Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law

By Brian W. Walsh and Tiffany M. Joslyn

About the Organizations

Foreword

Acknowledgements

Fact Sheet

Executive Summary

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Introduction

Criminal Punishment Requires Culpability and Fair Notice

The Proliferation of Criminal Offenses with Inadequate Mens Rea Requirements Undermines Federal Criminal Law

Rationale and Summary of Methodology

• Rationale for the Study of the Legislative Process
• Summary of Methodology

Mens Rea Data Analysis, Calculations, and Findings

• Mens Rea Category Totals
• A Study of Each Mens Rea Category Through Example Offenses
• The Reliance on Judiciary Committee Oversight
• Identifying the Effect of Congressional Actions on Mens Rea Requirements
• The Regulatory Criminalization Problem

Conclusions on the Legislative Process

• Mens Rea Requirements Are Inadequate at Every Step of the Legislative Process
• The Judiciary Committees Are Frequently Afforded No or Inadequate Opportunities for Oversight of Criminal Offenses
• The Proliferation of Federal Criminal Law Continues
• Poor Legislative Draftsmanship Is Commonplace
• Congress Regularly and Inappropriately Delegates Criminal Lawmaking Authority

Ending the Trend: Federal Criminal Law Reforms

• Enact Default Mens Rea Rules
• Codify the Common-Law Rule of Lenity
• Require Sequential Referral to the Judiciary Committees
• Require Reporting on All New Federal Criminalization
• Focus on Clear and Careful Draftsmanship

Methodological Appendix

The Mens Rea Analysis

• The Studied Offenses Defined
• Counting the Studied Offenses
• Offense Interpretation
• Categorizing the Offenses
• Congressional Actions
• Statistical Analysis of Possible Correlations Between Congressional Actions and Protectiveness of Mens Rea Requirements

Endnotes

Online Appendix

Offenses Appendix

• Part One: Studied Offenses Originating in the United States House of Representatives
• Part Two: Studied Offenses Originating in the United States Senate

Correlation Appendix

PRESS CONFERENCE: Sponsored by Congressmen Bobby Scott (D-VA) and Louie Gohmert (R-TX)
Heritage/NACDL Releasing Legislative Report: Congress Is Eroding Criminal Intent
May 5, 2010

EVENT: Without Intent
How Congress Is Eroding the Criminal Intent Requirement in Federal Law
May 24, 2010