May 18, 2010 2:34PM

Without Intent

One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill‐​defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.


Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.


The report studies the legislation proposed or passed by the 109th Congress (2005−2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:

  • Enact default rules of interpretation ensuring that guilty‐​mind requirements are adequate to protect against unjust conviction.
  • Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
  • Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
  • Provide detailed written justification for and analysis of all new federal criminalization.
  • Redouble efforts to draft every federal criminal offense clearly and precisely.

This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.


The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.