• Ayah Innab

Mens Rea to No “Rea”—How Congress is Slowly Detaching the Foundational Intent Requirement from Crimi


In 2005 and 2006 the National Association of Criminal Defense Lawyers (NACDL) and the Heritage Foundation reviewed the federal legislative process for all studied non-violent criminal offenses introduced in the 109th congress. The NACDL and Heritage Foundation found that over 57 percent of the offenses introduced and over 64 percent of the offenses enacted into law contained “inadequate” mens rea requirements making it more likely for the innocent to be convicted of a crime. Additionally, Congress is continuously enacting new non-violent crimes, alleged “crimes” that may be considered as everyday acts. The studies conducted by the NACDL and Heritage foundation do not include violent crimes such as trafficking of drugs or pornography, firearm crimes, immigration violations, or intentional violence. In their report, the NACDL and Heritage Foundation stress the importance of keeping the cornerstone of criminal law, having a “guilty mind” to show a crime has been committed. Removing the mens rea element to many crimes changes it to more of strict liability issues, making anyone culpable even when it was a genuine mistake.The NACDL and Heritage foundation propose five solutions, in combination, that will help alleviate the rapid removal of the mens rea requirement from newly enacted crimes. First, “to enact default rules of interpretation to ensure that mens rea requirements are adequate to protect against unjust conviction.”The proposed default rule would be enacted through congress as statutory law and will allow some leniency for federal courts to include mens rea as an element of the crime on a case by case basis.

The second solution calls for codification of the common law rule of lenity. By codifying this common law rule, the courts will be able apply the law justly when the legislative intent or statute is unclear. The third proposition requests “judicial committee oversight of every bill that included criminal offenses or penalties. Although this may slow down the enactment of criminal law-oriented bills, the calling for oversight will allow a committee more adept to handling such matters inject their perspective and adjust bills accordingly. Next the NACDL and Heritage foundation propose a new requirement for “detailed written justification for and analysis of all new federal criminalization.” By implementing this requirement, Congress must provide the authority they are relying on to enact such bills, why they wish to enact them based on that authority and their specific intent to how the proposed law should be applied. Lastly, a proposition that most institutions and legislative bodies can agree with, “draft every criminal offense with clarity and precision.” The NACDL and Heritage Foundation wants Congress to effectively express the intent and crime of the proposed criminal bill so that its application cannot be skewed. Since the review and findings of these enacted bills occurred over the course of years most criminal attorneys and law makers are not aware of the growing concern for the diminishing mens rea requirement. However, the proposed solutions allow for simple and clear steps to mitigate any negative consequences that may arise from these changes.


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