Without Intent

Without Intent
How Congress Is Eroding the

Criminal Intent Requirement in Federal Law
Brian W. Walsh and Tiffany M. Joslyn

Foreword by Edwin Meese III and Norman L. Reimer
Copyright © 2010 The Heritage Foundation and National Association of Criminal Defense Lawyers
This report is subject to a Creative Commons Attribution-Noncommercial-No Derivative Works license

(see http://www.creativecommons.org). It may be reproduced, provided that no charge is imposed, and
The Heritage Foundation and the National Association of Criminal Defense Lawyers are acknowledged
as the original publishers and the copyright holders. For any other form of reproduction, please contact
The Heritage Foundation or NACDL for permission.
Cover illustration by Natasha L. Efrat. Copyright © 2010 National Association of Criminal Defense Lawyers
Without Intent
Brian W. Walsh and Tiffany M. Joslyn

Foreword by Edwin Meese III and Norman L. Reimer
Edwin J. Feulner Cynthia Hujar Orr

President President
The Heritage Foundation National Association of
Washington, D.C. Criminal Defense Lawyers
San Antonio, Texas
Edwin Meese III
Chairman Norman L. Reimer
Center for Legal & Judicial Studies Executive Director
Washington, D.C. Criminal Defense Lawyers
Washington, D.C.
Todd F. Gaziano
Kyle O’Dowd
Director
Associate Executive Director for Policy
Center for Legal & Judicial Studies
National Association of
The Heritage Foundation
Criminal Defense Lawyers
Washington, D.C.
Washington, D.C.
Robert Alt Shana-Tara Regon
Senior Legal Fellow & Deputy Director White Collar Crime Policy Director
Center for Legal & Judicial Studies National Association of
The Heritage Foundation Criminal Defense Lawyers
Washington, D.C. Washington, D.C.
Brian W. Walsh Tiffany M. Joslyn

Senior Legal Research Fellow White Collar Crime Policy Counsel
Center for Legal & Judicial Studies National Association of
The Heritage Foundation Criminal Defense Lawyers
Washington, D.C. Washington, D.C.
April 2010
Table of Contents
About the Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Fact Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Criminal Punishment Requires Culpability and Fair Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Proliferation of Criminal Offenses with Inadequate Mens Rea Requirements

Undermines Federal Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rationale and Summary of Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rationale for the Study of the Legislative Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Summary of Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mens Rea Data Analysis, Calculations, and Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mens Rea Category Totals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A Study of Each Mens Rea Category Through Example Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Offenses in the None Mens Rea Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Offenses in the Weak Mens Rea Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Offenses in the Moderate Mens Rea Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Offenses in the Strong Mens Rea Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Reliance on Judiciary Committee Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Identifying the Effect of Congressional Actions on Mens Rea Requirements . . . . . . . . . . . . . . . . . . . 20
The Regulatory Criminalization Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Conclusions on the Legislative Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mens Rea Requirements Are Inadequate at Every Step of the Legislative Process . . . . . . . . . . . . . . 22
The Judiciary Committees Are Frequently Afforded No or Inadequate Opportunities for
Oversight of Criminal Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ii WITHOUT INTENT
The Proliferation of Federal Criminal Law Continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Poor Legislative Draftsmanship Is Commonplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Congress Regularly and Inappropriately Delegates Criminal Lawmaking Authority . . . . . . . . . . . . 25
Ending the Trend: Federal Criminal Law Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Enact Default Mens Rea Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Codify the Common-Law Rule of Lenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Require Sequential Referral to the Judiciary Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Require Reporting on All New Federal Criminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Focus on Clear and Careful Draftsmanship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Methodological Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Mens Rea Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Studied Offenses Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Counting the Studied Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Offense Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Categorizing the Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
The Four Mens Rea Categories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Inadequate Mens Rea Requirements: “None” and “Weak” . . . . . . . . . . . . . . . . . . . . . . . 35
Adequate Mens Rea Requirements: “Moderate” and “Strong” . . . . . . . . . . . . . . . . . . . . 35
Tabulating Intermediate Mens Rea Grades . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Congressional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Statistical Analysis of Possible Correlations Between Congressional Actions and
Protectiveness of Mens Rea Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Online Appendix – Available at: http://report.heritage.org/sr0077 and www.nacdl.org/withoutintent

