable and inherently understood; we all know it’s wrong to hurt people and take their stuff. But when your action might be deemed wrong merely because some people hundreds or thousands of miles away had a meeting and decided they didn’t want you to do it, how are you supposed to suddenly know that you should stop?
Did you know that America’s prisons are packed? The USA has the highest prison population in the world: 716 prisoners per 100,000 residents.20 It might be hard to make sense of that number—how does it compare to other countries? Actually, it’s more than five times higher than most of the countries in the world. The United States has roughly five percent of the world’s population but has close to 25 percent of the world’s prisoners. 21
Why the difference, then? Why are over two million Americans locked up behind bars?22
Part of the answer is because of mala prohibita—the result of prohibiting all sorts of actions that don’t have victims. Recall that Congress creates an average of 55 new crimes each year, to say nothing of all the regulatory prohibitions that bureaucrats are constantly creating. Nobody knows how many crimes even exist nowadays, as pointed out in one report:
The Congressional Research Service reportedly has been unable to come up with a definitive total of federal criminal laws; the nearest they could come was to say they number in the thousands. They are by no means confined to the federal criminal code—Title 18, itself a weighty volume—but are scattered among the laws contained in the 51 titles or subject-matter volumes of the federal code and the hundreds of thousands of regulations that are supposed to implement those laws. The result is that there are more criminal laws than anyone could know.23
Add onto that lengthy list the many state laws that criminalize victimless behavior. In Arizona, “No person shall feed garbage to swine without first obtaining a permit.”24 In Massachusetts it’
s a crime to play only part of the “Star Spangled Banner”; the law states it must be played “as a whole and separate composition or number, without embellishment or addition in the way of national or other melodies.”25 If you’re a pinball player in Arkansas, beware: a “coin-operated amusement device” may provide you “not more than twenty-five (25) free games” without running afoul of the law.26 And if for some strange reason you find yourself at a New Hampshire beach at night, do not “carry away or collect for the purpose of carrying away any seaweed or rockweed from the seashore,” because that is also illegal.27
While these silly statutes are clearly mala prohibita, they are often not prosecuted; there is no influx of inmates into prison over seaweed collection. A large portion of the prison population is there due to controlled substance violations—the “war on drugs.” In the four decades since Richard Nixon started this war (one that has not decreased drug use28), the rate of putting people in prison has expanded by 500%.29 Crime and drug use have not increased, so that doesn’t explain the trend. What has changed are the laws punishing this activity—longer punishments, mandatory minimums, and other punishments enacted by legislators wanting to be “tough on crime.”
Roughly half of America’s two million prisoners are there because they allegedly used or sold drugs.30 But think about it: every drug these people consumed or traded was once legal. These drugs may be harmful (but so are guns, knives, cars, matches, bathroom cleaners, and more), and it is unwise to abuse any substance—no question there. But on the island without a government, you’re free to ingest something that hurts you. That would be a bad idea, but go ahead—knock yourself out. Yet in our day, positive laws prohibit consumption of certain drugs, and even though this activity was once legal, suddenly it became illegal—a malum prohibitum—putting hundreds of thousands of people behind bars.
Is that justice?
MENS REA
Continuing with the drug example, let’s look at Abby McLean’s story to discuss intent—whether a person knew their action was “wrong” and decided to do it anyway. McLean was a 28-year-old stay-at-home mom in Colorado when, returning home to her children one night in 2014, she came upon a DUI checkpoint where police officers were stopping all drivers to find impaired drivers who might be a danger on the road.
Though a regular user of cannabis (marijuana), McLean was not driving intoxicated. “I hadn’t drank [sic] or smoked anything, so I was like, ‘Let’s go through the checkpoint,’” she recalled in an interview. But the police officer who began asking her questions claimed that McLean’s eyes were bloodshot and that he could smell cannabis coming from the car.
So he took out the handcuffs, and McLean freaked out: “Like, massive panic attack. And, ‘Oh, my God, I have babies at home. I need to get home. I can’t go to jail!’”
McLean’s blood test revealed that she had five times the legal limit of tetrahydrocannabinol (THC), the psychoactive part of cannabis—except, she wasn’t pulled over for speeding, swerving, or anything that would demonstrate that she was actually an impaired driver. All the police and prosecutor knew was that she had the metabolite in her system—basically, a broken-down part of the cannabis that sticks around in your body for a while.31
And that’s the problem. Consider alcohol, which is what most people think of when talking about impaired driving. Alcohol is water soluble, meaning that it can be digested rather rapidly in your body and through your bloodstream. It passes quickly—depending on the amount the person drank, within just a few hours. If it’s detectable in your body, then chances are you’re still being impaired by it.
But THC sticks around for a long time—up to several weeks or more. That’s because it’s not water soluble; it gets stored in your body’s fat cells. That means a person can consume cannabis in a state where it’s legal, and then a month later drive around in a state where it’s not, and if they are pulled over and suspected of any wrongdoing, they can be prosecuted for DUI—driving under the influence. All the police officer has to do is run a blood, saliva, or urine test to find the metabolite, even though it is not impairing the person at all.
