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As Congress Deliberates Justice Reforms, Mens Rea Requirements Deserve Consideration

| September 2, 2015

In a new memorandum published yesterday over at the Heritage Foundation, legal scholar John Malcolm addressed what he characterized as a “pressing need” for mens rea reform at the federal level:

“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. While sentencing reform addresses how long people should serve once convicted, mens rea reform addresses those who never should have been convicted in the first place: people who engaged in conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law.

In the history of criminal law, for an action to be considered a crime, two elements are generally required: first, a bad act (actus reus), and second, an intention on the part of the actor to commit it—called mens rea, Latin for a “guilty mind.”

Malcolm notes that while there has been significant discussion on Capitol Hill for the need to reform the federal criminal justice system—and several pieces of legislation written seeking to accomplish just that—conspicuously absent so far are any provisions concerning mens rea requirements for those sections of the criminal code which currently lack them.

There may have been a time in the past when a lack of mens rea requirements weren’t particularly onerous. After all, the Constitution itself lists only three criminal offenses directly, and the U.S. Code in the early years of America’s existence wasn’t so voluminous as to prevent an average citizen from knowing exactly what actions were prohibited under the law.

However, and with full apologies to Bob Dylan: The times, they are a changin’.

Today, as Malcom points out, “nearly 5,000 federal criminal statutes are scattered throughout the 51 titles of the U.S. Code,” and this is to say nothing of the 300,000 regulations contained in the Federal Register which also carry criminal penalties. As this author has pointed out before, these regulations are just the ones we know about, as the folks responsible for the rather daunting task of counting them all eventually just stop counting.

With such an incredible expansion of statutes that carry criminal penalties, it can no longer be presumed that an average person would be intimately familiar with the manifold—and seemingly innocuous—acts which are, in fact, illegal under federal law. Providing for mens rea requirements in those situations would reinstate the notion “that a crime ought to involve a purposeful culpable intent,” and protect citizens from running afoul of laws they otherwise had no knowledge of violating.


MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

His work for the Foundation has focused primarily on criminal justice reform topics, particularly civil forfeiture, prison reform and justice reinvestment, mens rea reform, occupational licensing, and various law enforcement and privacy issues. He’s also written about federal corporate subsidies, school choice, and gun rights.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. At EWU, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

His writing has appeared in National Review, The Hill, Townhall, Washington Examiner, Dallas Morning News, El Paso Times, Trib Talk, RedState, Ricochet, and Breitbart Texas.