Offenses Appendix
Part One: Studied Offenses Originating in the United States House of Representatives
Part Two: Studied Offenses Originating in the United States Senate
Correlation Appendix
How Congress Is Eroding the Criminal Intent Requirement in Federal Law iii
About the Organizations
Founded in 1973, The Heritage Foundation is a research and educational institution—a think tank—
whose mission is to formulate and promote conservative public policies based on the principles of free enter-
prise, limited government, individual freedom, traditional American values, and a strong national defense.
We believe the principles and ideas of the American Founding are worth conserving and renewing. As
policy entrepreneurs, we believe the most effective solutions are consistent with those ideas and principles.
Our vision is to build an America where freedom, opportunity, prosperity, and civil society flourish.
Heritage’s staff pursues this mission by performing timely, accurate research on key policy issues and
effectively marketing these findings to our primary audiences: members of Congress, key congressional
staff members, policymakers in the executive branch, the nation’s news media, and the academic and
policy communities.
Governed by an independent Board of Trustees, The Heritage Foundation is an independent, tax-

exempt institution. Heritage relies on the private financial support of the general public—individuals, foun-
dations, and corporations—for its income, and accepts no government funds and performs no contract
work. Heritage is one of the nation’s largest public policy research organizations. More than 625,000 indi-
vidual members make it the most broadly supported think tank in America.
The Heritage Foundation

214 Massachusetts Avenue, NE
Washington, D.C. 20002
(800) 546-2843
heritage.org
iv WITHOUT INTENT
About the Organizations
The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization
in the United States advancing the goal of the criminal defense bar to ensure justice and due process for
persons charged with a crime or wrongdoing. NACDL’s core mission is to: Ensure justice and due process
for persons accused of crime; Foster the integrity, independence and expertise of the criminal defense pro-
fession; and Promote the proper and fair administration of criminal justice.
Founded in 1958, NACDL has a rich history of promoting education and reform through steadfast
support of America’s criminal defense bar, amicus advocacy, and myriad projects designed to safeguard due
process rights and promote a rational and humane criminal justice system. NACDL’s 11,000 direct mem-
bers—and more than 90 state, local and international affiliates with an additional 40,000 members—include
private criminal defense lawyers, public defenders, active U.S. military defense counsel, and law professors
committed to preserving fairness in America’s criminal justice system. Representing thousands of crimi-
nal defense attorneys who know firsthand the inadequacies of the current system, NACDL is recognized
domestically and internationally for its expertise on criminal justice policies and best practices.
National Association of Criminal Defense Lawyers

1660 L Street, NW, 12th Floor
Washington, D.C. 20036
(202) 872-8600
nacdl.org
How Congress Is Eroding the Criminal Intent Requirement in Federal Law v

Foreword
A core principle of the American system of justice is that individuals should not be subjected
to criminal prosecution and conviction unless they intentionally engage in inherently wrongful
conduct or conduct that they know to be unlawful. Only in such circumstances is a person truly
blameworthy and thus deserving of criminal punishment. This is not just a legal concept; it is the
fundamental anchor of the criminal justice system. The Heritage Foundation and the National
Association of Criminal Defense Lawyers (NACDL) share a common concern that expansive
and ill-considered criminalization has cast the nation’s criminal law enforcement adrift from this
anchor. In the absence of a clearly articulated nexus between a person’s conduct and his mental
culpability, criminal laws subject the innocent to unjust prosecution and punishment for honest
mistakes or actions that they had no reason to know are illegal.
In recent decades, the federal government has increasingly employed criminal statutes to
regulate behavior. Congress has invoked this most awesome power of government—the pow-
er to prosecute and imprison—as a regulatory mechanism, something never contemplated by
the nation’s founders. By the end of 2007, the United States Code included over 4,450 federal
crimes; an estimated tens of thousands more are located in the federal regulatory code. But
something fundamental is often lacking from this tidal wave of penal provisions: meaningful
mens rea requirements. Mens rea is a Latin term describing a culpable mental state, without
which there can be no crime. Lamentably, Congress has enacted scores of laws with weak
or no mens rea requirements, the result of a legislative process that is haphazard at best and
arbitrary at worst. In doing so, it has eroded the principle of fair notice beyond recognition
and dangerously impaired the justification for criminal punishment that has for centuries been
based on an individual’s intent to commit a wrongful act. This trend undermines confidence
in government and risks pervasive injustice.
The Heritage Foundation is a research and educational institution whose mission is to for-
mulate and promote conservative public policies based upon the principles of free enterprise,
limited government, individual freedom, traditional American values, and a strong national
defense. NACDL is the preeminent organization in the United States advancing the goals of
the criminal defense bar to ensure justice and due process for persons accused of crime or
wrongdoing and to seek a rational and humane criminal justice system. While Heritage and
NACDL by no means share a common overall agenda, the two organizations are united in the
belief that criminal lawmaking must return to its fundamental roots by requiring true blame-
worthiness and providing fair notice of potential criminal liability. Penal statutes that do not
provide for a clear and meaningful mens rea requirement are unacceptable. This report is an
effort to demonstrate the depth and breadth of this problem.
vi WITHOUT INTENT
Through an analysis of legislation introduced in the 109th Congress, this report shows
just how far federal criminal lawmaking has drifted from its doctrinal anchor. It establishes
that the legislative process regularly results in the passage of laws that lack adequate mens
rea requirements. Further, it shows that the legislative process itself is flawed and disjointed.
The absence of any uniform or consistent process to calibrate the intent requirements in
penal provisions virtually guarantees the enactment of laws that lack meaningful or consistent
mens rea components. Finally, this report proposes commonsense, workable solutions that can
stem, and possibly reverse, this troubling trend.
Heritage and NACDL are proud to have collaborated on this project. We are confident
that it will heighten awareness concerning a burgeoning problem that transcends political
affiliation or ideology. We are equally confident that fostering that awareness will promote
principled reform.
Edwin Meese III Norman L. Reimer