That’s why McLean got in trouble. She didn’t do anything wrong, but she violated a law that prohibited operating a vehicle while having a drug metabolite in her body. More to the point, she did not know about this law—who does? Unsuspecting people might ingest cannabis in a location where it’s legal, only to find themselves classified as a criminal while driving to work weeks later in a location where it’s illegal, even though, by then, they are completely sober.
This is where mens rea becomes very important. It’s Latin for “guilty mind,” and refers to a person’s mental state when committing an action. McLean did not have a guilty mind—criminal intent—because she wasn’t even aware of this law and was intentionally sober while driving her car, hoping to return home to her young children. She was not purposefully intoxicated while driving—she wasn’t intoxicated at all.
Mens rea is an important element that any crime should contain before the alleged criminal is convicted. And it applies to both a malum in se and malum prohibitum. Let’s briefly explore why.
The easiest example to point to is the worst of the worst: murder. The premeditated planning to end someone’s life is a clearly wrongful act, whether or not a law exists to punish it. It violates the other person’s right to life. And because a murderer plans and executes this intentional killing, he definitely has mens rea—a guilty mind. But if this element is missing—if the killer did not previously plan to end the person’s life—then he likely can’t be convicted of murder. He would probably instead be charged with manslaughter, a lesser crime, and would, potentially, be found innocent depending on whether it was an accident or the result of something the person could not have foreseen or did not know.
The importance of mens rea is illustrated in the following example, where a person was accused of felony murder despite not killing anyone. As a 16-year-old, Blake Layman and four of his friends stupidly decided to break into a man’s house, unarmed, to rob him of whatever they might find. That homeowner, Rodney Scott, opened fire on the intruders, killing one of them. The others were arrested. A few hours later, Layman was informed that he was being charged with murder.
“I was shell-shocked,” he later told a reporter. “Felony murder? That’s the first I’d heard of it. How could it be murder when I didn’t kill anyone?”32 He and his friends were not armed, and therefore did not fire a single shot—they were the ones on the receiving end of the barrage of bullets. But that didn’t matter. As it turns out, several states have laws that allow a person to be charged with murder if a death occurred while they were committing a felony (a serious crime, such as breaking and entering into a person’s home to rob them).
Layman didn’t intend to harm, let alone kill, the man whose home they were invading. He certainly didn’t intend to kill his friend who died of a gunshot wound. If Layman did not have that mindset, then he should not be able to be convicted of that crime. Prosecutors and judges throughout the process disagreed, and Layman faced 50 years in prison after he and his friends were convicted by a jury for felony murder. Eventually, the Indiana State Supreme Court overturned the conviction, noting that there was a lack of “dangerously violent and threatening conduct”—in other words, mens rea—indicating they wanted somebody to die that night. Layman was re-sentenced on a burglary charge only, with 10 years of prison. He was released after three and a half years of prison time and is now a free man—one who, hopefully, has learned from his youthful mistakes.
Demonstrating a criminal mindset to convict a person as a criminal is also important in malum prohibitum cases. Again, the explosion of new crimes involving actions that aren’t inherently wrong provides many examples:
In 2007, the Sackett family began loading their new property in Idaho with dirt and rocks so they could build a house. Shortly after they began, the Environmental Protection
Agency sent them a notice indicating they were on protected wetlands and had violated the Clean Water Act by altering their land without first obtaining a permit. Unaware their land was under such a designation, they faced tens of thousands of dollars in fines if they failed to remove the dirt and restore the property back to its original state.33
Using the popular Airbnb service, Stephen Palmer and his family rented out their basement, unaware that they were violating the city’s law prohibiting them from doing so. Despite the fact that the mayor, who lived two doors down, was completely unaware of the guests coming and going from the home without any noise or controversy, the city threatened Palmer with up to 90 days in jail and heavy fines.34
Robert Eldridge, a fisherman, accidentally trapped a humpback whale in his fishing net near Cape Cod in 2008. He wasn’t able to untangle the net, but by cutting the fishing line Eldridge freed the whale, which swam away. This action evidently violated the Endangered Species Act and the Marine Mammal Protection Act, which Eldridge did not realize; he was fined $500 and told that under the law he should have called a licensed marine mammal rescue worker instead of fixing the problem himself.35
Maisha Joefield, a single mom, took a relaxing bath one evening after putting her 5-year-old daughter to sleep. After the bath, she checked on her daughter, but the girl was missing. She frantically searched the apartment and couldn’t find her. Then the police showed up. The young girl had gone across the street to her great-grandmother’s house—a place she knew she could go in an emergency. But police officers charged Joefield with “endangering the welfare of a child” and placed her in jail. The girl was put in foster care.36
In a hurry to catch a bus one morning in 2010, Oregon resident Scott Miller crossed the street in the middle of the block—not at a designated crosswalk. An observant law enforcement officer detained Miller, began to handcuff him, and tackled him to the ground. Miller was arrested, held at the precinct for 30 minutes, and given a ticket for jaywalking. Needless to say, he missed his bus.37
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