Criminal Laws Should Connect Guilt to a Defendant’s Intent, House Panel Hears
By Rebecca Cohen | July 19, 2013 3:00 pm

Americans are going to prison for crimes they did not mean to commit because federal criminal statutes often fail to consider the defendant’s intent, witnesses told lawmakers today at a hearing before the House Judiciary Committee’s Over-Criminalization Task Force.

The federal criminal code is expanding quickly, and many of the new laws do not include a mens rea requirement, a provision that requires the defendant to have a “guilty mind,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. The lack of mens rea leads to cases such as that of Robert Unser, a New Mexico man who was fined for operating a motor vehicle in a national forest after he became lost on his snowmobile during a blizzard.

“Without a clear intent requirement, the individual will not realize when they’re crossing a line,” Reimer said. “That’s not fair, [and] that’s not effective.”

Although the hearing didn’t mention it, the business community is also interested in seeing more criminal laws  bar a guilty verdict unless a crime is found to have been committed willfully and with intention.

That’s because under some statutes, a corporation can be convicted of a crime even when its policies and training were intended to prevent criminal conduct. Under the Foreign Corrupt Practices Act, for example, a corporation can be held criminally liable for employees who act on their own to pay bribes for business — even if senior corporate leadership was unaware of the conduct and didn’t condone it.

Reimer and John Baker, a visiting professor at Georgetown Law School and a former consultant to the Justice Department, recommended that Congress enact a law that will automatically include a mens rea standard in federal criminal statutes.

“I know that Congress does not and nobody wants to countenance the notion that ignorance of the law is a defense, but in order to maintain that it is incumbent on Congress to ensure that there is a mens rea,” Baker said.

Task force members on both sides of the aisle appeared receptive to the witnesses’ recommendations. Rep. James Sensenbrenner (R-Wis.), who has introduced legislation to narrow the scope of the federal criminal code, called the lack of a mens rea standard “unacceptable.” And Rep. John Conyers (D-Mich.), the ranking Democrat on the Judiciary Committee, said he agrees that the lack of such a provision presents a risk that innocent individuals will be punished.

“Here in Congress we’ve increasingly strayed from basic principles,” Conyers said. “Federal law is no longer limited to crimes that are readily recognizable.”

Rep. Jerrold Nadler (D-N.Y.) asked whether Congress should also try to address the cost of defense in a federal criminal case, which can add up to tens of millions of dollars, leading many defendants to accept plea deals. Reimer responded enthusiastically.

“We have created a situation in this country where prosecutors are holding all of the cards, all of the discretion,” Reimer said.

Created in June, the bipartisan task force is charged with reviewing the entirety of the estimated 4,500 federal crimes in the U.S. code.

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