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Opinion: With so many new laws, any person might end up in prison

If, perchance, you're looking for an arcane legal term to add to your personal lexicon or to simply brighten up your day, here's one: mens rea.

When a prosecutor or defense attorney says those words, he or she is referring to the state of mind of a person being accused of criminal activity.

Did that person commit a crime with advance knowledge that doing so was wrong and unlawful? Was there the requisite awareness of wrongdoing that should exist in order for legal authorities to invoke the awesome prosecutorial powers of the state?

As law school professors often put it, "Was there a guilty mind?"

If not, a bedrock legal principle posits that a person should not suffer criminal penalties. Wherein lies society's gratification and sense that wrong has been addressed and atoned for when a person is imprisoned for behaving in a way that he or she did not even know was objectionable, much less a crime?

A well-known political columnist takes a close look at the mens rea concept, why it is deemed critically important in American jurisprudence, and how it is currently being threatened by a vast proliferation of new laws, in a recently penned article for the Washington Post.

In that piece, George Will makes a point that many of our readers in North Carolina and elsewhere will find immediately obvious and logical. He states that "people deserve criminal punishment only if they engage in conduct that is inherently wrong or that they know to be illegal."

And yet, he adds, people across the United States are now being imprisoned unwittingly and in increasingly high numbers following criminal charges against them that relate to thousands of new statutory enactments.

Put another way: Prosecutorial overcharging is a serious problem, with government lawyers having a play book that is impressively thick and chock full of charging possibilities.

We'll take a closer look at some of Will's main contentions in our next blog post.

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