What ever happened to mens rea?

By Clarice Feldman

Mens rea, the concept of criminal intent, was until fairly recently an essential part of criminal law, precluding the conviction of those who had inadvertently committed a crime without intention to do so and without acting negligently.

In recent years over broad federal criminal statutes and overreaching prosecutors have made this concept of historical interest only though the Supreme Court has bit by bit expressed its dissent from this practice. In Arthur Andersen, it raised questions about convictions for obstruction when the records sought by the prosecution had simply been destroyed in the normal course of events with no knowledge of an investigation in which they were of interest.

Today the Supreme Court granted certiorari to hear the appeal of former Enron executive, Jeff Skilling , who is challenging another overused statute in which mens rea is not an element. Here is his brief seeking certiorari.

White Collar Crime Prof Blog said at the time the brief was filed:

"Jeffrey Skilling filed a Petition for Certiorari to the US Supreme Court and focuses his claim on the honest services aspect of mail fraud and jury prejudice. Clearly these are strong arguments as the Houston home court advantage was extraordinary in a case that was related to Enron and the honest services aspect of mail fraud has been a source of contention in many cases. Justice Scalia, in a recent dissent ona denial of certiorari, voiced strong opposition to the progression of mail fraud's intangible rights doctrine. He noted the breadth in the "28 words" in the statute and concluded by stating that "it seems to me quite irresponsible to let the current chaos prevail." It's a good move for Skilling to focus on this aspect of the statute, but the key will be whether the Court will accept certiorari in this case. Based upon a dissent in another Second Circuit en banc case, Rybicki, there are many circuits split on various aspects of the mail fraud statute.

"See also Mary Flood, Houston Chronicle, Skilling asks Supreme Court to review conviction.; Bill Mears, CNN, Former Enron CEO Files High Court Appeal; Ashby Jones, WSJ Blog, Skilling Takes Appeal to High Court"