« Second Circuit finds procedural problems with re-sentencing after 15-year delay | Main | Fascinating political corruption federal sentencing to follow in New York »

May 6, 2010

Notable new report complaining about the erosion of criminal intent in federal law

Withoutintentcover As detailed in this NACDL press release, yesterday the Heritage Foundation and NACDL released a big report and recommendations on Capitol Hill concerning federal criminal law. Here are the basics:

In a joint press conference this morning on Capitol Hill commemorating Law Day 2010, Rep. Bobby Scott (D-VA) and Rep. Louie Gohmert (R-TX), the Chairman and Ranking Member of the House Crime Subcommittee, respectively, sponsored the release of the groundbreaking, non-partisan report prepared by the National Association of Criminal Defense Lawyers and the Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. In addition, NACDL Executive Director Norman Reimer and Former Attorney General Edwin Meese also spoke.

In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes that lack adequate criminal intent protection for innocent actors. NACDL and Heritage undertook an unprecedented study of the federal legislative process which yielded this report. Among its findings, the study determined that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57 percent lacked an adequate guilty-mind requirement. The report also reveals that 23 of those inadequately protective offenses were even enacted into law.

The full "Without Intent" report can be accessed at this link, and a helpful one-page fact sheet is available here. In addition, the reports four-page executive summary is availble at this link.

In addition to urging all federal criminal practitioners to read this new report, I hope that all criminal law professors will have this report in mind as they prepare to teach basic criminal law to new law students this coming Fall.  I have long lamented that traditional criminal law instruction still puts extraordinary emphasis on mens rea concepts even though modern criminal law often fails to give much attention to these matters.  Though mens rea will always be a fundamental aspect of criminal law theory, this report reinforces my concern that we disserve law students if and when we give them the impression that mens rea is the most fundamental aspect of actual modern criminal law practice.

May 6, 2010 at 09:13 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Notable new report complaining about the erosion of criminal intent in federal law:


All crime should be strict liability, and based on amount of harm, and repetition of misconduct.

Mens rea is Latin. Latin is the language of a church.

It is supernatural, and is not a fact of nature.

It is an attempt to find a loophole to Draconian consequences for all crime in 1270, i.e. death.

As an article of faith, it is a function of God who reads minds and judges people after death. Not even the Medieval church believed men could read minds.

Half the crimes are carried out while legally intoxicated, and have no intent. Many criminals have no recall. Intoxication is not a defense.

Lack of intent does not reassure about the safety of releasing the person. The hunter who shoots another thinking him a deer is not necessarily safer to release than one shooting the other after the other's wife paid him $10,000 to do it. The careless hunter may get drunk again and slam into a school bus going to hemophilia camp. We know the contract killer does not kill unless paid. Only the prior track record of each is a guide to the safety of release.

All of the above have intent violating the Establishment clause.

Posted by: Supremacy Claus | May 6, 2010 9:24:17 AM

At last SC you have said something that makes some enough sense (at least it seems to be logically consisent) that I can understand your point. However, if intent (being the subjective experience of the criminal related to the criminal act) is supernatural, then how can the law recognize the subjective experience of the victim (suffering) and mete out punishment (which implies moral judgment in and of itself).
You cant have it both ways.

Posted by: KRG def attny | May 6, 2010 11:50:03 AM

Thrre's a similar trend in state legislation, and that affects a lot more people than federal criminal prosecutions. For example, second-degree murder in Michigan is a general-intent crime, though it carries a life penalty. "Criminal sexual conduct," the new (since about 35 years ago) label for rape and related sex offenses, is usually a general-intent crime. One consequence is that insanity and intoxication, always tough defenses to win with in the best of circumstances, are no longer defenses to such charges.

Posted by: Greg Jones | May 6, 2010 4:59:29 PM

I would appreciate hearing from defense types about the use of the Establishment Clause as an appellate weapon of mass destruction, invalidating criminal codes around the nation. Each is filled with Medieval, supernatural garbage, and all must go.

I yell at a very nervous person, "Hey, you. Give me your wallet," he gets so upset and rattled by my loud voice, he screams and gives it to me to prevent any more yelling. However, there is a subjective sense of being upset.

I quietly, say to a calm person, "See this gun. I will shoot you in the head with it if you do not give me your wallet." He gives me the wallet. I take out $100, and return it. He says, "Thank you for your courtesy. You saved me a lot of effort to replace the cards in it." He is not upset, but is grateful to me, at this business like transaction. We quietly go on our way.

Which scene is a crime? The one with the rattled nervous person, or the one with the quiet grateful person?


1) The subjective nature of victim suffering violates legality, and the procedural due process right to notice. The idea that defendants must take victims as they come, make defendants pay for victim genetics and life experiences, something they had nothing to do with.

