The Heritage Foundation

Special Report #77 on Legal Issues

May 5, 2010

May 5, 2010 | Special Report on Legal Issues

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

Without Intent Cover Artwork

About the Organizations



Fact Sheet

Executive Summary


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


Online Appendix

Offenses Appendix

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

About the Author

Brian W. Walsh Senior Legal Research Fellow
Edwin Meese III Center for Legal and Judicial Studies