Stronger Criminal Intent Requirement Would Help Reduce Overcriminalization
Emma Schindler, Undergraduate Public Policy Intern

On July 19, the House Judiciary Committee’s bipartisan Task Force on Overcriminalization held its second hearing since its creation. The hearing, “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law,” featured testimony from John Baker, Jr., Visiting Professor at Georgetown Law School and Professor Emeritus at LSU Law School, and Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers. In his opening statement, Task Force Chairman Rep. Jim Sensenbrenner (R-Wis.) called the erosion of the men rea requirement in federal law “one of the most pressing problems facing this task force.”

The principle of mens rea means that to convict a defendant in a criminal trial, the government must show that she acted with a certain level of intent when she violated the law. In its 1952 opinion in Morissette v. United States, the Supreme Court affirmed the importance of the mens rea requirement. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion,” Justice Robert Jackson wrote. “It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

The federal criminal code has rapidly expanded, however, and this expansion has chipped away at the principle underlying Justice Jackson’s lofty words. According to the Heritage Foundation, there are currently over 4,450 criminal offenses in the United States Code and as many as 300,000 federal regulations enforceable by criminal penalties. And Congress isn’t losing steam: on average, it creates 56 new crimes each year. Many of these statutes have murky mens rea requirements— or worse, none at all.

Furthermore, most deal with acts that are not inherently antisocial, in and of themselves, but are criminal only because Congress has passed a law that says so. This results in an unwieldy criminal code that even the most well-meaning citizen can violate unknowingly, and further growth of the already overcrowded federal prison system. “Everybody is a criminal.  There’s nobody over 18 who can’t be indicted for something,” Baker told the Task Force members.

Both witnesses emphasized that erosion of the mens rea requirement doesn’t just put innocent people in jail, but also undermines one of the fundamental purposes of the criminal justice system: deterrence. “If people don’t know something is wrong, they won’t be deterred from doing it,” Reimer said.

As member after member of the Task Force expressed concern, there was clear consensus that Congress must act to reign in the massive federal criminal code. Identifying the problem, however, is one thing—finding a solution is another.

Reimer offered a four-step solution: first, enacting a “default rule,” which would ensure by statute that adequate mens rea requirements apply to all statutes and regulations that have none; second, making the default mens rea standard higher by requiring that the conduct be “willful” instead of just “knowing;” third, limiting the use of the “strict liability” standard (i.e., where no mens rea is required at all) to cases where Congress has explicitly considered the consequences; and finally, requiring that all legislation proposing criminal offenses or penalties be referred to Congress’s Judiciary Committees before being enacted so that experts on the matter can examine these proposals. Reimer’s recommendations come in part from the 2010 report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law, by the Heritage Foundation and the National Association of Criminal Defense Lawyers.

TCP has been working with experts and policymakers from across the ideological spectrum on the issue of overcriminalization, and will continue to monitor and support the efforts of the House Task Force to rein it in.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

Donate Now

US Constitution

Upcoming Events