Bureaucrats and prosecutors love this criminalization binge. Targets, especially nonrich individuals, are more likely to cop a plea when faced with criminal instead of civil charges, especially since the feds have immense resources and theirs are limited. Companies also know they can be destroyed by an indictment. Ask former accounting giant Arthur Andersen. It collapsed when hit with federal criminal charges, which were subsequently tossed out– too late, however, to save the firm.
What to do? One powerful antidote is being pushed by Senator Orrin Hatch (R-Utah) and a number of House members: the reform of criminal intent requirements. In other words, the feds won’t easily be able to go after people if those people didn’t know they were committing a crime. The doctrine is called mens rea, Latin for “guilty mind.” Mens rea has long been part of Western legal tradition but has too often fallen into disuse.
As Hatch has warned, “Our criminal code has grown too large, too complicated and too sclerotic. We have too many crimes that criminalize too much conduct and result in penalties that too often are unnecessarily harsh.”
There’s a major effort in Congress for prison-sentencing reform legislation. Hatch wants a so-called default mens rea requirement to be a part of this bill. This would “protect individuals from being convicted for conduct they did not know was wrong. At the very least, the government should have to prove criminal intent in order to convict.”