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September 10, 2018

Some information and background on the debate over mens rea reform at the federal level

I mentioned in class that there is an on-going debate over proposals to revise the federal criminal code's messy approach to mens rea.  In an effort not to overload you with (distracting) information about this debate, I will be content here to spotlight one press release and one background article:

Press release (dated June 22, 2018): "Hatch, Grassley Introduce Bill to Strengthen and Clarify Intent Requirements in Federal Criminal Law":

Today, Senators Orrin Hatch (R-UT), the former Chairman of the Senate Judiciary Committee, and Chuck Grassley (R-IA), the current Chairman of the Judiciary Committee, introduced legislation to clarify and strengthen intent requirements in our federal criminal laws.  The problem of overcriminalization is complex, and it includes the lack of clear mens rea requirements in much of our criminal laws.

The Mens Rea Reform Act of 2018 would strengthen the intent requirements in our federal criminal laws. And it would make these changes in a responsible way by establishing an extended process for federal agencies and Congress, with the assistance of a National Criminal Justice Commission and input from the public, to clarify the mens rea requirements in our existing criminal laws. 

Atlantic article (dated Oct 26, 2017): "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing."

A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior.

September 10, 2018 in Class reflections, Notable real cases | Permalink


I looked up the proposal by Senator Hatch (it can be read here: https://www.congress.gov/bill/115th-congress/senate-bill/3118?q=%7B%22search%22%3A%5B%22Mens+Rea+Reform+Act+of+2018%22%5D%7D&r=1) and while upon first consideration this seems a reasonable proposal, a primary concern of mine is that the rollout of the reform may be too fast or use too many resources of federal agencies and departments not priorly equipped to reform criminal statutes. I'm curious why he chose to tackle this dilemma with a broad act of Congress, rather than beginning by introducing a narrower act that adds mens rea requirements to a previously enacted statute. This narrower starting point also has the added benefit that it may be easier to gain bipartisan support in both the House and the Senate if only a few statutes are having mens rea framework added to them. It may even gain more public support this way, and more support could be built up as the public sees the bill taking effective and functioning.

I'm also curious what changes occurred in the bill's formation so that Senator Grassley went from supporting "smaller changes to intent standards" to supporting the sweeping change that would likely follow the enactment of this bill. I agree that some reform should occur, however more specific changes than the bill provides would be a better route to go than a vague bill requiring reform and change. Senator Hatch's press release quotes Rick Jones, President of the National Association of Criminal Defense Lawyers, "Fundamental fairness requires that every criminal statute and regulation have a clearly defined intent requirement." It could be interesting to see if there would be Congressional support if a representative proposed a bill that required all future acts of Congress that criminalized something to have a mens rea requirement of some kind.

Posted by: Monica Windholtz | Sep 11, 2018 6:30:20 PM

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