Concerns About Federal Trend Toward Weakening Mens Rea

In criminal law, there is a basic concept known as “mens rea.” In Latin, it means “guilty mind.” Mens rea has long been an important factor in determining whether someone is guilty of murder, or arson, or other serious crimes. To be convicted of first-degree murder, for instance, it’s not enough that you killed someone — you must have intended to kill that person. Intent is what separates the most serious crimes from the lesser-degree crimes — murder from involuntary manslaughter. One reason mens rea is so important is because our justice system revolves around the idea (in theory if not always in fact) that it should be difficult to force people to give up their lives because they committed a crime. The court needs to determine whether the crime was committed by accident or whether there were other mitigating circumstances. Many criminal defense attorneys have successfully proven that their clients lacked mens rea to commit a crime, resulting in a lesser sentence or no sentence.

Yet mens rea is becoming less of a factor as the federal criminal code expands. Over the past few decades, Congress has passed more criminal laws that fail to take mens rea into account. Back in the early days of the republic, the first federal criminal law listed fewer than 20 crimes. Today, there are 4,500. Controversies can be found in such far-flung areas as animal rights: for example, a 2006 law makes animal rights protestors criminally liable for provoking fear in the targets of their protests, even if that was not the protestors’ intent.

It used to be that the mens rea for crimes was “willful,” which generally meant that suspect intended to commit the crime before he or she committed it. However, prosecutors complained that this was too difficult a standard to prove, so many criminal laws have since lowered the mens rea to “knowing.” “Knowing” means that the suspect might not have intended to commit a crime, but he or she knew that the activity was wrong. As the criminal code and Federal Sentencing Guidelines expand, more laws have weaker mens rea requirements. Around 40% of the criminal laws passed between the 109th and 111th Congress featured a weak mens rea for nonviolent offenses. The trend has spurred criticism from Justice Scalia, who complained about “an ever-increasing volume” of “fuzzy, leave-the-details-to-be-sorted-out-by-the-courts” laws.

Fortunately, there are signs that Congress’s enthusiasm for the tough-on-crime approach is giving way to second thoughts. More Representatives are insisting that any new criminal law include the “willful” mens rea standard. At a 2009 Judiciary subcommittee hearing on the growth of criminal law, Representative Bobby Scott of Virginia insisted that mens rea served an important role in protecting those who never intended to commit a crime. Too often, mens rea is weakened just as a result of the messy legislation process, not out of any real intent. It is good that Congress is beginning to address this.

As University of Virginia professor Anne Coughlin notes, if you criminalize everything, you increase the likelihood that the average citizen will never fully know the penal code. A lowered mens rea means that more people would be guilty of crimes who are otherwise innocent — that is, they did not even know their actions were wrong. As criminal law even includes cyber crimes these days, we can only hope that the current pushback against a weakened mens rea is only the beginning.