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Senator Hatch’s Bill Protects Americans from Bad Lawmaking

| October 19, 2017

Senator Orrin Hatch has once again shown to be a true leader for criminal justice reform. The Mens Rea Reform Act is a seemingly obvious piece of legislation. However, it may actually be difficult to pass, thanks to the gridlock and partisanship in Washington.

Criminal intent is one part of the elementary calculation at the heart of criminal law. For an activity to become a crime, there must be an actus reus or “bad act” with mens rea or “criminal intent.” Without both of those elements, there is no crime. Consider this: If you’re standing in a subway car and the car suddenly screeches to a halt, causing you to knock down the man next to you, certainly you’ve committed a “bad act,” but you had no intention of causing harm. Now look at a similar, yet different scenario:  If you want to push over the man standing next to you on the crowded subway car, it isn’t a crime unless you actually do it.

But what if there was a law that said, simply, “No one shall cause another person to fall while standing on a subway car.” With a definition so broad, your lost grip would result in a criminal charge. And for an overzealous prosecutor, even the driver would be culpable.

Though no such law exists (to our knowledge at least) this is not a wholly outrageous construction. Due to poor legislating, some criminal laws are written without considering the level of intent that should be required. (Nor do they consider if the activity should be criminal at all, but that’s another issue for another day).

Senator Hatch’s bill would cure that problem by assigning a default level of intent where one is currently missing—unless that omission was intentional and created a strict liability offense, a rare instance where society has determined that intent is unnecessary. But for those mishaps and mistakes, “willfully” will be read into the text, as defined in Hatch’s bill. The bill also solves another issue regarding elements of the crime—the intent term in the statute (when there is one) should apply to all elements unless indicated otherwise.

The principles of Hatch’s bill has broad support, ranging from the Heritage Foundation to National Association of Criminal Defense Lawyers to the Federalist Society to the Federal Defenders. Yet, Hatch’s similar legislation in the last Congress was strongly opposed by the Left. Why? Politics.

Rather than working towards a more equitable system for all, many on the Left have thrown out considerations for public safety and rule of law for the sake of lowering the incarceration rate for its own sake. But even then, that is selective. For many hard-Left advocates and their allies in Congress, it pays political dividends to badmouth “corporate crime” and “polluters” who the Left claims would be the ones who gain the most from this change in law.

That’s simply preposterous. Nothing in the Mens Rea Reform Act specifies that the application of a default standards applies only to white collar or environmental crime.

Unlike the Left, the legislation does not discriminate based on political aims.

This legislation ensures a basic tenet of criminal law, and protects all Americans from facing criminal penalties because Congress or regulators were hasty in writing laws.

It is difficult, if not impossible, to reform a system in a pay to lessen unnecessarily long sentences and improve outcomes of the incarcerated if that system does not ensure that citizens are not improperly convicted of crimes in the first place.

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