Criminal Justice

Senators Want to Make Prosecutors Prove Defendants Intended to Break Laws Before Locking Them Up

In a country with so many crimes, many laws don't require proof citizens knew they were doing wrong.


Orrin Hatch
Bill Clark/CQ Roll Call/Newscom

Sen. Orrin Hatch (R-Utah) is trying again to pass criminal justice reforms that would enhance the requirement that prosecutors prove criminal intent to convict people of federal crimes.

Hatch, Sen. Mike Lee (R-Utah), Ted Cruz (R-Texas), David Perdue (R-Ga.), and Rand Paul (R-Ky.) introduced the Mens Rea Reform Act of 2017 on Monday.

Hatch included a similar bill within a package of criminal justice reforms in 2016, but it did not pass.

"Mens rea" is the legal concept that that a prosecutor must prove a defendant was willfully and knowingly engaging in criminal or harmful behavior in order to convict him or her of the crime.

Many federal laws have mens rea requirements. But many do not and the application is not uniform across the board. Hatch's bill would create a "default" mens rea requirement for federal laws that do not have one.

Here's how he describes what he's trying to accomplish in a prepared statement:

Requiring proof of criminal intent protects individuals from prison time or other criminal penalties for accidental conduct or for activities they didn't know were wrong. In recent years, Congress and federal agencies have increasingly created crimes with vague or unclear criminal intent requirements or with no criminal intent requirement at all. The Mens Rea Reform Act will help correct that problem and ensure that honest, hardworking Americans are not swept up in the criminal justice system for doing things they didn't know were against the law.

The bill has the support of the Heritage Foundation, the National Association of Criminal Defense Lawyers (NACDL), Federal Defenders of New York, the U.S. Chamber of Commerce, and the Koch Foundation. (Disclosure: David Koch sits on the Board of Trustees for the Reason Foundation, which publishes this site.)

Who could oppose such a bill? The Department of Justice under President Barack Obama's administration argued it would make it harder to prosecute white-collar crimes. Justice officials implied it would be tougher getting convictions in complicated pollution or health and public safety cases. In reality, it would make it harder for them to force plea deals, according to statements from Justice Department officials.

But wouldn't it help all those other folks in federal prison who aren't corporate overlords? Here's what representatives from Federal Defenders wrote in support of Hatch's bill:

As Federal Defenders, we are acutely aware of the need for mens rea reform. Over 80 percent of people charged with federal crimes are too poor to afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American. These are our clients, and too many of them are subject to laws that are neither fair nor consistent with traditional principles of criminal liability. This bill would help to remedy some of those failings.

Lack of consistency in applying mens rea in federal law affects drug crime cases. Federal drug trafficking laws require that prosecutors prove defendants knew and had agreed to transport controlled substances, a basic mens rea requirement. But the laws don't require proof that a defendant knew what kind of drug or how much of it he or she was trafficking, which can play a huge role in a defendant's sentence. In a case from 2015, a defendant believed he was trafficking marijuana, but it actually turned out to be methamphetamine, and he was given a 10-year mandatory minimum sentence. It didn't matter that he didn't know the crime he was committing was more severe than what he agreed to.

Caleb Kruckenberg, a white collar crime policy counsel for NACDL, has some insight into what really happens in federal prosecutions, with his background as a criminal defense attorney and a former assistant federal public defender.

"I think for a lot of people who work in criminal defense work—especially with indigent clients—we see the effect of the no mens rea requirement in drug cases every day," Kruckenberg tells Reason.

Would a default mens rea requirement actually make it harder for the Justice Department to prosecute corporate polluters? Shana O'Toole, NACDL's director of white collar crime policy, says she doesn't think Hatch's bill would necessarily make it harder. Most Justice Department prosecutions for pollution, she says, rely on the Clean Air Act or Clean Water Act. Both of these laws already have mens rea requirements.

Besides, O'Toole notes, "It shouldn't be 'easy' to prosecute anyone. It's being fair that our government's lawyers should be aiming for."

And it's also worth noting that Hatch's law would allow Congress to include specific mens rea wording to a law if they choose to. What this bill proposes is a default rule in the event Congress does not specify. Congress would also still be able to classify strict liability for the violation of a specific law if they choose to, meaning prosecutors would not have to prove the defendant intended wrongdoing. But under Hatch's bill Congress would have to spell it out formally if that's what they want.

Hatch's 2017 version of the bill was not yet available online. Reason was provided a draft version of the legislation that is similar to what Hatch offered last year. There has been some minor changes, one to more clearly explain what it means to "willfully" violate a law. Read the previous version of the bill here.

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  1. So senators want to take out of the hands of federal prosecutors the tools they need to give their resumes the padding necessary to move on to elected office.

    1. Why not? Might that not lead to less competition for their own jobs?

      1. Let’s not be silly. If a “criminal” intent isn’t clearly established at trial, appellate judges can always step in and retroactively attribute one to the perpetrator. For an excellent example of how we do this in America, see the documentation of our nation’s leading criminal “satire” case at:

  2. Mens Rea was my stage name on the burlesque circuit.

    1. More like Mensrrhea.

  3. Wait, what?
    Actual proof of intent? Madness!
    Now we will never win the war on drugs. Or anything else.
    The next thing you know, they will require convictions before confiscating assets! There is just no end to this!

