Todd Farha, CEO of WellCare Health Plans, was convicted of knowingly executing a fraud by submitting false expenditure reports to the state. However, the district court decided that “knowingly” didn’t actually have to mean that Farha knew that the reports were false, but only that in submitting the reports Farha acted with “deliberate indifference” as to whether they were accurate. Essentially, a non‐​lawyer was convicted for being insufficiently cautious in adopting an interpretation of an ambiguous regulatory statute.


The U.S. Court of Appeals for the Eleventh Circuit upheld Farha’s conviction even in the absence of the required statutory mental‐​state element (what lawyers call mens rea). The appellate court decided, in agreement with the district court, that deliberate indifference toward falsity may stand in for knowledge of falsity. The practical implication is that the court lowered the mens rea standard and used a civil standard of liability to a criminal case. (You can be liable in a civil lawsuit even if you’re not guilty for criminal‐​punishment purposes.)


Cato has now filed a brief supporting Farha’s request that the Supreme Court review his case. The lower court’s holding is out of step with precedent, with bedrock principles of statutory interpretation regarding the mental‐​state elements of a criminal offense, and with common sense notions of justice. The most egregious aspect of the ruling is that mens rea elements are seen as so crucial to the criminal law that the Supreme Court has been willing to read them into a statute when the statute is silent regarding necessary mental state.


Yet the Eleventh Circuit took the opposite approach and read out of the statute mental‐​state elements that make the crime too hard to prosecute. This decision is especially troubling in an era of over‐​criminalization, with an estimated 300,000 separate federal crimes. This situation is exacerbated by the fact that many of the crimes are inherently complex, leading to ambiguity in underlying regulatory‐​compliance requirements that makes it incredibly challenging for people to understand what they must do to avoid liability.


Unfortunately, instead of attempting to rectify some of this ambiguity, the court here added more ambiguity—because arguably any crime can have a lower mental‐​state requirement added by the court at trial. This ruling has given prosecutors more weapons and made it even harder for businesses to comply with rampant regulations and made their owners and officers subject to arbitrary legal jeopardy. Many people will now be stripped of their liberty simply on the grounds of an incorrect interpretation of complex and ambiguous statutes. With the deck already stacked in favor of the government—and with myriad civil remedies available—there’s no logical reason to add the weapon of a diluted mens rea to the government’s arsenal.


For further discussion of Farha v. United States and other issues attending regulatory crimes, tune into this Federalist Society teleforum today at 3pm ET (and the audio recording should appear at that link later).