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May 17, 2016

"How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."

The title of this post is the headline of this notable new Politico commentary authored by Professor Alex Sarch. Here are excerpts:

Despite gridlock and the distraction of a presidential election, Congress hoped to pass legislation this year that would overhaul our flawed criminal justice system. But with the election approaching, that hope is rapidly disappearing over disagreements on one controversial issue: “mens rea reform.”

“Mens rea” — Latin for “guilty mind” — refers to requirements in criminal law that concern a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform also make such requirements in federal law stricter, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked at the proposed reforms, arguing that they would make it much harder to prosecute corporate executives for white-collar crimes.

Both sides have a point. Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction. Instead of allowing the mens rea issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement would improve our criminal law and pave the way for comprehensive criminal justice reform....

Late last year, Republicans introduced bills in the House and Senate to reform the mens rea requirements in federal law. But both bills have significant flaws that may actually create more confusion and protect culpable actors. Since courts already presume that criminal statutes include a mens rea requirement, an ill-conceived mens rea policy would be worse than the status quo.

The Senate bill would make it too hard to convict culpable actors because it says that for crimes without an explicit mens rea requirement, prosecutors must prove willfulness — defined as “knowledge that the person’s conduct was unlawful.” This standard has scary implications.... [W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)? For this reason, Department of Justice officials and other policy groups have criticized the proposed mens rea reform bills for making it harder to prosecute corporate crime.

The Senate bill does include an important exception for statutes to which Congress affirmatively intended no mental state requirement to apply. Moreover, the bill would not change any mental state elements established by Supreme Court precedent (though notably not precedent from Federal Courts of Appeals). However, these provisions do not make up for the bill’s dangerous new willfulness standard.

The House bill has been criticized as confusing, but it is a less extreme proposal than the Senate bill. It generally requires only knowledge of the facts constituting the offense as the default mental state requirement. In addition, when it comes to crimes that a reasonable person would not know to be illegal — largely crimes in technical areas like securities, tax or environmental law — the government would also have to prove that “the defendant knew, or had reason to believe, the conduct was unlawful.” In other words, it would have to show that they 1) knew the facts constituting the offense and 2) should have known their conduct was illegal. This means that mere negligence as to illegality would suffice for these crimes.

So for a bank executive accused of accounting fraud, for example, the government would only have to show that she 1) knew what she was doing (i.e., making false statements) and 2) should have known — based on her experience and professional role — that her actions were illegal.... However, the House bill has two problems. First, unlike the Senate bill, it does not make exceptions for statutes that courts have already interpreted to include a mens rea element or for statutes that Congress clearly intended to have no mental state requirement. Second, the bill makes it easier for culpable actors to escape liability by claiming ignorance of the law. Those accused of a technical crime could avoid punishment by claiming they didn’t realize their actions were illegal and that it wasn’t their responsibility to find out.

However, these problems can easily be fixed: Congress should add exceptions to the House bill and adopt regular knowledge as the default mens rea. Effectively, this deletes the second requirement from the House bill. In other words, for technical crimes, the government would not have to prove a defendant should have known his conduct was illegal, just that it was illegal and that the defendant knew the circumstances of the action. This knowledge standard would not make ignorance of the law any kind of excuse. Such a modest proposal should be an acceptable compromise, as it is only a small departure from the House bill. Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.

Though I appreciate this effort to find a mens rea middle ground that might help create more consensus on criminal justice reforms in Congress, I continue to feel strongly that those who oppose the incorporation of a high mens rea requirement in federal criminal laws to be misguided. Put simply, I really do not see any "scary implications" of having a high mens rea requirement for federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea.

May 17, 2016 at 09:58 AM | Permalink


A high mens rea requirement is beneficial, but only for natural persons.

Posted by: Jonathan Edelstein | May 17, 2016 10:15:44 AM

Also, mens rea is not the biggest hurdle to passing sentencing reform.

Posted by: thinkaboutit | May 17, 2016 10:23:30 AM

:federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea:

Doesn't quite seem the same thing especially if the civil laws often can basically be treated like a cost to do business.

Posted by: Joe | May 17, 2016 11:32:42 AM

"[W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)?"

I hate this feigned ingeniousness. So let's replace the phase "business executives" with "justice department lawyers who claimed that torture was legal" or "justice department lawyers who claim that Obama's war on ISIS is not illegal."

My objection is less what the standard actually is than the way the standard is molded and shaped so that people in power insulate themselves from the law that they enforce against others.

Posted by: Daniel | May 17, 2016 12:47:07 PM

Calling reform efforts an "overhaul" is a complete joke. Nibbling at the edges might be a better descriptor. Also, while I don't doubt the mens rea issue, it isn't a public squabbling point on reform efforts. Finally, mens rea is just nibbling at the edges of the real problem, which is federal overcriminalization.

Posted by: Fat Bastard | May 17, 2016 1:03:44 PM

Why is it such an offensive notion to require the Government to prove that someone "willfully" violated the law? I think that taking someone's liberty from them is a big deal, and should not be easy--white collar crime, corporation, drug offender, or otherwise.

Posted by: Brandon Sample | May 17, 2016 1:28:02 PM

I take the issue amounts to the details of what "willfully" means in practice.

This isn't akin to the average citizen. Yes, when you run a business, sometimes you are put to a higher test. And sometimes, more than the average person, some "reason to know" standard that isn't quite legally "willfulness" might be enough.

And, a "crime" doesn't always just entail "taking someone's liberty" as in putting the person in prison.

Posted by: Joe | May 17, 2016 2:05:46 PM

But Joe, if we are talking just about fines and/or shuttering a bad business, this can all be done via civil laws and with less procedural burdens. What generally makes criminal law different is that the punishment involved taking someone's liberty, and that is a big part of the reason I think a high mens rea standard is appropriate --- and deemed critical historically in definining the big difference between criminal and civil laws.

Posted by: Doug B. | May 17, 2016 2:38:31 PM


Well, that IS the historical distinction but one wonders--given recent supreme court decisions regarding religious freedoms--whether that historical distinction has any continued vitality. How does one put a legal fiction in jail? One can't. So it seems reasonable then that the actions of the corporation be imputed to the flesh and blood entities that operate within them. A corporation should not be a shield for criminal activity anymore than a President escaping blame by saying "well, the lawyers told me to do it." Law is the creation of men and sooner or later it is men who have to pay the price for its violation.

Posted by: Daniel | May 17, 2016 5:27:59 PM

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