Criminal Defense Lawyers

How Congress Is Eroding the Criminal Intent Requirement in Federal Law vii
Acknowledgements
This study and report are the results of a collaborative project between the National Association of
Criminal Defense Lawyers (NACDL) and The Heritage Foundation. The authors would like to thank the
Board of Trustees of The Heritage Foundation and the Board of Directors of NACDL, as well as President
Cynthia Hujar Orr and the officers of NACDL, for their support.
Many individuals provided invaluable guidance and oversight for this project, particularly Edwin
Meese, Chairman of Heritage’s Center for Legal & Judicial Studies, and Norman L. Reimer, Executive
Director of NACDL. The success of this project would not have been possible without the dedicated efforts
and insightful analysis provided by Robert Alt, Shana-Tara Regon, and Ivan Dominguez. Todd Gaziano,
Kyle O’Dowd, Jack King, Quintin Chatman, Christopher Norfleet, Levi Swank, and Drew Sarrett provided
invaluable input and assistance at multiple stages of the project, and Stephanie Martz had a key role in the
development of the study’s initial concept. Numerous law clerks and interns from both organizations pro-
vided valuable assistance as well.
David Muhlhausen and Heritage’s Center for Data Analysis worked efficiently to develop and conduct
the statistical analyses and conclusions supporting some of this study’s findings. The authors also wish to
acknowledge the hard work provided by the members of the art, creative services, design, marketing, and
editorial departments of both organizations.
Finally, the authors wish to thank Jon May, Jeffrey Parker, Ellen Podgor, Irwin Schwartz, Earl Silbert,
Alixandra Smith, and Andrew Weissmann for reviewing early drafts of the report and offering candid and
helpful feedback.
Despite these acknowledgements, any errors or omissions in the study or report are solely the respon-
sibility of the authors.
viii WITHOUT INTENT

Fact Sheet
Without Intent: How Congress Is Eroding the

• A core principle of the American system of justice is that no one should be subjected to criminal
punishment for conduct that he did not know was illegal or otherwise wrongful.
• This principle of fair notice, which has been a cornerstone of our criminal justice system since
the nation’s founding, is embodied in the requirement that, with rare exceptions, the govern-
ment must prove the defendant acted with mens rea—a “guilty mind”—before subjecting him to
criminal punishment.
• Members of the 109th Congress (2005–2006) proposed 446 criminal offenses that did not involve
violence, firearms, drugs and drug trafficking, pornography, or immigration violations.
• Of these 446 proposed non-violent criminal offenses, 57 percent lacked an adequate mens rea
requirement. Worse, during the 109th Congress, 23 new criminal offenses that lack an adequate
mens rea requirement were enacted into law.
• Congress’s expertise for crafting criminal offenses resides in the House and Senate Judiciary
Committees. Only these committees have express jurisdiction over federal criminal law, yet of
the 446 criminal offenses studied, over one-half were not sent to the House or Senate Judiciary
Committees for review and deliberation.
• By consistently neglecting the special expertise of the two judiciary committees when drafting
criminal offenses, Congress is endangering civil liberties.
• Without reforms like those recommended in this report, innocent individuals are at risk of un-
just conviction under federal criminal offenses that have inadequate mens rea requirements.
Recommendations
Congress should:
• Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to
protect against unjust conviction.
• Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails
to legislate clearly.
• Require adequate judiciary committee oversight of every bill proposing criminal offenses
or penalties.
• Provide detailed written justification for and analysis of all new federal criminalization.
• Redouble efforts to draft every federal criminal offense clearly and precisely.
How Congress Is Eroding the Criminal Intent Requirement in Federal Law ix

