Mens rea reform and the criminal justice reform
By Sens. Chuck Grassley
and Orrin Hatch
A growing chorus of voices from
across the country and political spectrum are calling out for reforms to our
nation’s criminal justice system, and rightfully so. Our criminal justice
system should be tough but fair. Criminal behavior should be punished, but the
punishment should fit the crime. And those we send to prison should be afforded
opportunities to participate in programs that prepare them to rejoin society
when they complete their sentences.
As Congress works on bills to
improve fairness in sentencing and bolster programs to better prepare inmates
for life after prison, we should not ignore the root problem of
overcriminalization. There are more than 4,500 criminal laws on the books and
more regulatory crimes than the Congressional Research Service was able to
And when many of these crimes
are drafted without clear criminal intent requirements, it becomes increasingly
easy for unsuspecting Americans to be sent to jail for conduct they had no idea
was against the law.
In our judicial system, being
guilty of an offense usually requires that offenders have some level of intent
or awareness that their actions are unlawful. That level of awareness, or mens
rea (Latin for “guilty mind”), varies by offense and can mean the difference
between a simple misunderstanding or accident and a long prison sentence. Too
often, laws and regulations created by an ever-expanding federal government
fail to clearly outline the level of intent that makes conduct criminal,
leaving people vulnerable to prosecution for actions that they didn’t intend to
be unlawful. And if the law is unclear, courts are left trying to fill in the
gaps, which can result in the inconsistent application of the law and
uncertainty about what the law is.
Mens rea reform, in addition to
sentencing and prison reform, is an essential part of the criminal justice
reform constellation. We can do only so much to improve fairness in our
nation’s criminal justice system if we continue to allow individuals to be sent
to prison for conduct they did not know was unlawful, even when Congress has
not specified that their crimes should be strict liability offenses.
Fairness and justice demand that
we clarify our criminal laws. Statutes and regulations that impose criminal
penalties should be clearly written so they prevent and punish criminal conduct
even as they the safeguard the liberty of the innocent.
That’s why it is important that
Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve
introduced, to improve clarity in existing criminal laws and regulations and encourage
greater care when crafting future ones.
Our bill recognizes that the
mens rea standard that works for one crime might not be appropriate for
another. It improves on past proposals to impose a one-size-fits-all mens rea
standard to all laws and regulations that lack such clarity. Instead, it
empowers Congress and federal agencies to fill in the gaps with the appropriate
level of intent required to constitute a crime. The bill calls on the federal
government to identify the criminal statutes and regulations that lack a mens
rea requirement. This will allow Congress to clarify the mens rea standard in
criminal statutes through the legislative process. The bill then directs
federal agencies to put in place a clear mens rea standard for all regulatory crimes
through a transparent process that invites public input on what the appropriate
mens rea standard should be. Under our bill, agencies have six years to issue
new rules to clarify the required level of intent. If the agencies don’t offer
this clarification, they won’t be able to enforce the regulation.
Our criminal laws should be
clear so they deter and punish the conduct and intent our elected
representatives determine sanctionable. Our bill will begin the work of
clarifying the criminal law already on the books and will encourage Congress
and federal agencies to be more careful when creating criminal penalties going
forward. Congress should take the lead in creating criminal law, not agencies
who aren't directly answerable to the public, but that’s a reform for another
day. In the meantime, our bill will help ensure that our criminal justice
system targets criminals and is not a trap for the unwary or the unlucky. By
clarifying existing law and regulations, the Mens Rea Reform Act will ensure
that our criminal laws punish the guilty and protect the innocent.
We firmly believe that mens rea
reform is an important piece of the broader criminal justice reform landscape.
Together with the bipartisan Sentencing Reform and Corrections Act, which we
both support, the Mens Rea Reform Act will improve fairness and clarity in our
criminal justice system.
Sen. Chuck Grassley, a
Republican, is the senior senator from Iowa and current chairman of the Senate
Judiciary Committee. Sen. Orrin Hatch, a Republican, is the senior senator from
Utah and a previous chairman of the Senate Judiciary Committee.