« "What’s Behind the Decline in the Death Penalty?" | Main | Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya »

October 3, 2017

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 at 10:36 AM | Permalink

Comments

If this law is enacted, I may have to challenge it in federal court, because it violates the Establishment Clause by its use of Latin, its supernatural content, its Catholic origin.

Senator Hatch wants less criminalization. He may propose the doctrine of desuetude at the national level, require proof all criminal laws be safe and effective prior to enactment, and require testing of effectiveness after enactment.

Posted by: David Behar | Oct 3, 2017 1:52:16 PM

Ah yes, "one of the major roots of the problem" of mass incarceration is that a few federal crimes don't have a mens rea requirement. Interesting how we have moved from Cj reform, with mass incarceration as a focus, to overcriminalization, to the real problem with the explosive growth of local jails and state prisons is federal mens rea. (I thought it might have something to do with race...)

The main effect of this will be to give a number of corporate executives leeway -- "freedom" -- to make questionable statement and get away with harms against consumers, workers and the public. Opposition isn't misguided, Doug.

Further, criminal laws that do not specify mens rea can have a purpose in protecting the public in situations where corporations provide plausible deniability or structured unaccountability.

Posted by: Paul | Oct 4, 2017 3:22:17 PM

A major root of modern mass criminalization, Paul, is a denigration of mens rea and the view that "questionable statements" ought to prompt criminal investigations funded by taxpayers and subjecting persons to criminal sanctions without proof of culpable/dangerous mental states by the actor. The MPC rightly warned that we would bastardize the criminal law if we allowed criminal sanctions without requiring proof of mens rea, and they rightly foresaw the risk of criminal law creep if any and every effort to "protect the public" led to the creation of a criminal law without this fundamental element of criminality.

I trust you realize, Paul, that any and every law you might not like or find too harsh --- e.g., severe mandatory minimum prison terms for even low level drug offenses, extremely broad and onerous sex offender restrictions --- can be readily defended with the claim that any harsh or seemingly extreme use of criminal liability is part of "protecting the public in situations where [groups or institutions] provide plausible deniability or structured unaccountability."

I think it quite fair to criticize anyone who claims mens rea issues represents the only problem that needs fixing, but I think it quite misguided to suggest it is not a problem or to think we can use the criminal law in an extreme manner in one arena and not see that kind of extremism extend to other spheres.

Posted by: Doug B | Oct 4, 2017 8:38:33 PM

For many years some of us have, in assisting criminal defense counsels and defendants, attempted to establish the necessity of charging both the actus reus and the mens rea. Experiencing the continual blockade by prosecutors, we reworked the "Bill of Particulars" to seek to expand the charging instrument to list each one of the 'essential elements' of the crime being charged. In some 200 plus attempts, the response from the government was simply that the "Bill of Particulars" was unnecessary and that 'at trial' these 'elements' would be proven beyond a reasonable doubt.

The obvious problem with that statement is that virtually no defendant would elect to go to trial. In most criminal cases the defendant would rather enter into some agreement thus relieving the prosecution from the necessity (other than some simple proffer at the change of plea hearing that they could have proven at trial...) as to the charging and proofing of the crime's essential elements.

This always presented the problematic sentencing issues of both 'relevant conduct' (i.e. drug weights, amount of loss, conspiratorial conduct not charged) and the criminal sanctions including forfeitures and restitutions.

This proposed change by these five notable GOP Senators who have introduced the Mens Rea Reform Act of 2017 goes a long way to mandate that the mens rea is not run over or tucked away within some change of plea proffer. Such proffer is mostly known to be little more than story telling by the prosecution and accepted by the Courts as standard operation procedure.

The next critical aspect will be to educate and support defense counsels in mandating this become the benchmark in the pre-trial process by at the least instituting the use of such tools as the Bill of Particulars or Procedural Rule 201's Taking of Judicial Notice.

Kudos to those that will mandate such actions to protection of the defendants rights.

Posted by: Doug MacCachran | Oct 5, 2017 2:25:52 PM

For many years in assisting criminal defense counsels and defendants, we attempted to establish the necessity of charging both the actus reus and the mens rea. Sensing the blockade by prosecutors we reworked the "Bill of Particulars" to seek to expand the charging instrument to list each and every essential element of the criminal crime being charged. In some 200 plus attempts the response from the government was simply that the "Bill of Particulars" was unnecessary and that 'at trial' these elements would be proven beyond a reasonable doubt.

The obvious problem is that virtually no defendant would elect to go to trial and rather enter into some agreement thus relieving the prosecution from the necessity (other than some simple proffer at the change of plea hearing that they could have proven at trial...) as to the essential elements.

This always presented the problematic sentencing issues of both 'relevant conduct' (i.e. drug weights, amount of loss, conspiratorial conduct not charged) and forfeitures and restitutions.

This change via S.2298 - Mens Rea Reform Act of 2015 goes a long way to mandate that the mens rea is not run over or tucked away within some change of plea proffer of storytelling by the prosecution and accepted by the Courts as standard operation procedure.

The next critical aspect will be to educate and support defense counsels in mandating this become the benchmark in the pre-trial process by at the least instituting the use of such tools as the Bill of Particulars or Procedural Rule 201's Taking of Judicial Notice. For many years some of us have, in assisting criminal defense counsels and defendants, attempted to establish the necessity of charging both the actus reus and the mens rea. Experiencing the continual blockade by prosecutors, we reworked the "Bill of Particulars" to seek to expand the charging instrument to list each one of the 'essential elements' of the crime being charged. In some 200 plus attempts, the response from the government was simply that the "Bill of Particulars" was unnecessary and that 'at trial' these 'elements' would be proven beyond a reasonable doubt.

The obvious problem with that statement is that virtually no defendant would elect to go to trial. In most criminal cases the defendant would rather enter into some agreement thus relieving the prosecution from the necessity (other than some simple proffer at the change of plea hearing that they could have proven at trial...) as to the charging and proofing of the crime's essential elements.

This always presented the problematic sentencing issues of both 'relevant conduct' (i.e. drug weights, amount of loss, conspiratorial conduct not charged) and the criminal sanctions including forfeitures and restitutions.

This proposed change by these five notable GOP Senators who have introduced the Mens Rea Reform Act of 2017 goes a long way to mandate that the mens rea is not run over or tucked away within some change of plea proffer. Such proffer is mostly known to be little more than story telling by the prosecution and accepted by the Courts as standard operation procedure.

The next critical aspect will be to educate and support defense counsels in mandating this become the benchmark in the pre-trial process by at the least instituting the use of such tools as the Bill of Particulars or Procedural Rule 201's Taking of Judicial Notice.

Kudos to those that will mandate such actions to protection of the defendants rights.

Posted by: Doug MacCachran | Oct 5, 2017 2:27:39 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB