Mens Rea: Missing the Most Important Piece of Criminal Justice Reform
By Orrin Hatch
[LINK]
Criminal justice reform is a hot issue right now. Various bills have been introduced to reduce sentences, allow prisoners to earn credit towards early release, and ease offenders’ reentry into society. Although certain of these proposals may have laudable goals, they all miss the most important criminal justice problem facing our country, namely, that the federal government has criminalized too much conduct and made it too easy for prosecutors to convict individuals for seemingly innocent acts.
Over the last several decades, the number of federal crimes has exploded. There are now over 5,000 federal statutory crimes and over 300,000 regulatory crimes, the vast majority of which the average American has no idea about. For example, walking a dog in a federal park on a leash longer than six feet is a crime, as is using the 4-H Club logo without authorization. There is no reason for these acts to be crimes. Any epidemic of overlong dog leashes or misappropriated 4-H Club logos can be adequately addressed with civil penalties.
Equally problematic, many of these obscure, frankly ridiculous crimes have weak or nonexistent criminal intent requirements. Such requirements, also called mens rea (Latin for “guilty mind”) requirements, require prosecutors to prove that a defendant acted with some degree of mental culpability. They prevent hard-working Americans from becoming accidental criminals by unwittingly breaking the law or doing something no reasonable person would know was wrong.
Strengthening mens rea protections has been a priority for conservatives for many years. Nearly a decade ago, scholars at the Heritage Foundation and the Federalist Society began talking about how the deterioration of criminal intent requirements is undermining liberty. In 2013, the House convened hearings on the issue at which Republicans and Democrats alike expressed concerns about the absence of meaningful mens rea protections in much of our criminal code.
Legislation is now pending in both the House and Senate to shore up these crucial protections by creating a default criminal intent standard for all statutes and regulations that lack an intent requirement. Such a default would help protect individuals from being criminally prosecuted for accidental conduct or for doing things that shouldn’t be a crime in the first place.
Unfortunately, the current Senate sentencing bill, which supporters are promoting as “comprehensive” criminal justice reform, contains no default mens rea provision. Instead, it focuses on back-end reforms to sentencing and anti-recidivism programs. But as former Attorney General Ed Meese recently told the Senate, “You simply cannot have meaningful criminal justice reform without tackling both sides of the problem: the front-end question of whether an individual deserves punishment and the back-end question of what punishment the person should receive. In this regard, criminal justice reform without mens rea reform is incomplete.”
In its current form, the 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. Much of the bill is a liberal wish list—the sort of legislation you would expect a Democratic, not a Republican, Congress to produce. That liberals like Elizabeth Warren support the sentencing bill as is and oppose efforts to add meaningful mens rea protections to the bill tells you what a raw deal the bill is for conservatives. Congress, and conservatives, can do better.
