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November 9, 2016

Could "mens rea" federal statutory reform become a priority for the next GOP Congress and for a Trump Administration?

The question in the title of this post is prompted by the fact that nearly all GOP members of Congress who have discussed an interest in federal criminal justice reform, as well as many right-leaning policy advocates and advocacy groups, have urged so-called federal "mens rea" reform.  An articulation of these realities finds effective expression in this September 2015 "Legal Memorandum" authored by John Macolm, the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, under the titled "The Pressing Need for Mens Rea Reform."  I blogged this document when it was released 14 months ago, and highlight its abstract and "Key Points":


One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws.  Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system.  Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished.  That is something that should concern everyone.

Key Points

1. Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.

2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist.  Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.

3. Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided.  If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.

Notably, as I lamented in this post in January 2016, I have long feared that Democratic opposition toward GOP eagerness for mens rea reform was a problematic impediment to any bipartisan federal statutory sentencing getting to Prez Obama's desk before he left the oval office. But the Election 2016 results mean that the next GOP Congress now need not have to worry too much about opposition to mens rea reform from Democratic members of Congress and also probably that such reform will have the support of our next President.

Of course, very few non-lawyers even understand what the term mens rea means, and I am certain that those who voted for Republican federal elected officials did not have mens rea reform in mind when voting. (Indeed, ironically, mens rea reform would generally make it harder to prosecute the kinds of crimes that has led to Hillary Clinton being investigated by the FBI.) Thus, I doubt anyone other than federal criminal lawyers and think-tank types would even notice if mens rea reform is or isn't part of the agenda of the next Congress and Administration. But I hope it is.

Some recent and older related posts:

November 9, 2016 at 12:55 PM | Permalink


"(Indeed, ironically, mens rea reform would generally make it harder to prosecute the kinds of crimes that has led to Hillary Clinton being investigated by the FBI.)"

Curious what you mean by "kinds of crimes"--do you think mens rea reform would affect national security crimes that have a specific mens rea? Which of the crimes implicated by her conduct don't have a stated mens rea standard?

Posted by: federalist | Nov 10, 2016 2:08:51 PM

Any response?

Posted by: federalist | Nov 11, 2016 6:49:58 PM

Sorry not to respond before, fed, distracted while on the road. Now an answer:

1. I surmise that some (but not all) of the kinds of crimes that surround the use of the private email might not require purposeful or willful wrongdoing. But, candidly, I have never spent sufficient time researching all the possible federal crimes that HRC's poor conduct as SoS might transgress. Your good follow up to my vague reference is a useful reminder that the specifics here matter, and I have never fully understood the specifics of crimes for which HRC was being investigated.

2. In addition to the possible email/server issues, I have also heard the Clinton Foundation is subject to FBI investigation. And I surmise that means rea reform would impact efforts to prosecute government officials for "pay to play" actions. Again, I am engaging in fuzzy thinking and talk here, and I appreciate you pressing me on this front.

3. Speaking of fuzzy, it is fuzzy in my mind what advocates for mens rea reform actually want. I have seen and heard lots of distinct possibilities. Because I believe you, fed, favor mens rea reform, I would love to have the form you hope it could take and whether you think this should be a priority for the GOP Congress.

Posted by: Doug B | Nov 12, 2016 8:14:16 AM

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