Executive Summary
For centuries, “guilty mind,” or mens rea, requirements restricted criminal punishment to those who
were truly blameworthy and gave individuals fair notice of the law. No person should be convicted of a
crime without the government having proved that he acted with a guilty mind—that is, that he intended
to violate a law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice
of possible criminal liability. In a sharp break with this tradition, the recent proliferation of federal criminal
laws has produced scores of criminal offenses that lack adequate mens rea requirements and are vague in
defining the conduct that they criminalize.
The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly under-
took an unprecedented look at the federal legislative process for all studied non-violent criminal offenses
introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate
mens rea requirements are ubiquitous at all stages of the legislative process: Over 57 percent of the of-
fenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements,
putting the innocent at risk of criminal punishment. Compounding the problem, this study also found
consistently poor legislative drafting and broad delegation of Congress’s authority to make criminal law
to unaccountable regulators.
According to several scholars and legal researchers, Congress is criminalizing everyday conduct at
a reckless pace. This study provides further evidence in support of that finding. Members of the 109th
Congress proposed 446 non-violent criminal offenses and Congress enacted 36 of them. These totals do
not include the many offenses concerning firearms, possession or trafficking of drugs or pornography,
immigration violations, or intentional violence. The sheer number of criminal offenses proposed dem-
onstrates why so many of them were poorly drafted and never subjected to adequate deliberation and
oversight.
Even more troubling is the study’s finding that many of the criminal offenses Congress is enacting
are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with
adequate mens rea requirements, many of them are so vague, far-reaching, and imprecise that few lawyers,
much less non-lawyers, could determine what specific conduct they prohibit and punish.
These failings appear to be related to the reckless pace of criminalization. Congress is awash with crim-
inal legislation, and the House and Senate Judiciary Committees lack the time and opportunity to review
each criminal offense and correct weak mens rea requirements. Over half (52 percent) of the offenses in the
study were never referred to either judiciary committee. This is despite these committees’ special expertise
in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and
express jurisdiction over federal criminal law.
One encouraging finding is that oversight by the House Judiciary Committee does improve the qual-
ity of mens rea requirements. Oversight includes marking up a bill or reporting it out of committee for
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consideration by the full House of Representatives. Based upon this analysis, and upon the specific criminal
law jurisdiction and expertise of the House and Senate Judiciary Committees, automatic referral of all bills
adding or modifying criminal offenses to these two committees is likely to improve mens rea requirements.
More importantly, automatic referral could stem the tide of criminalization by forcing Congress to adopt
a measured and prioritized approach to criminal lawmaking. By neglecting the expertise of the judiciary
committees, Congress endangers civil liberties.
The study also revealed that Congress frequently delegates its criminal lawmaking authority to other
bodies, typically executive branch agencies. Delegation empowers unelected regulators to decide what
conduct will be punished criminally, rather than requiring Congress to make that determination itself. This
“regulatory criminalization” significantly increases the scope and complexity of federal criminal law, pre-
vents systematic congressional oversight of the criminal law, and lacks the public accountability provided
by the normal legislative process.
To begin to solve the problems identified in the study, this report offers five specific recommendations
for reform. Congress should:
1. Enact default rules of interpretation to ensure that mens rea requirements are adequate to
protect against unjust conviction.
Congress should enact statutory law that directs federal courts to grant a criminal defendant the ben-
efit of the doubt when Congress has failed to adequately and clearly define the mens rea requirements for
criminal offenses and penalties. First, this reform would address the unintentional omission of mens rea
terminology by directing federal courts to read a protective, default mens rea requirement into any criminal
offense that lacks one. Second, it would direct courts to apply any introductory or blanket mens rea terms
in a criminal offense to each element of the offense. In this way, it would improve the mens rea protections
throughout federal criminal law, provide needed clarity, force Congress to give careful consideration to
mens rea requirements when adding or modifying criminal offenses, and help ensure that fewer individuals
are unjustly prosecuted and punished.
2. Codify the common-law rule of lenity, which grants defendants the benefit of doubt when
Congress fails to legislate clearly.
The rule of lenity directs a court, when construing an ambiguous criminal law, to resolve the ambiguity
in favor of the defendant. In a recent U.S. Supreme Court decision, United States v. Santos, Justice Antonin
Scalia explained that this “venerable rule vindicates the fundamental principle that no citizen should be
held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment
that is not clearly prescribed.” Giving the benefit of the doubt to the defendant is consistent with the
traditional rules that all defendants are presumed innocent and that the government bears the burden of
How Congress Is Eroding the Criminal Intent Requirement in Federal Law xi

