With the passage last year of the First Step Act,REF legislators and policymakers who are passionate about criminal justice reform have been looking for the next issue around which to rally. For years, scholars at The Heritage Foundation,REF the National Association of Criminal Defense Lawyers,REF and law schools around the countryREF have hoisted mens rea reform as the rallying banner.

Mens rea—Latin for “guilty mind”—refers to the knowledge or intent that a criminal defendant must possess to be guilty of a crime. Historically, two components made up a crime: a bad action (“actus reus”) and knowledge that the act was wrong (“mens rea”).REF Intent mattered because the criminal law did not punish honest mistakes or harm caused by accident or negligence. It punished only behavior that was morally blameworthy.

That is no longer the case. Increasingly, the criminal law punishes accidents and criminalizes behavior without any regard to the defendant’s intent.REF Mens rea reformers are concerned about this trend and want to ensure that the state does not incarcerate “people who engage in conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law.”REF

Just a few years ago, in 2013, a bipartisan group of members of the U.S. House of Representatives formed the Over-Criminalization Task Force and agreed on the need for mens rea reform.REF Ranking Member Robert “Bobby” Scott (D–VA) summed up the Democratic Members’ views:

Federal courts have consistently criticized Congress for imprecise drafting of intent requirements for criminal offenses…. It is clear that the House and Senate need to do better. We can do so by legislating more carefully and articulately regarding mens rea requirements, in order to protect against unintended and unjust conviction. We can also do [so] by ensuring adequate oversight and default rules when we fail to do so.REF

Unfortunately, despite these and other efforts,REF Congress has not succeeded in passing mens rea reform legislation.

Additionally, it is not clear how much bipartisan support mens rea reform still enjoys. To some on the left, notably former President Barack Obama, mens rea reform “could undermine public safety and harm progressive goals.”REF That argument, however, misunderstands the role mens rea plays in our justice system. Mens rea protects everyone equally from criminal prosecution for honest mistakes or accidents. To call mens rea reform an obstacle to progressive goals reveals a willingness to sacrifice individuals’ liberty—sending them to prison and burdening them with all the consequences that a criminal conviction imposes—in pursuit of policy preferences. That is not an acceptable trade-off, but President Obama’s opinions on this issue are thankfully not ubiquitous on the left.REF Mens rea reform remains good policy, and policymakers should make it a high priority.

Congress, however, cannot be counted on to act on any mens rea proposals while it is bogged down in impeachment proceedings. That does not mean, however, that mens rea reform is a nonstarter. The executive branch has several options that it can consider to advance this important objective on its own.

Executive Branch Actions

The first three actions that the executive branch can take to advance mens rea reform arise out of what is known as “prosecutorial discretion.” That term refers to the charging discretion that the President and his lieutenants at the U.S. Department of Justice (DOJ) possess. The president has the responsibility to “take Care that the Laws be faithfully executed,”REF but prosecutors have the authority to decline to charge someone, offer him or her a plea bargain, or seek a death sentence in any particular case.REF The purpose of that discretion is “to provide individualized justice.”REF Prosecutorial discretion is broad, and the Supreme Court has imposed few limits on it aside from prohibiting its exercise “to violate constitutionally prescribed guaranties of equality or liberty.”REF

Although prosecutorial discretion is broad, it should be employed only in individual cases or in a small set of cases.REF It is “designed to help achieve statutory objectives…not to frustrate statutory objectives or to effectuate a change in policy.”REF Fundamentally, it is not “an invitation to violate or ignore the law.”REF

With these guidelines in mind, the executive branch can use its prosecutorial discretion to advance the cause of mens rea reform in three ways, two of which we approve and one of which we do not approve. The fourth option derives not from prosecutorial discretion, but from the President’s authority over executive branch agencies.

1. As a matter of policy and absent extraordinary circumstances, prosecutors should decline to prosecute cases brought under statutes with inadequate mens rea elements unless there is clear evidence of bad intent.

   The first option is for the Department of Justice to exercise its prosecutorial discretion to decline to prosecute crimes in any case where the Mens Rea Reform Act of 2018 would have enhanced the existing mens rea requirements.REF That bill would have added a default mens rea element of willfulness to any criminal offense that otherwise lacked a mens rea element.REF

   The Attorney General could issue a policy directive to the effect that absent extraordinary circumstances, prosecutors should not file criminal charges against anyone unless there is clear evidence of “willfulness,” which would require a government prosecutor to prove that the defendant intended to break a known law or otherwise knew he was doing something wrong.REF

2. Require prior approval of a high-ranking DOJ official for any prosecution under a strict-liability statute.

   The second option is to require approval from a U.S. Attorney or senior DOJ official before any defendant can be prosecuted for a strict-liability crime. This approach would ensure that someone in a position of authority pauses before charges are filed to consider whether a strict-liability prosecution is in the interests of individualized justice.

