[Congressional Record Volume 163, Number 157 (Monday, October 2, 2017)]
[Senate]
[Pages S6238-S6239]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                 Reform of Criminal Intent Requirements

  Mr. President, with the time I have remaining, I wish to address an 
issue that remains critically important as well--overcriminalization 
and the need to reform criminal intent requirements in our Federal 
criminal code.
  Like many of my colleagues, I believe Congress has criminalized far 
too much conduct and has mandated overly harsh penalties for too many 
crimes. A number of my colleagues have sought to address these problems 
by cutting prison sentences, altering statutory minimums, or releasing 
prisoners early for good behavior. But as we seek to reform the 
criminal justice system, we must be careful not to overlook one of the 
major roots of the problem: the lack of adequate criminal intent 
requirements in Federal statutes.
  ``Mens rea'' is a Latin phrase meaning guilty mind. One of the time-
honored, fundamental features of our criminal law is that for a person 
to be found guilty of a crime, he or she must have committed the act 
with criminal intent or mens rea. In the English common law, this 
principle was summarized in the idea that the act is not culpable 
unless the mind is guilty. Mens rea requirements protect individuals 
who commit an illegal act without knowing that their action was wrong 
or unlawful.
  To give an example, a person who mistakenly retrieves the wrong coat 
from a coatroom does not become a thief merely because he took 
something that wasn't his but looked like his. Only if he knows that 
the coat belongs to someone else does he commit a criminal act.
  Unfortunately, many of our current criminal laws and regulations 
contain inadequate mens rea requirements, and some contain no mens rea 
requirement at all. This leaves individuals--innocent individuals--
subject and vulnerable to prosecution for conduct they believed to be 
lawful at the time.
  In recent years, as Congress and Federal agencies have criminalized 
more behavior, they have often been vague about mens rea requirements 
or even silent about mens rea altogether.
  In a 2014 Tennessee Law Review article, Michael Cottone investigated 
how many Federal criminal statutes there are in the U.S. code. Mr. 
Cottone explained that ``tellingly, no exact count of the number of 
federal statutes that impose criminal sanctions has ever been given.'' 
Most scholars agree that there are approximately 5,000 Federal statutes 
that impose criminal sanctions, but those criminal statutes do not 
include the nearly 300,000 Federal regulations that also carry criminal 
penalties.
  With so many criminal laws on the books, it is far too easy for 
Americans to break Federal laws unwittingly, with no understanding 
whatsoever that their behavior happens to be illegal. For example, did 
you know it is a Federal crime to write a check for an amount of less 
than $1 or that it is a Federal crime to allow a pet to make a noise 
that frightens wildlife on Federal land? Even more incredibly, did you 
know it is a Federal crime to keep a pet on a leash that exceeds 6 feet 
in length on Federal land?
  These are only a few examples of unlawful activities that reasonable 
people could not reasonably be expected to know. What is worse, many of 
these unlawful activities are punishable by time in prison. This is not 
only ridiculous, but it is immoral. The lack of adequate mens rea 
requirements in our Federal criminal code subjects innocent people to 
unjustified punishment.
  To address this issue, I reintroduced the Mens Rea Reform Act of 
2017. Today I wish to express my sincere appreciation to the Heritage 
Foundation and the Federalist Society for highlighting the need for 
mens rea reform

[[Page S6239]]

and for supporting my efforts to protect innocent people. They are not 
the only ones. Anybody who looks at this has to say: Are we going to 
send people to jail when they didn't know what they were doing was 
wrong? It makes anybody stop and think: Is that right? Should we do 
that? Is that fair?
  Likewise, I wish to thank Senators Rand Paul, Ted Cruz, Mike Lee, and 
David Perdue for joining me as cosponsors on this bill. Our bill sets a 
default intent requirement of willfulness for all Federal criminal 
offenses that lack an intent requirement. Additionally, the bill 
defines willfulness to mean that a person acted with knowledge that his 
or her conduct was unlawful.
  Naturally, our bill does not apply to any offenses that Congress 
clearly intended to be strict liability offenses. Our proposal has 
garnered widespread support from a variety of organizations, including 
the National Association of Criminal Defense Lawyers, Koch Industries, 
the Federal Defenders, the U.S. Chamber of Commerce, and the Heritage 
Foundation--just to name a few.
  Importantly, our bill does not remove any crimes from the books, nor 
does it override any existing mens rea standards written in statute. 
Moreover, it does not limit Congress's authority to create new criminal 
offenses, including strict liability offenses.
  Mens rea really is a simple issue. 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. 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 solution will go a long way in 
reducing harsh sentences for morally innocent offenders. It will also 
push back against the overcriminalization of innocent behavior. As I 
have said many times, any consideration of criminal justice reform or 
sentencing reform is incomplete without reforms to mens rea 
requirements.