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February 01, 2016

ABA cites erosion of criminal intent element but urges careful steps in enacting mens rea legislation

The ABA told the Senate Judiciary Committee last month that the erosion of the criminal intent (mens rea) element in federal criminal laws is a significant problem and directly affects a core principle of the American system of justice – that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful.

Stephen A. Saltzburg, who serves on the ABA Criminal Justice Section Council and is a past chair of the section, appeared Jan. 20 during a hearing examining whether mens rea provisions should  be part of comprehensive bipartisan sentencing reform legislation under consideration in both the Senate and House.

The Senate Judiciary Committee approved S. 2123, the Sentencing Reform and Corrections Act, in October, and the House Judiciary Committee approved H.R. 3713, the Sentencing Reform Act, in November. Neither comprehensive bill includes mens rea provisions, but the House committee also approved H.R. 4002, the Criminal Code Improvement Act sponsored by Rep. James Sensenbrenner (R-Wis.) that includes a default mens rea standard for federal criminal provisions that are silent as to any required criminal intent element. A Senate mens rea bill, S. 2298, was introduced by Sen. Orrin G. Hatch (R-Utah).

Saltzburg expressed concerns shared by many organizations over the proliferation of criminal offenses at all levels. He stated that the ABA believes Congress should strengthen the criminal intent requirements and enact a provision that would operate going forward to require that new criminal statutes and regulations include provisions that indicate the criminal intent requirement for every offense or, if silent, be subject to a general default provision that would require a given standard of such intent for conviction.

He added, however, that the ABA is concerned about applying a new mens rea requirement to previously enacted laws since no one can point to any source that includes all specific federal criminal laws and therefore no one knows the impact that a new default intent requirement would have on existing law. Because of this, Saltzburg said the results of the Inventory of Federal Criminal Law that would be authorized in S. 2123 should be known before retroactive application of a default mens rea standard. That section of S. 2123 would require the attorney general to report back to the Senate and House Judiciary Committees within one year after enactment with an inventory of all criminal statutory and regulatory provisions for which no mens rea element is required.

Saltzburg emphasized that time is growing short for the full Senate to act on the much-needed compromise reforms in S. 2123 that were the result of “commendable bipartisan work of the leaders and members of this committee.” He said the association “would support a similar careful compromise on mens rea, if it can be found, but if not, would urge the Senate to pass S. 2123 soon.”

Also testifying on the panel with Saltzburg was former U.S. Attorney General Edwin Meese III, the Ronald Reagan Distinguished Fellow Emeritus at the Heritage Foundation. Meese emphasized that inadequate criminal intent requirements harm individuals and society, and he urged that mens rea reform be included as part of the current criminal justice reform effort.

Robert Weissman, president of Public Citizen, urged against a blanket willfulness standard, which he said “would make it much harder for prosecutors to criminally prosecute companies and individual executives responsible for the manufacture of dangerous drugs and food that kill or sicken consumers, or who act otherwise to imperil consumers, swindle the public, endanger their workers, or poison the environment.” Such a standard would prompt corporations and corporate officials to pursue strategic ignorance of the law and company actions in order to avoid criminal liability, he testified.

Leslie R. Caldwell, assistant attorney general for the Department of Justice (DOJ) Criminal Division, testified that although DOJ supports the sentencing reform legislation and encourages Congress to pass it, the department maintains that enactment of a default mens rea standard for all existing federal laws would cause extreme and very harmful disruptions to essential federal criminal law enforcement operations. “It would create massive uncertainty in the law and allow defendants charged with serious crimes - including terrorism, violent crime, sexual offenses, immigration violations, and corporate fraud - to embroil federal courts in extensive litigation and potentially escape liability for egregious and very harmful conduct,” she testified.

Caldwell said the results of an inventory of federal criminal laws will allow those who believe there are potential problems with specific statutes to address the deficiencies after a careful examination of each statute. “There is no need for a sweeping, one-size-fits-all, default mens rea,” she concluded.

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