Stop Prosecuting People for Crimes That Nobody Knows Are a Crime?

Mens rea reform needs to happen now.


(From The Washington Examiner)

As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization. There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count.

And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.

In our judicial system, being guilty of an offense usually requires that offenders have some level of intent or awareness that their actions are unlawful. That level of awareness, or mens rea (Latin for “guilty mind”), varies by offense and can mean the difference between a simple misunderstanding or accident and a long prison sentence. Too often, laws and regulations created by an ever-expanding federal government fail to clearly outline the level of intent that makes conduct criminal, leaving people vulnerable to prosecution for actions that they didn’t intend to be unlawful. And if the law is unclear, courts are left trying to fill in the gaps, which can result in the inconsistent application of the law and uncertainty about what the law is.

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation. We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.

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