Senators Hear Debate On “Mens Rea” As Justice Reform Window Narrows


The Senate Judiciary Committee heard testimony yesterday on a narrow but crucial issue that has emerged as the main political obstacle to a federal sentencing reform bill: to what degree prosecutors must prove a defendant's criminal intent to win convictions for certain federal crimes. The Washington Post says that for most crimes, federal prosecutors must establish the defendant's willful intent to break the law, or the mens rea (“guilty mind.”). Some crimes in federal statutes and regulations do not include willfulness as part of the elements of the offense. Democratic lawmakers and liberal activists call efforts to fill the gap an attempt to make it more difficult for the federal government to prosecute corporations and their executives for crimes against the public welfare.

Leslie Caldwell, chief of the Justice Department’s criminal division, said that one of the leading proposals to overhaul mens rea requirements would go far beyond corporate regulatory matters to make prosecutions of terrorists and child pornographers more difficult. “It's quite challenging to prove that very senior corporate executives were aware of criminal conduct that was going on within their corporations,” she said. “But … they may have consciously avoided knowing facts, and under the current law, intent can be satisfied by willful blindness.” As the debate went on, Senate Majority Leader Mitch McConnell (R-KY) would not commit yesterday to bringing a criminal justice reform bill to the floor, saying GOP leaders would be “working through the process of bringing everybody in the Republican Conference up to speed on this very important issue.” With a sparse congressional schedule, presidential campaigns entering the primary season, and lawmakers turning their attention to their own campaigns, leaders of both parties say the window for action could be closing in weeks.

See Viewpoint column, Rethinking Criminal Intent: Why ‘Mens Rea’ Matters

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