Could Prez Trump's new EO on overcriminalization prompt the US Sentencing Commission to review strict liability guideline enhancements?

As flagged in this post, just a couple of days before he left the Oval Office back in 2021, Prez Trump issued an exective order titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  I am pretty sure that EO got quickly repealed in the early days of the Biden Administration.  But with a second stint in the Oval Office, Prez Trump this time prioritized this important criminal justice reform topic with this new EO dated May 9, 2025 titled "Fighting Overcriminalization In Federal Regulations." 

Because I have long been troubled by federal "overcriminalization," and because I have work with various public policy groups on advocating for various mens rea reforms, I am quite pleased to see this new EO.  And, as the title of this post suggests, I am keen to speculate about whether and how the EO could have some sentencing echoes.  The EO merits reading in full, but here are a few excerpts catching my attention:

Many ... regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime....

This status quo is absurd and unjust.  It allows the executive branch to write the law, in addition to executing it.  That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals....

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists....

Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses....

Strict liability criminal regulatory offenses are disfavored.  Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a “significant regulatory action”...

Because this EO only formally applies only to "a Federal regulation that is enforceable by a criminal penalty" and adresses only executive agencies, the US Sentencing Commission and its federal sentencing guidelines are not subject to any direct mandates via this EO.  But given that the Trump Administration calls it "absurb and unjust" to prosecute persons when underlying conduct may not evince a guilty mental state, it arguably ought also be seen as  problematic for severe sentencing enhancements to be based on astrict liability and entirely untethered from proven criminal intent.  Yet many of the most severe guideline sentencing enhancements — particularly those related to "loss" amounts, to drug type/quantity, and to other quantitative metrics — are "strict liability" enhancements, meaning that persons need not have any culpable mental state connected to specific guideline factors that can double or triple or quadruple the recommended guideline sentence.

Especially give that criminal regulatory offenses will be subject to punishment under the federal sentencing guidelines, I believe this EO ought to, at the very least, prompt the Commission to review all of its existing to make sure mens rea issues are given full concern and due respect at sentencing.  Of course, given that judge have always been required to consider "the nature and circumstances of the offense" and to "provide just punishment" under 18 U.S.C. § 3553(a), mens rea concerns have been a viable element of sentencing arguments and decision-making.  But, the same could be said for the charging discretion of federal prosecutors before this EO, and yet the Trump Administration is here demanding our justice system give more express and focused attention to any "putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."  I hope the USSC might, perhaps spurred by both the letter and the spirit of this EO, consider review and revision of its guidelines to minimize the risk of "absurd and unjust" levels of punishment based on strict liability sentencing enhancements.