proving every element of a crime beyond a reasonable doubt. Codifying this venerable common-law rule
would serve the rights of all defendants at every stage of the criminal process. This reform would also
protect Congress’s lawmaking authority because it would restrict the ability of federal courts to legislate
from the bench and reduce the frequency with which those courts must speak because Congress has failed
to legislate clearly.
3. Require judiciary committee oversight of every bill that includes criminal offenses or
penalties.
Congressional rules should require every bill that would add or modify criminal offenses or penalties
to be subject to automatic referral to the relevant judiciary committee. A “sequential” referral requirement
would give the House or Senate Judiciary Committee exclusive control over a bill until it reports the bill
out or the time limit for its consideration expires, and only at that point could the bill move to another
committee. The judiciary committees have special expertise in crafting criminal offenses, knowledge of
the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law.
While automatic referral may not produce stronger, more protective mens rea requirements, it should result
in clearer, more specific, and higher quality criminal offenses. More importantly, this rule could help stem
the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal
lawmaking. Further, it would increase congressional accountability for new criminalization and ultimately
reduce overcriminalization.
4. Require detailed written justification for and analysis of all new federal criminalization.
This reform would require the federal government to produce a standard public report assessing the
purported justification, costs, and benefits of all new criminalization. This report must include:
• A description of the problem that the criminal offense or penalty is intended to redress, includ-
ing an account of the perceived gaps in existing law, the wrongful conduct that is currently
unpunished or under-punished, and any specific cases or concerns motivating the legislation;
• A direct statement of the express constitutional authority under which the federal government
purports to act;
• An analysis of whether the criminal offenses or penalties are consistent with constitutional and
prudential considerations of federalism;
• A discussion of any overlap between the conduct to be criminalized and conduct already crimi-
nalized by existing federal and state law;
• A comparison of the new law’s penalties with the penalties under existing federal and state laws
for comparable conduct;
• A summary of the impact on the federal budget and federal resources, including the judiciary,
of enforcing the new offense and penalties to the degree required to solve the problem that the
new criminalization purports to address;
• A review of the resources that federal public defenders have available and need in order to
adequately defend indigent defendants charged under the new law; and
xii WITHOUT INTENT

• An explanation of how the mens rea requirement of each criminal offense should be interpreted
and applied to each element of the offense.
This reform would also require Congress to collect information on regulatory criminalization, includ-
ing an enumeration of all new criminal offenses and penalties that federal agencies have added to federal
regulations, as well as the specific statutory authority supporting these regulations.
Mandatory reporting would increase accountability by requiring the federal government to perform
basic analysis of the grounds and justification for all new and modified criminal offenses and penalties.
5. Draft every criminal offense with clarity and precision.
One overarching reform recommendation is a slower, more focused, and deliberative approach to
the creation and modification of federal criminal offenses. When drafting criminal offenses, Members of
Congress should always:
• Include an adequate mens rea requirement;
• Define both the actus reus (guilty act) and the mens rea (guilty mind) of the offense in specific and
unambiguous terms;
• Provide a clear statement of whether the mens rea requirement applies to all the elements of the
offense or, if not, which mens rea terms apply to which elements of the offense; and
• Avoid delegating criminal lawmaking authority to regulators.
The importance of sound legislative drafting cannot be overstated, for it is the drafting of a criminal
offense that frequently determines whether a person acting without intent to violate the law and lacking
knowledge that his conduct was unlawful or sufficiently wrongful to put him on notice of possible criminal
liability will endure a life-altering prosecution and conviction—and lose his freedom.
It is equally important that Members of Congress resist the temptation to bypass the arduous task of
drafting criminal legislation by delegating it to unelected regulators. It is the legislative branch’s responsibil-
ity to ensure that no individual is punished if Congress itself did not devote the time and resources neces-
sary to clearly and precisely articulate the law giving rise to that punishment.
These five reforms would help ensure that every proposed criminal offense receives the attention due
whenever Congress determines how to focus the greatest power government routinely uses against its own
citizens: the criminal law. Coupled with increased public awareness and scrutiny of the criminal offenses
Congress enacts, these reforms would strengthen the protections against unjust conviction and prevent
the dangerous proliferation of federal criminal law. With their most basic liberties at stake, Americans are
entitled to no less.
How Congress Is Eroding the Criminal Intent Requirement in Federal Law xiii
2 WITHOUT INTENT
Without Intent
F ew protections against unjust criminal con-

