Morning Bell: The Congressional Assault on Criminal Justice

Ryan O'Donnell /

If Congress drafts a law and no one can understand it, can individuals be punished for breaking it? Increasingly, to the detriment of all Americans, the answer is yes. Since our nation’s founding, a core principle of our system of justice has been that no citizen should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful. This principle is embodied in the requirement that the government must prove a defendant acted with intent, or at least knowledge, before subjecting him to criminal punishment. Unfortunately this cornerstone of our criminal justice system has been under assault from Congress in recent decades.

By the end of 2007, the United States Code included over 4,450 federal crimes, with an estimated tens of thousands more located in the federal regulatory code. Many of these offenses were only recently created, and far too many lack an adequate guilty-mind (known by lawyers as mens rea) requirement. According to a new and unprecedented study released jointly today by The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL), the 109th Congress alone proposed 446 non-violent criminal offenses, 57 percent of which lacked an adequate guilty-mind requirement. The report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, also reveals that 23 of those inadequately protective offenses were even enacted into law.

Today on Capitol Hill in a rare display of bipartisanship in Washington, Reps. Bobby Scott (D-VA) and Louie Gohmert (R–TX) are holding a joint press conference to announce the report with Heritage’s Ronald Reagan Distinguished Fellow and former U.S. Attorney General Edwin Meese and NACDL’s Executive Director Norman Reimer. “Without Intent” reveals several startling facts about this Congress’ penchant to overcriminalize. These facts indicate that innocent Americans are increasingly at risk of criminal punishment. For example, in the 109th Congress: (more…)