Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

When the arc of justice bends relentlessly toward injustice, right and left meet. Thus, it is not surprising that after decades of federal overcriminalization, NACDL, the voice of the criminal defense bar, and The Heritage Foundation, a stalwart of conservative doctrine, have united to oppose this trend. Past collaborations between the two organizations include ongoing efforts to oppose the enactment of new crimes and to safeguard the attorney-client privilege.

Now, NACDL and The Heritage Foundation have launched a drive to get to the root of the problem, i.e., shoddy lawmaking that is systematically diminishing the criminal intent requirement – a moral anchor of the American criminal justice system. People should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know has been deemed unlawful. Yet, with each passing session, Congress produces a cascade of new criminal statutes that feature inconsistent, ill-defined and sometimes non-existent intent requirements. Lawyers learn early in their law school career that criminal laws must have a mens rea or “guilty mind” component. But lawmakers have apparently not learned that lesson.

On May 5, 2010, NACDL and Heritage published Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law.¹ The report analyzes the intent requirements in 446 non-violent and non-drug criminal offenses proposed during the 109th Congress (2005-2006).² It is the result of a painstaking process that required researchers to sift through hundreds of proposed statutes to find the criminal provisions, and then meticulously analyze the intent requirements as to each element of the crime.³  

The object was to ascertain the protective strength of the intent requirements in each bill and to assess whether any aspect of the legislative process could promote better outcomes. Researchers studied the progress of the proposed legislation through the legislative process, including Judiciary Committee markups, hearings, amendments, referral to a judiciary committee, reporting out by a committee, passage, and enactment. Intent requirements were assessed along a continuum including “None,” “Weak,” “Moderate,” and “Strong.”⁴ The findings are startling.

Of the 446 studied offenses, 255 (57 percent) were found to have inadequate intent requirements (31.8 percent had Weak intent requirements and 25.3 percent had None). When analyzed separately for each chamber, 62.1 percent of the studied offenses in the House had inadequate intent requirements, as opposed to 49.1 percent in the Senate. Most significantly, the study shows that the inadequacy of intent requirements is substantially consistent when comparing proposed offenses to enacted offenses, thus demonstrating flaws throughout the legislative process.

Another important finding is the frequency with which the House and Senate Judiciary Committees are excluded from the consideration of new criminal statutes. Even though those committees have special expertise and jurisdiction over matters of criminal law and justice, more than half of the studied offenses were not referred to either committee. It is no wonder that so many new criminal statutes lack the intent requirements that lawyers understand are essential to fundamental fairness.

Without Intent identifies five basic reforms that Congress can adopt to stem the tide of shoddy lawmaking:

• Enact default rules of interpretation to ensure that intent requirements are adequate to protect the accused against unjust conviction;
• Codify the common law rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly;
• Require Judiciary Committee oversight of every bill that includes criminal offenses or penalties;
• Provide detailed written justification for and analysis of all new federal criminalization; and
• Draft every federal criminal offense with clarity and precision.

NACDL and Heritage have pledged to continue to work together to achieve these goals. When the report was released, House Judiciary Crime Subcommittee Chair Bobby Scott (D-VA) and Ranking Member Louie Gohmert (R-TX), echoed that pledge, offering a strong endorsement of the report at a joint press conference. (See NACDL News on page 12 of this issue.) In these days of unprecedented partisanship, this is a rare and hopeful sign that this reform effort transcends the ideological divide. It is a reminder that justice is neither a Democratic nor a Republican ideal; it is an American ideal. And injustice is equally abhorrent to conservatives and liberals.

NACDL’s Board and White Collar Crime Committee have been fighting the battle against overcriminalization for several years. Now, this study of the 109th Congress contributes original research that can provide invaluable guidance to policymakers and legislators, and hopefully restore criminal intent requirements to their rightful place as a brake on unjust prosecution.

Notes

1. The report and appendix are available at www.nacdl.org/withoutintent.
2. To limit the scope of the research, which was a gargantuan undertaking because of the sheer volume of proposed criminal provisions, NACDL and The Heritage Foundation mutually agreed to exclude offenses involving guns, drugs, violence, pornography, and immigration violations.
3. The analysis is available at www.nacdl.org/withoutintent.
4. Intent requirements are categorized as “None” where prosecutors, courts, and juries need not engage in any meaningful consideration of a defendant’s mental state. Intent requirements are categorized as “Weak” when the statute language is reasonably likely to protect at least some defendants who did not intend to violate a law and did not have knowledge that their conduct was unlawful or sufficiently wrongful to provide notice of possible criminal responsibility. Intent requirements are categorized as “Moderate” when the statutory language is more likely than not to prevent a conviction if the defendant did not intend to violate a law and did not know that the conduct was unlawful or sufficiently wrongful to provide notice of possible criminal responsibility. Intent requirements are categorized as “Strong” when it is highly unlikely, absent substantial misinterpretation, to permit conviction of a person who did not intend to violate a law and did not have knowledge that the conduct was unlawful or sufficiently wrongful to provide notice of possible criminal responsibility.

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