  4. Interesting. Ted Cruz likes to say he’s for liberty. Nice to see him actually walking the walk.

  5. Probably just going to be a requirement that they show a reasonable level of intent. “Reasonable” will still be a matter of interpretation.

  6. What is the intent behind this law?

    1. Just Republicans looking to shield Trump from Russian investigation.

      – generic prog.

  7. Given 89 thousand or so pages in the Federal Register, this would be a fine parry to the thrust of government intrusion.

  8. Holy shit. Orrin Hatch did something good? There had to be something in it for him. He doesn’t just do stuff like that.

  9. Many federal laws have mens rea requirements. But many do not and the application is not uniform across the board. Hatch’s bill would create a “default” mens rea requirement for federal laws that do not have one.

    I’m not surprised this failed. The problem with this sort of “all or nothing” approach is that the people taking it aren’t going to think through every single law it might impact but the people opposing it will be able to find examples of laws that people think it *shouldn’t* be made harder to prosecute. Which makes it politically safer to vote against this sort of bill. A better approach might be to find specific federal crimes that don’t have mens rea requirements and amend those statutes to make it one of the elements. It may not be as “historic” as a more “sweeping comprehensive reform” but it moves the ball forward. And maybe in the process you can also repeal some outdated laws.

    1. Actually I think it’d be the other way around: that it’d be easier to get support for the general statute than for amendments to call for mens rea in particular ones?except maybe 1 or 2 really egregious ones that affected maybe 1 person in 5 yrs.

  10. too many lawyers. Reform the civil courts too so you can’t sue anyone willy nilly for “gross negligence” without repercussions. Civil courts are just an extortion racket.

  11. While I am sure there are some laws that require intent to break a law, they are almost non-existent. Mens Rea refers to the intent to commit the unlawful act, it does not require you to know that the act is unlawful. The article’s title confuses that point, although the body seems to discuss the proper standard.

  12. Well, I think ignorance of the law, or lack of intent to break the law, can be a mitigating factor, and in some cases ought to result in outright exoneration. But I’m pretty tired of the “good faith” excuse being trotted out again and again to basically guarantee impunity for serious misconduct or studidity, esp. of police gunning down innocent citizens.

  13. How will they be able to prosecute Hillary if they have to prove intent and knowledge? That’s supposedly why James Comey gave her a pass, even though the statutes she seemingly violated specifically excluded intent.

  14. Doesn’t Hatch sound like such a compassionate guy. Golly wow, have the federal charges require “intent”. That is Hillbillary’s defense isn’t it? “I didn’t intend to commit crimes”.
    Didn’t Orin Hatch swear or affirm the Oath of Office? For, if he actually did, he MUST understand that this Oath requires him to honor the Constitution as written.
    Here’s a little Civic lesson they apparently don’t teach at political hack school. The reason a person swears or affirms the Oath of Office (a CIVIL agreement or contract that is legal and binding) in order to take and hold “office” is that this Oath, requires him/her/”unsure” to abide by the Constitution as written. That means that the “enumerated powers for each branch must be honored. This also means that the first 10 Amendments must be honored. They are rules or Constitutional “laws” that tell the federal government, their employees, and contractors what they can NOT legislate, decree, or “rule” on. “these are the chains that bind them”. To violate one’s Oath is a CRIME! A civil Crime against all to whom the Oath was given. (if this were enforced, how many of the millionaires would do this shit after making such a killing off the backs of the taxpayers???)
    I’m going to speculate that 97% of the crap (legislation) that comes out of congress for the past 150 years would be found to be not Constitutional if the Oath were considered a legal and binding contract.

  15. “Ignorance of the law is no excuse!”
    There goes another shibboleth.

  16. “”Mens rea” is the legal concept that that a prosecutor must prove a defendant was willfully and knowingly engaging in criminal or harmful behavior in order to convict him or her of the crime.”

    Wrong. Mens rea refers to a “guilty mind”, and the “guilty mind” generally must equate with the actus reus (“guilty act”) for the crime charged. So, for example, you do not need to establish “knowingly engaging in criminal or harmful behavior” to convict someone of negligent vehicular homicide.

    Any legislative body always has the authority to include a mens rea element; in fact, every crime must have an actus reus and a corresponding mens rea. Sometimes a crime has a “strict liability” mens rea: it is enough that you did the crime. For example, for running a red light the mens rea for a traffic citation is simply that you ran the light, regardless of whether you did so accidentally or on purpose. If by running the red light you struck and killed a pedestrian, prosecution for the death would require a mens rea appropriate to vehicular homicide.

  17. And we’ll call it: The Hillary Clinton Amendment. (Because the patriarchy and she needs a legacy beyond being a terrible public servant for 30 years)

    Sad thing is, had she ditched Bill after Monica, she’d probably be president….

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