Five notable GOP Senators introduce Mens Rea Reform Act of 2017

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:

• "The Pressing Need for Mens Rea Reform"
• "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
• Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
• Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
• "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."
• Could "mens rea" federal statutory reform become a priority for the next GOP Congress and for a Trump Administration?