Heritage Scholars Help Shape Criminal Justice Reforms


Heritage Scholars Help Shape Criminal Justice Reforms

February 2nd, 2021

The Trump administration recently issued an executive order attempting mens rea reform. The order has the potential to protect Americans against unjust prosecution.

In the final days of his administration, President Donald Trump issued an executive order focused on reforming mens rea policy. The move was widely praised by Heritage scholars, who have argued for years that reforming the messy and complicated system was long overdue.  

In testimony delivered to the Senate Judiciary Committee, Heritage’s Ronald Reagan Distinguished Fellow Emeritus Ed Meese explained mens rea and why it's crucial to the American concept of justice. 

“For an act to be a crime, the law has traditionally required both that the act cause (or threaten) some kind of harm and that the individual who committed the act do so with malicious intent,” Meese said. “The requirement of a guilty mind, also called mens rea, helps to separate conduct that may be harmful but that is not morally culpable from conduct truly deserving of criminal penalties.” 

Meese added, “[C]riminal intent requirements protect individuals who accidentally commit wrongful acts or who act without knowledge that what they are doing is wrong. A person who trips while walking down the sidewalk and knocks over another person does not commit assault, because the person did not intend to harm the other individual.” 

Heritage experts have made the case that Americans should not be sent to prison if they violate the law accidentally. Civil or administrative penalties or tort remedies would be more appropriate in such cases. 

In a report from January 2020, Heritage legal scholars John Malcolm, GianCarlo Canaparo, and Paul Larkin Jr. recommended four ways the executive branch could effectively reform mens rea policy without Congress.  

The executive order issued by the Trump administration takes several elements from those earlier recommendations by:  

  1. Requiring executive agencies to be specific about what conduct is prohibited in a crime and to state the applicable mens rea standard.  

  1. Ensuring that offenses with no mens rea standard are “generally disfavored,” and that administrative and civil remedies should be pursued rather than criminal prosecution “where appropriate.” 

  1. Requiring agencies “submit a brief justification for the use of a strict liability standard as well as a source of legal authority for the imposition of such a standard” to the administrator of the Office of Information and Regulatory Affairs when publishing a notice of proposed rulemaking or final rule in the Federal Register.  

  1. Directing prosecutors who pursue regulatory crimes to focus on those people who “know what is prohibited or required by the regulation and choose not to comply” instead of those who are unaware. 

“This executive order is a great first step towards mens rea reform,” said John Malcolm, vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies. “The order could potentially protect thousands of American in the future from unjust prosecutions for innocent mistakes. However, it is now up to Congress to take permanent steps to rein in the government’s tendency to criminalize everything.”