Mens Rea Reform: A Brief Overview Richard M. Thompson II Legislative Attorney April 14, 2016 Congressional Research Service 7-5700 www.crs.gov R44464 Mens Rea Reform: A Brief Overview Summary Criminal justice reform has played a major role in the congressional agenda over the past several Congresses, with sentencing reform bills making up the majority of the legislative action on this issue. However, some reformers have also highlighted the need to strengthen the mens rea requirements in federal law. Mens rea, Latin for “guilty mind,” is the mental state the government must prove to secure a conviction. For instance, some laws require that the prosecution demonstrate that the defendant intentionally have committed the act in question—that is, committing the act with the conscious desire for the harmful conduct to occur—while others require that the act be done knowingly or with reckless disregard of the harm it may pose. Some modern statutes require no mens rea at all; these are commonly referred to as strict liability offenses. Unlike the Model Penal Code, which includes four categories of “culpability” or moral blameworthiness, the Federal Criminal Code, found largely in Title 18, does not create uniform mens rea standards. Instead, each statute may or may not contain a mens rea element depending on the statute. Supplementing the statutory text, the Supreme Court has developed a set of presumptions to apply when a mens rea term is omitted. However, the Court has applied these rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the purpose behind the law (e.g., penal or regulatory). In an effort to bring greater clarity to this area of criminal law, Senator Orin Hatch and Representative James Sensenbrenner have introduced, respectively, the Mens Rea Reform Act of 2015 (S. 2298) and the Criminal Code Improvement Act of 2015 (H.R. 4002). Although they take different approaches, these bills aim to create a uniform mens rea standard across federal law. On January 20, 2016, the Senate Judiciary Committee held a hearing on S. 2298; no further action has been taken on this bill. The House Judiciary Committee held a markup of H.R. 4002 on November 18, 2015, and ordered the bill to be reported to the full House. Some have argued that strengthening federal mens rea standards would permit corporate actors to evade prosecution under federal statutes aimed at protecting the health, safety, and welfare of the citizenry—including environmental and workplace laws. Proponents have countered that the bills are not designed to simply protect corporate wrongdoers, but are intended to ensure that any person is not prosecuted for a crime he did not intend to commit. To provide context for this debate, this report provides a brief background on the history of mens rea, including an exploration of the Supreme Court’s default mens rea rules; analyzes the various bills that intend to create new default rules; and applies these rules to various existing federal criminal offenses. Congressional Research Service Mens Rea Reform: A Brief Overview Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 2 Legislation to Create Default Mens Rea Rules ................................................................................ 5 Mens Rea Reform Act of 2015 (S. 2298) .................................................................................. 5 Criminal Code Improvement Act of 2015 (H.R. 4002) ............................................................. 6 Application of Legislation to Existing Offenses ....................................................................... 8 Traditional Federal Crimes ................................................................................................. 8 Regulatory Offenses .......................................................................................................... 12 Conclusion ..................................................................................................................................... 19 Contacts Author Contact Information .......................................................................................................... 19 Congressional Research Service Mens Rea Reform: A Brief Overview Introduction Criminal justice reform has played a major role in the congressional agenda over the past several Congresses, with sentencing reform bills making up the majority of the legislative action on this issue.1 However, some reformers have also highlighted the need to strengthen the mens rea requirements in federal law. Mens rea, Latin for “guilty mind,” is the mental state the government must prove to secure a conviction.2 For instance, some laws require that the prosecution demonstrate that the defendant intentionally committed the act in question—that is, committing the act with the conscious desire for the harmful conduct to occur—while others require that the act be done knowingly or with reckless disregard of the harm it may pose. Some modern statutes require no mens rea at all; these are commonly referred to as strict liability offenses. Unlike the Model Penal Code, which includes four categories of “culpability” or moral blameworthiness,3 the Federal Criminal Code, found largely in Title 18, does not create uniform mens rea standards. Instead, each statute may or may not contain a mens rea element depending on the statute. Supplementing the statutory text, the Supreme Court has developed a set of presumptions to apply when a mens rea term is omitted. However, the Court has applied these rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the purpose behind the law (e.g., penal or regulatory). In an effort to bring greater clarity to this area of criminal law, Senator Orin Hatch and Representative James Sensenbrenner have introduced, respectively, the Mens Rea Reform Act of 2015 (S. 2298)4 and the Criminal Code Improvement Act of 2015 (H.R. 4002).5 Although they take different approaches, these bills aim to create a uniform mens rea standard across federal law. On January 20, 2016, the Senate Judiciary Committee held a hearing on S. 2298;6 no further action has been taken on this bill. The House Judiciary Committee held a markup of H.R. 4002 on November 18, 2015, and ordered the bill to be reported to the full House. Some have argued that strengthening federal mens rea standards would permit corporate actors to evade prosecution under federal statutes aimed at protecting the health, safety, and welfare of the citizenry—including environmental and workplace laws.7 At the January 20 Senate Judiciary Committee hearing, Assistant Attorney General Leslie Caldwell argued that “[a]pplying a default mens rea to these statutes might insulate culpable individuals, especially senior corporate executives, who deliberately close their eyes to what otherwise would be obvious to them.”8 1 See, e.g., Smarter Sentencing Act, S. 502, H.R. 920, 114th Cong. (2015); Justice Safety Valve Act of 2015, S. 353, H.R. 706, 114th Cong. (2015). 2 th See BLACK’S LAW DICTIONARY (10 ed. 2014) (“The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.”). 3 The Model Penal Code (MPC) is a set of model provisions created by the American Law Institute for adoption by the states. See generally WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 1.1(b) (2d ed. 2003). The MPC sets forth and defines four “minimum requirements of culpability”: purposely, knowingly, recklessly, and negligently. See MODEL PENAL CODE § 2.02. 4 S. 2298, 114th Cong., 1st Sess. (2015). 5 H.R. 4002, 114th Cong. 1st Sess. (2015). 6 See The Adequacy of Criminal Intent Standards in Federal Prosecutions: Hearing Before the Senate Judiciary Committee, 114th Cong., 2nd Sess. (2016) [hereinafter Senate Judiciary Hearing]. 7 See Editorial Board, Don’t Change the Legal Rules on Intent, N.Y. TIMES (Dec. 5, 2015), available at http://www.nytimes.com/2015/12/06/opinion/sunday/dont-change-the-legal-rule-on-intent.html?_r=0. 8 Senate Judiciary Hearing, supra note 6, at 3 (written statement of Leslie Caldwell, Assistant Attorney General), (continued...) Congressional Research Service 1 Mens Rea Reform: A Brief Overview Proponents have countered that the bills are not designed to simply protect corporate wrongdoers, but are intended to ensure that persons are not prosecuted for a crime they did not intend to commit or know they were committing.9 To provide context for this debate, this report provides a brief background on the history of mens rea, including an exploration of the Supreme Court’s default mens rea rules; analyze the various bills that intend to create new default rules; and applies these rules to various existing federal criminal offenses. Background A criminal offense usually consists of both a prohibited act (the “actus reus”) and a guilty mind (the “mens rea”).10 That is, in order to secure a conviction, the prosecution must prove beyond a reasonable doubt that the defendant both committed the harmful act and did so with the requisite mental state.