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Congress Considers Bill to Reduce Federal Overcriminalization

In an effort to restore some semblance of justice to the federal government’s sprawling “criminal justice” machine, a coalition of U.S. lawmakers including liberty-minded Senator Rand Paul (R-Ky.) are pursuing reforms that would force the feds to prove suspects were willfully committing a crime. With tens of thousands of pages in new “regulations” imposed on America each year just by federal regulatory agencies — many with severe criminal penalties attached — legal experts say virtually every American professional likely commits several federal crimes each day without even realizing it. Under the newly re-introduced “Mens Rea Reform Act,” though, that would all change. The effort has drawn widespread support across the political spectrum, and especially among conservatives and liberals concerned about overcriminalization.

If and when the bill becomes law, it would require that federal prosecutors prove beyond a reasonable doubt that the defendant actually intended to commit a crime. The measure would apply to almost all federal criminal laws and regulations that do not currently include such protections — protections that were standard in Anglo-Saxon jurisprudence for centuries in English common law. Mens Rea, which means “guilty mind” in Latin, is an important legal protection that generally requires a defendant to have intended to commit a crime for the action to be prosecuted as such. It is aimed at distinguishing between negligence, for example, and actual criminal intent. With an estimated 5,000 federal statutes and close to half of a million federal regulations carrying potential criminal penalties, advocates for the Mens Rea protection say it is urgently needed.


“Rampant and unfair overcriminalization in America calls for criminal justice reform, which starts with default mens rea legislation,” said Senator Orrin Hatch (R-Utah), who sponsored the measure. “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.”

Hatch also spoke on the Senate floor about why his bill was needed, pointing to a wide range of absurd criminal offenses defined in practically innumerable federal statutes and regulations — everything from writing checks for less than $1 to allowing a pet to make a noise that frightens wildlife on federal land is a federal crime. “Individuals should not be threatened with prison time for accidentally committing a crime or for engaging in an activity they did not know was wrong,” the senator from Utah said. “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

 if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and the sword comes and takes any person from among them, he is taken away in his iniquity; but his blood I will require at the watchman’s hand.


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