As Form Nation becomes a police state, there is an increasing number of laws and a decreasing requirement to prove wrongful intent

The purpose of this post is to make three important points.

1. The U.S. has so many laws that it is impossible to know whether you are in compliance with the law

2. It takes less and less (in terms of guilty intent and knowledge) to be convicted of the crime of violating one of these laws.

3. The combined effect of  “1” and “2” is that the U.S. has the highest rate of incarceration in the world.

I will discuss each point separately.

1. The U.S. has so many laws that it is impossible to know whether you are in compliance with the law

Form Nation is a nation of laws. The more the better. More and more laws means more and more opportunity to become a criminal. In fact, we are all potential criminals now! There are now so many laws, that one cannot know the laws. Therefore, one can never be sure that one is in compliance with the law. For this reason, as was discussed at Jack Townsend’s blog, it is important to never speak to investigators. The principle of never taking to investigators because you have no way of knowing what law you may have violated is reinforced in the following video. Settle in and watch it is. It is worth the investment:

Furthermore, many of these laws are becoming broader and broader in their application (ask Conrad Black about this) and harder and harder to understand. Think about many of the obscure provisions of the US tax code. How much of this can be understood by the average lawyer, let alone the average person?

2. It takes less and less (in terms of guilty intent and knowledge) to be convicted of the crime of violating one of these laws.

But, the most frightening thing is that fewer and fewer laws require proof of a guilty mind as a condition for conviction. This point was recently discussed in an insightful article where the author notes that:

The WSJ reports that in 1790, the first Federal criminal law passed by Congress listed fewer than 20 Federal crimes. The list has since grown to 4,500 Federal statutes, plus thousands more embedded in Federal regulations, many of which have been added to the penal code since the 1970s. This has made it easier than ever for citizens to unknowingly break a law, and they are more and more often prosecuted without the consideration of mens rea, Latin for proof of a “guilty mind.”

As all first year law students know, a fundamental principle (at least in theory) of criminal law is conviction of a crime requires proof of mens rea (the requisite intent that goes with the crime). Now, I realize that mens rea means different things at different times. But, the requirement of some kind of mens rea has always been a requirement for conviction. It would appear that more and more U.S. laws are allowing for conviction without ANY requirement of mens rea. With regard to FBAR, a willful failure to file does require mens rea. Interestingly thought, massive fines and penalties are allowed for non-willful failures to file the FBAR. This issue was the topic of a recent post at the Isaac Brock Society.

3. An increase in crime leads to an increase in the rate of incarceration

This surely helps to explain why the U.S. has the highest rate of incarceration in the world. A New York Times article recently reported that:

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

This is another reason why people are renouncing their U.S. citizenship. How can U.S. citizens abroad live with the fear that they can severely punished for violating laws that they did not know about and that no reasonable person could ever imagine existed? To put it another way:

The fact of U.S. citizenship leaves one subject to draconian penalties for all kinds of unintentional violations of the law. U.S. citizens abroad are particularly vulnerable in the area of “Form Crime” (the failure to file forms that one had to reason to suspect existed). Who would want to remain a U.S. citizen under these circumstances?

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