Criminal Facilitation and the First Amendment (Part 3)

by | Mar 28, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Supreme Court majority continued in relevant part: Statutory history is an important part of the relevant context. When Congress enacted in 1885 what would become the template for clause (iv), it criminalized “knowingly assisting, encouraging or soliciting” immigration under a contract to perform labor. 23 Stat. 333. Then, as now, “encourage” had a specialized meaning that channeled accomplice liability. And the words “assisting” and “soliciting,” which appeared alongside “encouraging,” reinforce the narrower criminal-law meaning.

When Congress amended that provision in 1917, it added “in duce,” which also carried solicitation and facilitation overtones. 39 Stat. 879. In 1952, Congress enacted the immediate predecessor for clause (iv) and simplified the language from the 1917 Act, dropping the words “assist” and “solicit,” and making it a crime to “willfully or knowingly encourage or induce, or attempt to encourage or induce, either directly or indirectly, the entry into the United States of any alien not lawfully entitled to enter or reside within the United States.” 66 Stat. 229. Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweeping—and constitutionally dubious—message. The better understanding is that Congress simply streamlined the previous statutory language. Critically, the terms Congress retained (“encourage” and “induce”) substantially overlap in meaning with the terms it omitted (“assist” and “solicit”). Clause (iv) is thus best understood as a continuation of the past.

Hansen argues that the absence of an express mens rea requirement in clause (iv) means that the statute is not limited to solicitation and facilitation. But when Congress placed “encourages” and “induces” in clause (iv), the traditional intent associated with solicitation and facilitation was part of the package. The federal aiding and abetting statute works the same way: It contains no express mens rea requirement but implicitly incorporates the traditional state of mind required for aiding and abetting. Rosemond v. United States, 572 U. S. 65, 70–71. Clause (iv) is situated among other provisions that function in the same manner. See, e. g., §§ 1324(a)(1)(A)(v)(I), (II).

The default mens rea in New Jersey when a statue is silent as to the mental element of a criminal offense is “knowingly.” To “knowingly” commit an offense is to commit it with as “knowledge to a substantial certainty” as opposed to “absolute certainty.”