The Environmental Protection Agency recently sent a Notice of Violation to Volkswagen Group of America, Inc., alleging that “VW manufactured and installed [software] in certain model year 2009 through 2015 diesel light-duty vehicles equipped with 2.0 liter engines.” The software “senses whether the vehicle is being tested or not based on various inputs including the position of the steering wheel, vehicle speed, the duration of the engine’s operation and barometric pressure” and “render[s] inoperative elements of the vehicles’ emission control system that exist to comply with CAA emission standards.”

How Bad is Volkswagen’s Alleged Deception?

The EPA alleges that in testing, the 482,000 diesel cars at issue would have complied with EPA emissions standards, but on the road, they emit far more pollutants than the EPA allows. Another report puts the number of vehicles as high as 11 million worldwide. In an interview, Drew Kodjak, executive director of The International Council on Clean Transportation, theorized that such a change could be linked to a boost in performance and fuel savings.

If these allegations are true, VW could pay up to $37,500 for each of the 482,000 diesel cars under the Clean Air Act. But according to the EPA’s notice, someone or some group of employees at VW “knew or should have known” that the software concealed “actual” emissions levels from the EPA. Thus, those individuals could face criminal charges as well.

The law generally forgives manufacturers when they produce a product that is flawed in some way that they could not reasonably have discovered. When a consumer or bystander discovers the latent flaw in some unfortunate accident, tort law generally forgives the manufacturer the first time an accident occurs. And there is generally no criminal liability on manufacturers for that kind of defect, precisely because no one had any intent to harm or conceal a potential harm.

The law treats actors who know about a problem and hide them quite differently. Volkswagen CEO Martin Winterkorn, who resigned in light of the scandal, responded to the EPA’s notice by apologizing to “customers and the public.” He also promised to“cooperate fully with the responsible agencies, with transparency and urgency, to clearly, openly, and completely establish all of the facts of this case.” He also added that “Volkswagen has ordered an external investigation of this matter.”

How Will the Department of Justice Respond?

It is unclear at this point what the government will ultimately do to VW—whether it will pursue a criminal investigation or seek a civil fine or administrative penalty. What seems clear, though, is that the Department of Justice will, in all likelihood, open a criminal investigation against any individuals who might have been involved in the software manipulation. There are still many unanswered questions, and any individuals who might be charged would, of course, be entitled to a presumption of innocence. It is equally clear, however, that this manipulation did not happen by magic. Somebody was aware that it had been done, and somebody likely ordered that it be done. This software manipulation and subsequent concealment, if true, may very well show an intent to break the law.

Under recent guidelines issued by DOJ Deputy Attorney General Sally Yates regarding “Individual Accountability for Corporate Wrongdoing,” the DOJ will retain discretion to prosecute a corporation or culpable individuals but will do so under shifting policies.

The policy shift should place the focus in criminal investigations where it should be: on individuals whom prosecutors reasonably believe to have committed a morally blameworthy act, known as the actus reus, along with an “evil” frame of mind, known as mens rea or scienter.

While opening a criminal investigation against individuals who may have been involved is an entirely appropriate course of action, pursuing a criminal conviction—the highest punishment and moral sanction that society can impose—should generally be limited to those actors who knew about a violation of law and participated in it, not those who “should have known” that a particular course of conduct might violate the law. A “should have known” standard of culpability is a vague negligence concept that is more appropriate for determining tort liability, not for branding someone a criminal. Otherwise, the criminal law is a hammer beating screws; its policy to deter actual wrongdoing, as opposed to mere negligence, is undermined.

As said in a previous Heritage paper: “mens rea was considered an essential element of virtually every crime because it ensured that the criminal law ensnared only morally culpable parties.”

Any potential DOJ investigation into Volkswagen’s software should reflect that principle.