2) The retribution implied by your scheme of justice comes from ...? Correct, the Bible. Retribution is unlawful in our secular nation. It is a waste of time and money, and an immature goal of the criminal law.


Job One and Job Last of government is personal safety. How would cut the 23 million FBI Index felonies by 90%, permanently, without changing our dynamic culture or intimidating ordinary people? Go after the person, not the act. Each charge stands in for 100's of crimes by this person. He cannot be deterred, being selfish, fearless, and impulsive. Each permanent incapacitation of repeat violent offenders (not necessarily of murderers), will prevent 10's of thousands of future crimes by that person, assuming no effect on others.

No lawyer will ever enact such laws. It would be a weapon of mass lawyer job destruction. That is why the lawyer must be excluded from all policy positions.

The alternative is to prosecute prosecutors, judges for failing to provide "honest services" due to the undisclosed conflicts of interest with no warning to the public.

Posted by: Supremacy Claus | May 6, 2010 5:41:48 PM

Why should intoxication be any defense? Mitigating perhaps, but not absolving. If you choose to become intoxicated you are taking the risks associated with lowered capacity and should be responsible for that choice. I would be willing to see involuntary intoxication somewhat differently but my sense is that in the vast majority of cases intoxication is voluntary, indeed sought out.

Posted by: Soronel Haetir | May 6, 2010 7:54:34 PM


How many felonies do you commit a day, a week, a month, a year, a lifetime? I bet you are not 1,2,3 dead because (1) the laws are not in place to do it and (2) you haven't been caught. Like the rest of us you are not pristine. You got warts baby-you are too scared to admit it. Get off your high horse and remember we are human-we make mistakes-we exercise poor judgment when we are young-when we are impaired, pharmocologically, by status, genetically and otherwise.

Posted by: ? | May 6, 2010 9:23:06 PM

I have committed no violent FBI Index felonies. My horse is only high as seen from the perspective of the lawyer dumbass, the victim of a criminal cult mentally crippling indoctrination, mired in a Medieval swamp of supernatural doctrines, refusing to grab the lifeline. Otherwise, I am an ordinary person, an ambassador from earth to this lawyer Twilight Zone.

I have committed many regulatory infractions, but those are invalid, pretextual gotchas for lawyer land piracy. They are crimes themselves, in insurrection against the constitution. In my defense I have used other regulatory schemes to bully, intimidate, and push back government regulators. I have shamelessly used the race card. I have filed regulatory complaints against the regulators, and kept them busy with their own survival. Yea, so what? These are crooks who deserve to be driven out of their jobs (a frequent occurrence if you come around to the Supremacy). The number of regulations is literally infinite. Some are incomprehensible even to experts, and I have exploited these features against government workers. The cautious will back off from an enforcement in fear of a regulation he does not understand, on the possibility it could backfire. Although I do not file frivolous complaints, I feel free to file incomprehensible complaints. The race angle is always a good one, however remote from the subject. It ends all inquiries, when linked to race, and the surface beef is a pretext. I have not yet gotten into the gay angle.

You may be pleased to know, I always bring a lawyer who hates the government. He has to be willing to try the new rather than to cave in.

Feel free to come up with any regulatory charge. I will link it to racial animus by white government slackers.

Example. You say Goldman Sachs securitized mortgages it knew were shaky. Racist. Those mortgages allowed black folks to own their homes and the racist white government workers want to keep the uppity black folks down, dependent on white landlords, excluding striving black people from the American dream which is for whites only. Why the lawyers are not pushing back that way, I don't know. My sole explanation is the dumbass theory.

Posted by: Supremacy Claus | May 6, 2010 11:06:33 PM

Professor Berman:
Thanks for your article on the Heritage Foundation/NACDL study. I am an associate with Ifrah PLLC, a firm with a significant white collar defense practice. I reviewed the study and posted a comment on the firm's blog, see http://ifrahlaw.com/blog/?p=58. I'm interested to hear your feedback.
Many thanks,

Posted by: Jeff | May 18, 2010 2:25:33 PM

A couple of weeks ago, I attended an interesting panel discussion on this report at The Heritage Foundation. I wrote a post on it here http://crimeinthesuites.com/heritage-nacdl-session-weighs-in-on-criminal-intent/ (Heritage, NACDL Session Weighs In on Criminal Intent - Crime in the Suites).

The panelists, including Brian Walsh (Heritage Foundation) and Norman Reimer (NACDL), said that less than half of the non-violent criminal offenses proposed by the 109th Congress were forwarded to the House and Senate Judiciary Committees for review. Criminal offenses increasingly are defined without appropriate oversight – often by regulators.

Data from the study could be useful for challenging criminalization by bureaucrats instead of by politically accountable legislators acting with the benefit of adequate judiciary committee oversight.

Posted by: Jeff | Jun 7, 2010 2:26:45 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