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Washington, D.C.—  Today, Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, spoke on the Senate floor about the need for mens rea reform to address the issue of overcriminalization in America. Senator Hatch described his bill, the Mens Rea Reform Act of 2017, as a solution that would set a default intent standard for all criminal laws and regulations to decrease the amount of Americans being prosecuted for activities they did not know were against the law.

[Video via YouTube] 

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong.  If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense. 

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior.  As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

The full speech, as prepared for delivery, is below:

Now Mr. President, with the time I have remaining, I wish to address an issue that remains critically important—overcriminalization and the need to reform criminal intent requirements in our federal criminal code.  

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes.

Mens rea is a Latin phrase meaning guilty mind.  One of the time-honored, fundamental features of our criminal law is that for a person to be found guilty of a crime, he or she must have committed the act with criminal intent.  In the English common law, this principle was summarized in the idea that the act is not culpable unless the mind is guilty. Mens rea requirements protect individuals who commit an illegal act without knowing that their action was wrong or unlawful.

To give an example, a person who mistakenly retrieves the wrong coat from a coat room does not become a thief merely because he took something that wasn’t his. Only if he knows the coat belongs to someone else does he commit a criminal act.

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements—and some contain no mens rea requirement at all.  This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code.  Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.”  Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions.  But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.  

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. 

For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar?  Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison.  This is not only ridiculous; it’s immoral.  The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment. 

To address this issue, I reintroduced the Mens Rea Reform Act of 2017. Today, I wish to express my sincere appreciation to the Heritage Foundation and the Federalist Society for highlighting the need for mens rea reform and for supporting my efforts to protect innocent people.  Likewise, I wish to thank Senators Rand Paul, Ted Cruz, Mike Lee, and David Perdue for joining me as cosponsors. 

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement.  Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful.  Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few.

Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses. 

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong.  If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense. 

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior.  As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.