Heritage Foundation and NACDL release "Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later"

This NACDL news release discusses a notable new report on a depressingly old problem with federal criminal law (and sentencing).  Here are excerpts from the release, with links from the original:

The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later. The report is co-authored by Zack Smith, Heritage legal fellow, and Nathan Pysno, director of economic crime and procedural justice at NACDL.

This new report — a study of the 114th Congress — revisits a 2010 joint report by The Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which found that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57% lacked an adequate guilty-mind requirement.

The new study finds that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate.

Ensuring an adequate mens rea provision is included in statutes and regulations that create criminal offenses is critical. The average person is likely unaware of the vast majority of these crimes and may have no effective notice whatsoever that his or her conduct may be prohibited. It is difficult to imagine how the average person could be expected to “know” the law when no one, including our lawmakers and the U.S. Department of Justice, knows how many federal crimes are actually on the books.

As explained in this new report’s foreword, co-authored by former Attorney General Edwin Meese III and Global CEO of Fair Trials and former NACDL Executive Director Norman L. Reimer:

“The findings of this new report, Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later, are encouraging, but show that further progress is needed. We hope that Representatives, Senators, their staff members, and anyone else who reads this new report take its suggestions seriously. Fostering awareness of the problem of inadequate criminal intent requirements in criminal laws is the first step toward principled reform. Taking appropriate action is the next step.”...

As set forth in this new report’s conclusion:

“Once again, [The Heritage Foundation and NACDL] urge legislators to seriously consider and to adopt the recommendations made in the report, as well as those in the original report. When Congress makes new criminal laws, it should prioritize clear drafting of new criminal provisions and use standardized mens rea terminology consistently across those new statutes.  Each chamber of Congress should refer statutes that create new crimes to its respective judiciary committee, where those committees should consider the appropriate mens rea, providing for defenses, and opportunities to cure in appropriate circumstances.  Similarly, Congress should consider enacting default mens rea legislation. Finally, Congress should require that the number of federal crimes currently on the books be counted.”

Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later is available at: www.heritage.org/without-intent-revisited and www.nacdl.org/WithoutIntentRevisited.

The 2010 joint report by the Heritage Foundation and NACDL – Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law – is available at: www.heritage.org/crime-and-justice/report/without-intent-how-congress-eroding-the-criminal-intent-requirement and www.nacdl.org/withoutintent.