Bench Memos

Does Mens Rea Reform “Provide Cover” for Executives?

Yes, says Deputy Attorney General Sally Yates, an Obama political appointee in the Department of Justice, who last week took aim at the House Judiciary Committee’s bipartisan criminal justice reform efforts. She was specifically targeting the House mens rea reform bill, which would ensure that to be convicted of a federal crime, a defendant must have a minimal level of criminal intent. Here’s what Yates said, as quoted by NPR:

[The bill] would end up meaning that some criminals would go free as a result, because we simply would not be able to meet that standard of proof. If this proposal were to pass, it would provide cover for top-level executives, which is not something we think would be in the best interest of the American people.

Ms. Yates caricatures mens rea reform as a protection for rich defendants, not for ordinary Americans, but she is wrong. Consider the experience of Lawrence Lewis, for instance, who became a federal criminal because he did something noble: He diverted sewage away from a retirement home’s sickest residents and into an outside storm drain that he thought was connected to the main sewer system. The federal government prosecuted him.

What’s more, crimes without a mens rea – so-called “strict liability crimes” – create the possibility of jail time and criminal felony convictions for accidental conduct. One paper discussing the problem put it particularly well:

Mens rea requirements are more important today because the federal government creates so many new crimes.  Historically, nearly all crimes—because they were common law crimes—concerned acts that were malum in se, or wrong in itself, such as murder, rape, robbery, burglary, and theft. Virtually all new federal crimes and offenses are malum prohibitum, or wrong only because it is prohibited—using a 4-H club logo without authorization is an illustrative example of a malum prohibitum offense.  For malum prohibitum crimes and petty offenses, mens rea requirements are needed in order to protect individuals who have accidentally or unknowingly violated the law.

In other words, basic justice is at stake. Saying that mens rea reform provides cover for defendants is like saying that the Commerce Clause provides cover for drug dealers. If anything, mens rea reform mostly protects the millions of Americans who can’t retain armies of lawyers to advise them about the ever-changing scope of malum prohibitum offenses. Basic mens rea requirements can certainly create more work for the government sometimes, but they also ensure that all criminal defendants, not just rich ones, will be treated fairly. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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