Feds Criminalize Things That Aren’t Crimes
By Senator Orrin Hatch
http://www.wsj.com/articles/feds-criminalize-things-that-arent-crimes-1454614019
Sen. Grassley is mistaken that creating a default criminal-intent standard would “radically change fundamental principles of law.”
I read with interest the Feb. 1 letter by my good friend and longtime colleague, Sen. Chuck Grassley. He and I agree on most things. But as the author of the Senate bill his letter erroneously attacked, I feel compelled to respond.
Sen. Grassley is mistaken that creating a default criminal-intent standard would “radically change fundamental principles of law.” To the contrary, it would protect innocent people from being deprived of their liberty by strengthening one of the bedrock principles of our legal tradition, namely, that to be guilty of a criminal offense, a person must have acted with a guilty mind.
Such a default criminal-intent standard is essential because Congress has departed from fundamental legal principles by creating crimes that don’t require proof of criminal intent. Activities like walking a dog in a federal park on a leash longer than six feet, using a surfboard in a federally designated swimming area and using the 4-H Club logo without authorization are all now federal crimes regardless of a person’s intent. If legislators wish to dispense with criminal-intent requirements, my bill forces them to do so explicitly. Too much is at stake to allow congressional inattention, or sloppy drafting, to deny individuals the rightful protections that criminal-intent requirements provide.
My bill is also far more modest than my friend Sen. Grassley suggests. It applies only in instances where Congress has failed to specify a criminal-intent requirement and in no way limits Congress’s ability to create strict liability crimes. It merely requires Congress to be clear on the matter.
It is simply wrong to claim that supporters of this common-sense approach are unwilling to compromise and are thereby holding sentencing reform hostage. I have been a senator long enough to know that the legislative process inevitably involves give and take. I remain ready and willing to work with colleagues to include a default criminal-intent requirement as part of a broader criminal-justice reform package.
Without such a provision, however, the current Senate sentencing bill is a bad deal. It prioritizes the release of drug traffickers and violent offenders over reforms to protect innocent individuals who should not be prosecuted in the first place. It fails to address the heart of the problem: that we have criminalized too much conduct and allowed government to convict in too many cases without demonstrating criminal intent.
I doubt that dispensing with basic legal protections and enabling government to jail citizens without having to prove criminal intent is a position with which many readers would agree.