viction and punishment are as essential as
ensuring that every criminal offense includes
a meaningful mens rea, or “guilty mind,” require-
ment.1 With rare exception, no person should be
to comply with specific regulatory or reporting
requirements. Unlike with crimes involving inher-
ently wrongful conduct, the conduct itself usually
does not justify the inference that a criminal de-
fendant knew that his acts were prohibited, that
convicted of a crime without the government hav- he intended to violate the law, or that he had any
ing proved that he acted with a guilty mind—that knowledge that his conduct was wrongful in any
is, that he intended to violate a law or knew that his
conduct was unlawful or sufficiently wrongful so as
With rare exception, no person should be convicted of
to put him on notice of possible criminal liability.
Absent a meaningful mens rea requirement, a defen- a crime without the government having proved that he
dant’s other legal and constitutional rights cannot acted with a guilty mind—that is, that he intended to
protect him from unjust punishment for making violate a law or knew that his conduct was unlawful
honest mistakes or engaging in conduct that he had
no reason to know was illegal. or sufficiently wrongful so as to put him on notice of
possible criminal liability.
For crimes involving inherently wrongful con-
duct—such as murder, arson, rape, theft, and rob- way. Therefore, to ensure that only persons who
bery—the law properly allows the inference of a are truly culpable can be convicted and punished,
guilty mind if the government proves that the con- the definitions of malum prohibitum offenses must
duct was committed voluntarily. With such crimes, include protective mens rea requirements. Unfor-
the law properly assumes that inherent wrongful- tunately, many of the thousands of malum prohibi-
ness forecloses the possibility of punishing individ- tum offenses in federal law do not.
uals who are not truly culpable.
This report presents the results of a study of
Many criminal offenses, however, lack that legislation containing criminal offenses introduced
kind of protection. Hundreds of federal statutory in a recent Congress. The study asked whether
offenses, and an estimated tens of thousands of Members of Congress included meaningful mens
federal regulatory offenses, criminalize conduct rea requirements in the scores of non-violent and
that is not inherently wrongful. Rather, such con- non-drug criminal offenses2 (hereinafter “non-vio-
duct is wrongful only because it is prohibited by lent offenses”) that Congress considered. Its results
law, or malum prohibitum. Malum prohibitum offens- are striking: Over 57 percent of the offenses consid-
es cover a broad range of conduct, such as failure ered by the 109th Congress contained inadequate
How Congress Is Eroding the Criminal Intent Requirement in Federal Law 1

