News Release

Mens Rea Matters: Bipartisan Move in the House to Codify Criminal Intent Requirement

Washington, DC (Nov. 17, 2015) – Bipartisan leadership from the House Judiciary Committee last night introduced important legislation to address the erosion in the criminal intent, or mens rea, requirement in federal criminal law. Authored by House Crime Subcommittee Chairman Rep. Jim Sensenbrenner (R-WI) and joined by Judiciary Committee Chairman Rep. Bob Goodlatte (R-VA), Judiciary Committee Ranking Member Rep. John Conyers (D-MI), Crime Subcommittee Ranking Member Rep. Sheila Jackson Lee (D-TX), and others, the mens rea reform set forth in the Criminal Code Improvement Act of 2015, one of a number of pieces of criminal justice legislation being introduced in Congress, represents a very important step forward by leaders from both political parties to address a matter that has been the source of significant injustice and unfairness in the American criminal justice system. NACDL applauds the bold and significant, bipartisan leadership on this important issue.

For many years, there has been a drift away from the core requirement that the government prove some sort of criminal intent to commit the bad, illegal act before it can take away someone's liberty. And it has been accompanied by a dramatic rise in the number of federal criminal statutes and criminal regulations. The result is that people who had no intention, no knowledge even, that they were committing a crime, are being prosecuted and imprisoned unjustly. Mens rea reform was a central theme of the discussions and testimony to the bipartisan 2013-14 House Overcriminalization Task Force, before which NACDL testified on numerous occasions.

Among other important provisions, this legislation sets forth a default criminal intent requirement aimed at assuring that all federal criminal laws be read to statutorily include the centuries-old principle that in addition to the bad act, one guilty of a crime must also have had criminal intent, or mens rea. Subchapter 11 provides: "If no state of mind is required by law for a Federal criminal offense—(1) the state of mind the Government must prove is knowing; and (2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful."  

In a speech delivered last week in Washington. D.C., Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers (NACDL), explained, "Intent requirements are the moral anchor of our criminal law….It is critical – especially for the little guy who cannot afford cadres of high priced lawyers to analyze every statute and regulation – that we produce meaningful reform that will ensure that every criminal statute has a precisely defined intent requirement."  

In its pursuit of a more fair and just criminal justice system, NACDL has long been focused on mens rea reform. Indeed, at a May 2010 event on Capitol Hill with leaders from both parties speaking, NACDL and The Heritage Foundation released a groundbreaking study documenting the erosion of the intent requirement in federal criminal law, Without Intent, and urging reforms of the type set forth in the legislation introduced today. NACDL has been working steadfastly on these issues in the years since, and will continue to lead the way for mens rea reform on the state level as well.

Other positive reform bills were introduced, including The Regulatory Reporting Act of 2015, sponsored by Congresswoman Mimi Walters (R-Calif.), which requires every federal agency to submit a report to Congress listing each rule of that agency that, if violated, may be punishable by criminal penalties, along with other pertinent information about the rule; The Clean Up the Code Act of 2015, authored by Congressman Steve Chabot (R-Ohio), which eliminates several underutilized and inappropriate federal statutes that criminalize such conduct as the unauthorized use of the 4-H emblem or the interstate transportation of dentures; and The Fix the Footnotes Act of 2015, sponsored by Congressman Ken Buck (R-Colo.), which corrects certain legislative footnotes to address errors made by Congress in drafting certain laws.

For more information about NACDL's extensive work in this area, please visit www.nacdl.org/withoutintent and www.nacdl.org/overcrim.

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Contacts

Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.