The conservative approach to criminal justice:
fighting crime, supporting victims, and protecting taxpayers.

Signatory Jim Petro: Confusion About Criminal Intent Standards Shouldn’t Imperil Needed Reform

| February 10, 2016

In a new column published yesterday over at The Hill, former Ohio Attorney General and Right on Crime signatory Jim Petro highlights some of the dynamics of Congressional legislation currently under consideration to address default mens rea (criminal intent) provisions, an important bulwark against overcriminalization under federal law:

“Last Wednesday, the Senate Judiciary Committee conducted a hearing on “The Adequacy of Criminal Intent Standards in Federal Prosecutions.” The hearing was essentially a mark-up of sorts for S. 2298, also known as the Mens Rea Reform Act of 2015.


The bill, and a similar House bill would provide for a default criminal intent standard for Federal criminal offenses that are currently silent on what level of a guilty state of mind is necessary to convict a defendant of a crime.


The House bill passed out of the Judiciary Committee last November. However, after a hearing filled with doomsday attacks from the left and representatives of the Department of Justice, it appears that criminal intent reform will face a tougher battle in the Senate.”

As Petro explains, mens rea—Latin for a “guilty mind”—is a centuries-old common law tradition holding that, for an individual to be considered guilty of a crime, they had to have intended to commit one. Unfortunately, as the footprint of federal criminal law has expanded in recent decades—to say nothing of its regulatory scope, which is mostly promulgated by federal agencies without explicit approval from Congress—many such laws and regulations currently lack adequate criminal intent provisions, despite, as Petro says, a legal presumption in our system favoring such requirements.

Objections have surfaced over the effect of the proposed bill, and in response, Sen. Orrin Hatch, author of the Senate legislation, has invited constructive feedback to improve the bill, but has so far been met by intransigence on the part of fellow committee members—some of whom variously view this legislation as a “poison pill” to larger justice reforms, or as being advantageous to corporate malefactors—and a slight of hand from the Justice Department.

(With regards to the latter, a DOJ spokesman, when asked what reform they would be amenable to, offered that a statute-by-statute appraisal could target specific questionable intent requirements. However, as Petro states, the sheer size of the relevant areas of federal criminal and regulatory law—something to which the Justice Department is surely aware—makes this a very tall order. To date, no one knows for sure the exact number of federal crimes.)

Petro concludes by explaining that proponents of men rea reform ought not to allow “attacks designed to muddy the water and create confusion about what is at stake,” and that a country whose legal tradition has long required a culpable mental state before convicting someone of a crime should continue to do so.


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.