Heritage Foundation and National Association of Criminal Defense Lawyers: More Progress Needed to Safeguard the Intent Requirement in Federal Criminal Law

Heritage Foundation and National Association of Criminal Defense Lawyers: More Progress Needed to Safeguard the Intent Requirement in Federal Criminal Law

Dec 13, 2021 2 min read

WASHINGTON–The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later. The report is co-authored by Zack Smith, Heritage legal fellow, and Nathan Pysno, director of economic crime and procedural justice at NACDL.

This new report—a study of the 114th Congress—revisits a 2010 joint report by The Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which found that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57% lacked an adequate guilty-mind requirement.

The new study finds that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate.

Ensuring an adequate mens rea provision is included in statutes and regulations that create criminal offenses is critical. The average person is likely unaware of the vast majority of these crimes and may have no effective notice whatsoever that his or her conduct may be prohibited. It is difficult to imagine how the average person could be expected to “know” the law when no one, including our lawmakers and the U.S. Department of Justice, knows how many federal crimes are actually on the books.

As explained in this new report’s foreword, co-authored by former Attorney General Edwin Meese III and Global CEO of Fair Trials and former NACDL Executive Director Norman L. Reimer:

"The findings of this new report, Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later, are encouraging, but show that further progress is needed. We hope that Representatives, Senators, their staff members, and anyone else who reads this new report take its suggestions seriously. Fostering awareness of the problem of inadequate criminal intent requirements in criminal laws is the first step toward principled reform. Taking appropriate action is the next step.”

“This joint NACDL/Heritage Foundation report upholds a fundamental principle of a just criminal legal system—not punishing people without proving criminal intent beyond a reasonable doubt. NACDL and The Heritage Foundation have collaborated, once again, to protect this fundamental principle in an unequivocal, bipartisan study,” said NACDL President Martín Antonio Sabelli. “This principle protects the innocent, holds the line against overcriminalization, and preserves and defends the Constitution.”

“We all know that certain crimes such as rape, robbery, or murder are inherently wrongful, and individuals found guilty of those crimes should be punished accordingly. But in today’s society, Congress has criminalized—or more troublingly, has allowed executive branch agencies to criminalize—many actions that are not inherently wrongful,” said Smith. “That’s why ensuring these laws contain adequate mens rea—or ‘guilty mind’—requirements is so important. Dating back to earliest days of our nation, it has been understood that generally speaking, those who did not intend to violate a law should not be held criminally accountable.”

As set forth in this new report’s conclusion:

“Once again, [The Heritage Foundation and NACDL] urge legislators to seriously consider and to adopt the recommendations made in the report, as well as those in the original report. When Congress makes new criminal laws, it should prioritize clear drafting of new criminal provisions and use standardized mens rea terminology consistently across those new statutes. Each chamber of Congress should refer statutes that create new crimes to its respective judiciary committee, where those committees should consider the appropriate mens rea, providing for defenses, and opportunities to cure in appropriate circumstances. Similarly, Congress should consider enacting default mens rea legislation. Finally, Congress should require that the number of federal crimes currently on the books be counted.”

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