mens rea requirements, putting the innocent at risk why so many of them were poorly drafted and
of criminal punishment.3 Compounding the prob- were never the subject of adequate deliberation
lem, this study also found consistently poor legis- and oversight.
lative drafting and broad delegation of Congress’s
authority to make criminal laws to unelected offi- Third, Congress’s choice to delegate its crimi-
cials in administrative agencies—that is, criminal- nal lawmaking authority to executive agencies has
ization by regulation. grown more common. This study identified at least
63 offenses that, if enacted, would hand over this
authority to unelected agency officials. That con-
The study asked whether Members of Congress included stitutes 14 percent of the offenses included in the
meaningful mens rea requirements in the scores of study. The study’s totals and percentages do not
non-violent and non-drug criminal offenses that Congress account for the many additional criminal offenses
that federal agencies would be authorized to create
considered. Its results are striking: Over 57 percent of
in this manner.
the offenses considered by the 109th Congress contained
inadequate mens rea requirements, putting the innocent One encouraging finding is that oversight by
at risk of criminal punishment. the House Judiciary Committee does improve
the quality of mens rea requirements. Oversight
includes the committee marking up a bill or re-
The study identified three main causes of porting it out of committee for consideration by
Congress’s failure to include meaningful mens rea the full House of Representatives. Based upon
requirements in criminal offenses. First, there is the this analysis, and upon the specific criminal law
fragmented and disjointed process for creating and jurisdiction and expertise of the House and Sen-
modifying criminal offenses. Despite the House ate Judiciary Committees, automatic sequential
and Senate Judiciary Committees’ expertise and referral4 of all bills adding or modifying criminal
subject-matter jurisdiction, over half (52 percent) offenses to these two committees is likely to im-
of the offenses in the study were not referred to prove mens rea requirements.
either committee for oversight.
The number of new criminal offenses pro-
Second is the flood of proposed criminal of- posed and enacted in the 109th Congress was by
fenses. Crafting offenses that properly channel gov- no means exceptional.5 The recent proliferation of
ernment’s power to impose criminal punishment federal criminal law has produced scores of crimi-
demands substantial debate and deliberation. Yet nal offenses that lack adequate mens rea require-
in the 109th Congress, so many bills (203) were ments and are vague in defining the conduct that
proposed containing so many non-violent offenses they criminalize. The study reported here supports
(446) that it is unreasonable to expect that any sub- the conclusion of a growing number of commen-
stantial proportion of these offenses could have re- tators and experts that the time has come for Con-
ceived adequate legislative oversight and scrutiny. gress to stop this dangerous trend, to acknowledge
These numbers would rise even higher if they in- the threat represented to individual and business
cluded the enormous number of bills containing civil liberties by this unprincipled form of crimi-
criminal offenses that concern firearms, possession nalization, and to carry out critical reforms to fed-
or trafficking of drugs or pornography, immigra- eral criminal law that will protect individuals and
tion violations, and intentional violence. The sheer businesses from the risk of unjust prosecution and
number of criminal offenses proposed demonstrates conviction.
2 WITHOUT INTENT
I. Criminal Punishment Requires Culpability and Fair Notice
The greatest power that any civilized govern- mens rea requirement has been a part of Anglo-
ment routinely uses against its own citizens is the American law for over six centuries,11 and requir-
power to prosecute and punish under criminal law. ing the government to prove that a defendant had
As Columbia law professor Herbert Wechsler fa- a guilty mind at the time she committed a guilty
mously put it, criminal law “governs the strongest act “is the rule of, rather than the exception to,
force that we permit official agencies to bring to bear the principles of Anglo-American criminal juris-
on individuals.”6 This necessarily distinguishes the prudence.”12 The Supreme Court has described
criminal law from all other areas of law and makes this principle as being “as universal and persistent
it uniquely susceptible to abuse and injustice. More in mature systems of law as belief in freedom of
than any other area of law, the criminal law, in its the human will and a consequent ability and duty
prohibitions and commands, as well as its power to of the normal individual to choose between good
punish, must be firmly grounded in fundamental and evil.”13 Because the federal criminal justice
principles of justice. Such principles are expressed system does not permit courts to define criminal
in both substantive and procedural protections. offenses under common law, defining the conduct
and mental state constituting a federal crime is the
One fundamental principle is embodied in the responsibility of Congress.14
doctrine of fair notice. The fair notice doctrine re-
quires that, in order for a person to be punished The traditional distinction between malum in se
criminally, the offense with which she is charged conduct and malum prohibitum conduct is essential
must provide adequate notice that the conduct in to a clear understanding of the modern role of mens
which she engaged was prohibited. The Supreme rea requirements. Conduct that is inherently evil or
Court has recognized that fair notice is a compo- wrongful is malum in se, or “evil in itself.” Histori-
nent of the Constitution’s due process protections. cally, malum in se offenses comprised the bulk of all
For example, in the course of reversing the convic- criminal offenses, such as murder, arson, theft, rob-
tions of civil rights protestors because the law un- bery, and rape. By their very nature, these acts are
der which they were convicted was “void for vague-
ness” (a species of the fair notice doctrine), the
Supreme Court stated: “No one may be required The fair notice doctrine requires that, in order for a
at peril of life, liberty or property to speculate as person to be punished criminally, the offense with which
to the meaning of penal statutes. All are entitled she is charged must provide adequate notice that the
to be informed as to what the State commands or
forbids.”7 It is thus a fundamental principle of due
conduct in which she engaged was prohibited.
process that “a criminal law must give fair warning
of the conduct it makes a crime.”8 wrongful, independent of their status under law.
Therefore, fair notice of illegality can reasonably
Related to fair notice is the principle that the be imputed to the average person. Clearly, no per-
government must prove both “an evil-meaning son who kills another intentionally, rather than by
mind” and “an evil-doing hand” before criminal accident or inadvertence, should be able to claim
punishment may justly be imposed.9 This dual ignorance of the law as a defense. With few excep-
requirement is typically referred to by the Latin tions, the average person can be presumed to know
terms mens rea and actus reus, which translate to that inherently wrongful acts are also unlawful.
“guilty mind” and “guilty act.” Whereas the actus
reus is generally objective and physical in nature, Conversely, malum prohibitum conduct is not
the mens rea is generally subjective and psycholog- inherently evil or necessarily wrongful, but rather
ical.10 Both are necessary in order to impose crimi- “prohibited evil.” Malum prohibitum offenses in-
nal punishment; neither alone is sufficient. The clude jaywalking, fishing without a permit, or