   The Department of Justice already uses a similar approval process for other crimes. For example:

   • A prosecutor must obtain the approval of the Assistant Attorney General for the Criminal Division before initiating a case under the Racketeer Influenced and Corrupt Organizations Act.REF The same goes for prosecutions of the crime of fleeing to avoid prosecution.REF

   • Likewise, the Assistant Attorney General for the National Security Division must approve all economic espionage prosecutions.REF

   • Additionally, no prosecution of crimes against “Federally Protected Activities”REF (such as voting, serving on a federal jury, or receiving federal financial assistance) may commence until the Attorney General or Deputy Attorney General certifies that “in his or her judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice.”REF

   • A similar approval requirement once existed for prosecutions of trade secret theft but has since expired.REF

   The DOJ’s Criminal Resource Manual includes dozens more of these prior-approval requirements, so adding another for strict-liability prosecutions would accord with established practices.

3. Forbid prosecutions under statutes that lack any mens rea element.

   The third option—which we do not support—is simpler but more dramatic than the first two: Simply refuse to prosecute crimes under any statute that lacks an adequate mens rea element. That policy would be analogous to President Obama’s Deferred Action for Childhood Arrivals (DACA) policy because, like DACA, it amounts to a broad refusal to enforce a law.REF Adopting the rationale behind that policy, the executive branch could conclude that prosecuting people for violations of statutes that lack an adequate (or any) mens rea element would be unjust and ought to be a lower priority than prosecuting individuals who violate statutes with an adequate mens rea element and engage in intentional wrongdoing or conduct they know to be dangerous.

   Although this option accords with the DACA precedent, we oppose it for the same reasons we opposed that policy.REF It would be an improper exercise of prosecutorial discretion that violates separation-of-powers principles.

4. Order executive branch agencies to identify all agency regulations that could serve as the basis for a criminal charge and list their mens rea element(s).

   The fourth option comes not from the executive’s prosecutorial discretion but from the President’s authority over the executive branch agencies that he oversees. Pursuant to that authority, the President can issue an executive order requiring all executive branch agencies that have criminally enforced regulations to identify those regulations and describe their mens rea elements. The Department of Justice should then review them to determine whether those regulations adequately protect potential defendants from unjust prosecutions.

   The task would be daunting—experts estimate that there are 300,000 or more regulatory crimesREF—but not without precedent.

   • North Carolina’s legislature recently ordered the state’s agencies to compile and report on all of their criminal regulations.REF The legislature will then review the regulations and determine whether any of them should have their criminal penalties removed.REF

   • In 2014, Minnesota’s legislature—at the request of its Democratic Governor, Mark Dayton, reviewed and repealed 1,175 obsolete regulations and crimes.REF

   • The Texas legislature maintains a Sunset Advisory Commission that assesses “the continuing need for a state agency or program to exist.”REF As part of that ongoing assessment, the legislature reviews and, if appropriate, eliminates certain regulations.REF

   In addition, easily adaptable model language for this executive order already exists. The Mens Rea Reform Act of 2018, which was introduced by then-Senator Orrin Hatch (R–UT), included language that would have required federal agencies to specify a mens rea standard for all regulations that carry criminal penalties and would have automatically invalidated any regulations that lacked a mens rea standard after six years, with some exceptions.REF

   Regardless of whether it is Congress or the President that decides to take action on mens rea reform, rounding up and taking inventory of the vast herd of regulatory crimes would be an important first step.

Conclusion

Mens rea reform remains a high priority for many criminal-justice reformers who are concerned about the expansion and misuse of the criminal laws. Unfortunately, despite bipartisan support, Congress has not acted and, at least for the foreseeable future, is not likely to act. Thankfully, however, the cause is not dead in the water; the executive branch has various options that it can and should consider to advance mens rea reform efforts.

GianCarlo Canaparo is a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. Paul J. Larkin, Jr., is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center. John G. Malcolm is Vice President for the Institute for Constitutional Government, Director of the Meese Center, and Ed Gilbertson and Sherry Lundberg Gilbertson Senior Legal Fellow in the Meese Center.