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.