Originally published at National Review by Jonathan Keim | 9/21/15
As criminal justice reform has built momentum in recent months, it has lost some of its focus on overcriminalization issues like mens rea reform and overbreadth. This afternoon Senator Orrin Hatch refocused the coalition on these issues, bringing attention to proposed legislation that would rein in the overly expansive federal criminal code by imposing a default mens rea on all federal crimes.
Here’s why this is important:
We’re a nation of laws, Mr. President. We’re supposed to be guided by the rule of law. Our criminal law—indeed, the very idea that it’s proper to brand some conduct, and some people, as criminal—is predicated on the notion that individuals know the law and are able to choose whether or not to follow it. If, as I have suggested, and as many scholars agree, we live in a country where much otherwise benign conduct has been labeled criminal, and where decent, honorable citizens can become criminals through no fault or intent of their own, then we have a real problem on our hands. Our criminal laws should be aimed at protecting our communities and keeping bad influences off our streets, not tripping up honest citizens.
On mens rea specifically:
Without adequate mens rea protections—that is, without the requirement that a person know his conduct was wrong, or unlawful—everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong. This is not only unfair; it is immoral. No government that purports to safeguard the liberty and the rights of its people should have power to lock individuals up for conduct they didn’t know was wrong. Only when a person has acted with a guilty mind is it just, is it ethical, to brand that person a criminal and deprive him of liberty.
And on the centrality of mens rea reform for overcriminalization reform:
I look forward to working with my colleagues on this important legislation and urge all of them to give it their support. Any deal on sentencing, Mr. President, and any package of criminal justice reforms, must include provisions to shore up mens rea protections. In fact, Mr. President, I question whether a sentencing reform package that does not include mens rea reform would be worth it. And I am not alone. Many members of the overcriminalization coalition—members who helped lay the key intellectual and political groundwork for the negotiations now underway—believe strongly that any criminal justice reform bill that passes this body must include mens rea reform. I agree.