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Grassley, Hatch Op-Ed: Mens Rea Reform and the Criminal Justice Reform Constellation

Mens rea reform and the criminal justice reform constellation
Washington Examiner | July 19, 2018
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 count.
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.