Excerpt: Federal criminal law is plagued by a deep pathology of over-criminalization and excessive punishment. This pathology has metastasized out of “the twentieth century pursuit of ‘regulatory crimes.’” Although Congress, urged on by the Justice Department, is the primary culprit, courts have a role in ameliorating the pathology’s spread—by, at a minimum, consistently enforcing Congress’s stated mens rea line between criminal conduct and mere civil wrongdoing. Enforcing high and clear mens rea standards safeguards liberty, preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes.
Such enforcement is particularly crucial in the context of highly regulated industries. There, regulatory crimes are plentiful and zealously prosecuted, and the risk of overreach is at its peak. Companies in these industries operate in especially complicated and shifting legal environments. And they must interact frequently with the government—in contracting, inspections, audits, and the like. This volatile mix leaves regulated companies and their employees especially vulnerable to claimed error and potential felony criminal prosecution, even when the government’s legal theory is unsound.
…The government has every incentive to bypass myriad adequate civil remedies in favor of its heavy criminal artillery, because defending against those weapons is particularly difficult for government contractors, regulated industries, and their employees. The Eleventh Circuit’s decision creates a new weapon for the government in such prosecutions, not only in that important circuit but beyond. Pet. 25-26. With the deck so stacked in favor of the government, and with myriad civil remedies available, there is no logical or legal reason to add the weapon of a diluted mens rea to the government’s arsenal. This Court should take this opportunity to say so. The Court should grant the petition for a writ of certiorari.