How to protect Americans from accidentally breaking the law
Congress has failed to enact clear criminal intent standards in recent laws. Here's how to fix it
By BOB GOODLATTE and ORRIN HATCH
http://www.politico.com/agenda/story/2016/1/goodlatte-hatch-criminal-justice-reform-mens-rea-000029
The news is replete with stories of Americans who have been convicted of crimes — and sometimes sent to prison — when they had no intent to break the law. For example, a 23-year-old man who found a buried skull on a hunting trip in Alaska and turned it over to the U.S. Forest Service was charged with removing an archaeological resource from public lands. Similarly, the parents of a young girl who saved a woodpecker from the family cat were fined for violating the Migratory Bird Act because it is a crime to take or transport a woodpecker.
Cases such as these make us shake our heads, but they also have a much more sinister effect: subjecting law-abiding citizens to prosecution for violating obscure laws of which they cannot possibly be fully aware undermines the legitimacy of federal criminal law.
Over the past several decades, the failure of Congress to articulate a clear standard of criminal intent, or mens rea — Latin for “guilty mind,” meaning the state of mind the government must prove a defendant had when committing a crime — coupled with the dramatic expansion of the federal criminal code, has resulted in a body of law that no average American citizen could be expected to read and understand, let alone conform his or her conduct to.
The House Judiciary Committee has already taken action to rein in the erosion of mens rea requirements, and Wednesday the Senate Judiciary Committee is holding a hearing on this important issue. As Congress focuses on criminal justice reform in the months ahead, it is imperative we address this issue so that honest Americans are not prosecuted for breaking laws when they had no intent to do so.
The U.S. Code currently contains nearly 5,000 federal crimes. Recent studies estimate that over the past three decades, Congress has averaged 500 new crimes per decade. In addition to statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability. Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.
To address this problem, we have sponsored bills in the House and Senate that seek to make a very simple, straightforward change to our criminal laws. Our bills say that in situations in which a federal criminal law fails to provide a clear standard of criminal intent, a default standard will apply. The purpose of the bills is to ensure that Congress does not erode the important protections criminal intent requirements provide. Criminal intent requirements ensure that honest, hard-working Americans do not become criminals because they accidentally do something unlawful or violate an obscure law.
Of course Congress can, if it wishes, create so-called strict liability crimes where the mere commission of an act is enough to trigger criminal penalties, regardless of the individual’s intent. But strict liability crimes are — or should be — the exception, not the rule. The default should be that we require the government to prove some level of criminal intent before locking a person up.
And that’s exactly what our bills do. Our goal is not to prevent Congress from creating new strict liability crimes or to apply criminal intent to every element of an offense. Nor do we seek to override existing criminal intent standards set forth in statute. Our goal is simply to say that when Congress has failed to specify the criminal intent standard, a default standard applies unless it is clear Congress intended not to require any proof of criminal intent at all. In these bills, Congress is merely codifying a well-established principle that federal courts have recognized for decades — that an intent requirement applies even if not expressly stated in statute.
Criminal intent requirements protect law-abiding Americans from being tripped up by the morass of modern criminal law. They guard against unjust prosecution and the incarceration of morally innocent actors. Legislation to shore up such requirements is sorely needed and will work to the benefit of all Americans.
Rep. Bob Goodlatte (R-Va.) is chairman of the House Judiciary Committee, and Sen. Orrin Hatch (R-Utah) is former chairman and a current member
