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Reconsidering the 'mistake of law defense' in the battle against overcriminalization

October 1, 2013 11:45 AM

by Isaac Gorodetski

The traditional common-law principle of "Ignorantia juris non excusat,"--Latin for "ignorance of the law" does not excuse--prevented a criminal defendant from escaping liability by claiming that he was unaware that his conduct was unlawful. When most crimes were malum in se--meaning inherently wrong according to the generally accepted moral code--the concept of "ignorance is no excuse" went unchallenged. That was all before the phenomenon of overcriminalization, before criminal codes and regulatory provisions were flooded with new criminal offenses, many of which were vague, ambiguous, duplicative and well-beyond the scope of the traditional common-law-based criminal justice system.

Now in the face of a new reality, policy experts and legal scholars have been working on solutions to curb overcriminalization and reign in the unwieldy proliferation of criminal laws. Policy makers have met those efforts with interest; the House of Representatives formed a special task force on the question earlier this year. Among the many proposals being considered to deal with the alarming trend is a reversal of this age-old principle that "ignorance of the law is no excuse." What has been proposed by many advocates is a new "mistake of law" defense which would for the first time allow a criminal defendant to make the case that he did not know that his conduct was against the law and that no reasonable person in his position would know. This drastic departure from the "ignorance of the law" principle has alarmed many experts who, while acknowledging the threat of overcriminalization, worry that a mistake of law defense would create its own host of serious problems.

To advocate in favor of the "mistake of law defense", we're thrilled to welcome Paul Larkin, senior legal research fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. Before joining Heritage, Larkin held various positions with the federal government in Washington, D.C. At the U.S. Department of Justice from 1984 to 1993, Larkin served as an assistant to the solicitor general and as an attorney in the criminal division's section on organized crime and racketeering. He argued 27 cases before the U.S. Supreme Court. Additionally, Paul authored several legal memoranda which outlined the case for the Mistake of Law Defense generally and also specified the elements of that prospective defense.

Opposite Larkin, we are happy to welcome Georgetown Law adjunct professor William G. Otis, a former chief of the Appellate Division at the US Attorney's Office for the Eastern District of Virginia, counselor to the administrator with the Drug Enforcement Administration and special counsel to President George H. W. Bush.

We hope you will visit back over the ensuing days to see what our distinguished participants have to say, in what promises to be a fascinating discussion.

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FEATURED DISCUSSION ARCHIVE:


Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.