For the past two years, I’ve been championing a reform that would make our criminal laws fairer and more just. It has to do with criminal intent requirements, also known as mens rea (Latin for “guilty mind”) requirements.
Broadly speaking, in order to convict a person of a crime, the government must prove both that the person committed an illegal act and that the person did so with criminal intent. Requiring the government to prove criminal intent—that is, to prove that the defendant acted with a guilty mind—protects individuals from going to jail for accidental conduct or for doing things a reasonable person would not think were wrong. It also helps prevent prosecutors from arbitrarily targeting disfavored groups for technical violations of arcane laws no one knows about.
Unfortunately, in recent years these crucial protections have eroded through regulatory encroachment and congressional inattention. The unchecked growth of the administrative state has brought with it hundreds of thousands of regulations with criminal penalties for such run-of-the-mill activities as dog-walking and surfing. Many of these regulations have no criminal-intent requirements, meaning officials can ensnare unsuspecting Americans who had no idea they were doing anything wrong.
At the same time, Congress has continued to pass laws criminalizing just about everything in sight. Be careful the next time you draw a picture of Smokey the Bear or put the 4-H logo on a poster. If you’re not careful, you could be breaking the law. Many of these laws similarly have no intent requirement—often because Congress simply didn’t bother to put one in.
The upshot of all this is that we now have on the books laws criminalizing just about every activity conceivable without adequate protections to ensure that only the truly culpable face criminal prosecution. This is a recipe for prosecutorial overreach and arbitrary enforcement.
So for the past two years I’ve been championing an effort to shore up intent requirements throughout our criminal laws. My proposal, endorsed by groups as ideologically varied as the Heritage Foundation and the National Association of Criminal Defense Lawyers, is simple. Congress should set a default intent requirement for all criminal laws and regulations that apply unless Congress or the relevant agency has expressly chosen in the text of the statute or regulation to set a lower intent standard.
This reform would not prevent lawmakers from creating crimes without any intent requirement—so-called “strict liability” crimes—but it would require them to be clear when they wish to do so. It would ensure that hard-working Americans do not find themselves on the hook for seemingly innocent conduct merely because Congress or an agency failed to have the forethought to put an intent requirement in the text of the law.
Regrettably, my efforts to enact this commonsense reform have been stymied by left-wing groups opposed to any proposal that they believe could make certain white-collar prosecutions more difficult. Never mind that the default would apply to all criminal laws, and thus treat all defendants fairly and equally, in line with our constitutional ideals. Because the default might make some prosecutions of some disfavored individuals more difficult, these groups oppose it.
I’ve been heartened in recent days to see several of my colleagues recognize publicly the need to include mens rea reform alongside other efforts to improve our nation’s criminal laws. Last Congress, these colleagues were hesitant to include my proposal with other reforms to sentencing and prison laws out of concern that left-wing opposition to my proposal could scuttle the entire project.
At the same time, liberal groups apparently made the calculation that rather than work toward common ground on my proposal, they would wait until the next Congress to ram through their preferred package under President Clinton and a new Democratic Senate majority.
Boy, were they wrong. In President Trump, they got a law-and-order candidate whose top legal adviser, Alabama Senator and Attorney General-designate Jeff Sessions, is one of the most vociferous opponents of liberal-style criminal justice reform. And Republicans maintained their Senate majority.
If there is going to be progress this Congress on criminal justice issues, both sides are going to have to be willing to negotiate. This is true of sentencing and prison reform, and it is true of mens rea reform as well.
I’ve maintained all along that we cannot have true criminal justice reform without mens rea reform, because mens rea requirements determine whether a person is guilty of a criminal offense in the first place. Equally important, such requirements are essential to protecting morally innocent individuals from government harassment and arbitrary prosecution.