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:

  • Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate guilty-mind requirements;
  • Criminal legislation was riddled with vague, far-reaching and imprecise language;
  • Congress routinely delegated its authority to make criminal law to unaccountable regulators;
  • Over half of all new criminal offenses were not sent to the House or Senate Judiciary Committees for review.

By consistently creating new criminal laws without consulting the special expertise of the two judiciary committees, Congress is endangering civil liberties and placing all Americans at risk of unjust criminal conviction for violating crimes they did not even know they were committing.

Fortunately, “Without Intent” also makes several critical recommendations that, if followed by Congress, could help ensure all criminal laws are written in ways that average Americans are able to easily identify the conduct that could make them criminals.

The release of “Without Intent” will be followed today by The Heritage Foundation book event, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. The book tells the stories of individual who have been caught up by these same vague, overbroad criminal laws – laws that pervert the justice system and transform respectable, conscientious Americans into criminals.

The one-two punch of “Without Intent” and today’s “One Nation” event should finally make clear the extent to which Congress is undermining the integrity of the American criminal justice system. Ordinary Americans should be outraged that most Members of Congress hold their right to be safe from unjustified criminal punishment in such disregard.

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