Regulatory Crimes: "You Are Probably Breaking The Law Right Now"
Glenn Reynolds writes about "regulatory crimes" at USA Today, crimes legislated into existence that we have no idea are crimes -- yet we can be judged guilty of them, possibly of a felony.

These regulatory crimes can be used to railroad in a person who is doing something "objectionable," like speaking out on a contested issue -- or any citizen.

An example? Picking up a bald eagle feather is a felony. And Reynolds notes that even feathers from "lesser-known birds," like the red-tailed hawk, are included in this (I'd be wildly lucky if I could tell a brown pigeon feather from that of either other bird):

And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state -- you had to realize you were doing something wrong -- the regulatory crimes generally don't require any knowledge that you're breaking the law. This seems quite unfair. As Cottone asks, "How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?"

That "culpable mental state," that's "mens rea," misquoted as a "guilty mind," but that's how I remember it. It actually means "the mind of the accused."

Reynolds continues:

Of course, we may hope that prosecutorial discretion will save us: Just explain to the nice prosecutor that we meant no harm, and violated the law by accident, and he or she will drop the charges and tell us to be more careful next time. And sometimes things work that way. But other times, the prosecutors are out to get you for your politics, your ethnicity, or just in order to fulfill a quota, in which case you will hear that the law is the law, and that ignorance is no excuse. (Amusingly, government officials who break the law do get to plead ignorance and good intentions, under the doctrine of good faith "qualified immunity." Just not us proles.)

To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government -- civil or criminal -- to have the option of arguing to the jury that the government's action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)

Under the vagueness doctrine, a law is void if a person of reasonable intelligence would have to guess at its meaning, because it would be unfair to punish someone for violating a law that cannot be understood. It seems just as unfair to punish people for violating a law that they couldn't reasonably be expected to know about.

Law that can't be known is no law at all. If we wish to remain a nation of laws, Congress and the courts need to address this problem, before it's too late.

A book about this is theFIRE.org founder Harvey Silverglate's Three Felonies A Day: How the Feds Target the Innocent.