Congress Weakens The Need to Prove Criminal Intent


For centuries, the notion of mens rea, Latin for “guilty mind,” has held that people must know they are doing something wrong before they can be found guilty. Latin for a “guilty mind.” The Wall Street Journal says this legal protection is being eroded as the federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. What once might have been considered simply a mistake is now sometimes punishable by jail time.

In 1790, the first federal criminal code listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations. One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters’ intentions. More than 40 percent of nonviolent offenses created or amended during two recent Congresses had “weak” mens rea requirements at best, says the Heritage Foundation and the National Association of Criminal Defense Lawyers. Rep James Sensenbrenner (R-WI), chairman of the House crime subcommittee, wants to clean up the definition of criminal intent as part of a broader revamp of the criminal code. “How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix,” he said.

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