Traditionally, a violation of the criminal law must consist both in “an evildoing hand” and an “evil-meaning mind.” The latter requirement is known among lawyers by the Latin term, “mens rea” which literally means “guilty mind.” Generally, this requirement meant that a defendant would only be found guilty of a crime if he acted with the intent to do harm, or at least with knowledge that harm would naturally follow from his or her voluntary action. Mens rea was considered an important limitation on the reach of the criminal law because, unlike the civil law, the criminal law carried a heavy social stigma and the possibility of imprisonment. It was, therefore, an appropriate tool for punishing only those whose conduct marked them as having “violated the basic social contract.”

You live in England. You have dabbled in some illegal activities and now find yourself on trial for a violent crime. Your attorney asks if you want to testify. You say yes. Now you are sitting in the witness stand, answering your attorney’s questions...

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” Although long a favorite of defense attorneys, actual applications of the rule, at least at the Supreme Court level, have been relatively rare. This is perhaps somewhat surprising as the rule’s roots in due process principles, and potential application where a strict construction of a statute results in an ambiguity, could lead both traditionally liberal and traditionally conservative Justices to favor its use. In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application...

The Federalist Society's Criminal Law Practice Group hosted this panel discussion on Drug Enforcement Policy at the 2009 National Lawyers Convention on Thursday, November 12, 2009. Panelists included Prof. John S. Baker Jr., of the Louisiana State University Law Center; Prof. Mariano-Florentino “Tino” Cuéllar, Special Assistant to the President for Justice and Regulatory Policy for the White House Domestic Policy Council; Mr. Aryeh Neier, President of the Open Society Institute; Hon. John P. Walters, Executive Vice President of the Hudson Institute; and Justice Robert P. Young, Jr., of the Michigan Supreme Court as the moderator.