shipping products safely but in a manner incon- Accordingly, one of the critical functions served
sistent with federal or state regulations. Although by an adequate mens rea requirement is to protect
there may be legitimate reasons for prohibiting those who are reasonably mistaken about or un-
such conduct, the acts themselves, independent of aware of the law. As one travels along the continu-
the prohibition, are not inherently wrongful.15 um from pure malum in se conduct, such as murder,
towards entirely malum prohibitum conduct, such as
Historically, it was presumed that the law, and fishing without a permit, the fair notice provided
especially the criminal law, was “definite and know- by the conduct itself diminishes to the point of van-
able,”16 even by the average person. Ignorance of ishing. It is an obvious injustice to punish an indi-
the law was therefore no defense to criminal pun- vidual for conduct that is not inherently wrongful
ishment. The small number of criminal offenses, if she did not know, and had no reasonable prospect
and the fact that the majority of offenses criminal- of knowing, that her conduct was prohibited by
ized malum in se conduct, made this presumption law. This is why the principle that finding a person
both reasonable and just. criminally responsible requires a mens rea, or guilty
mind, and not just an actus reus, or guilty act, is
essential to a just system of criminal law. When
With over 4,450 federal statutory crimes and an the actus reus is one that is malum prohibitum, fair
estimated tens of thousands more in federal regulations, notice is diminished or eliminated, and the burden
neither criminal law professors nor lawyers who to compensate for that deficiency falls squarely
upon the mens rea requirement.
specialize in criminal law can know all of the conduct
that is criminalized. Ordinary individuals are at an When society, through its elected representa-
even greater disadvantage. tives, specifies the particular conduct and mental
state that constitute a crime, “it makes a critical
moral judgment about the wrongfulness of such
With the enormous growth in malum prohibi- conduct, the resulting harm caused or threatened
tum offenses, however, this presumption has be- to others, and the culpability of the perpetra-
come a trap for the unwary. As criminal law profes- tors.”19 Therefore, a proper and adequate mens rea
sor Joshua Dressler has stated: requirement should reflect the differences in cul-
pability that result when individuals with different
Whatever its plausibility centuries ago, the mental states engage in the same prohibited con-
“definite and knowable” claim cannot with- duct. This point is well illustrated by the differing
stand modern analysis. There has been a mens rea requirements that apply to homicide, or
“profusion of legislation making otherwise
the killing of a human being. Even with the same
lawful conduct criminal (malum prohibitum).”
bad act—a killing—different levels of mens rea de-
Therefore, even a person with a clear moral com-
pass is frequently unable to determine accurately fine different offenses, which carry different pun-
whether particular conduct is prohibited. Fur- ishments. Thus, in federal law, manslaughter is the
thermore, many modern criminal statutes unlawful killing of a human being “without mal-
are exceedingly intricate. In today’s complex ice” and carries a maximum sentence of 15 years
society, therefore, a person can reasonably be in prison.20 Murder in the second degree requires
mistaken about the law.17 “malice aforethought”21 and carries a maximum
sentence of life imprisonment.22 Murder in the
Indeed, with over 4,450 federal statutory crimes first degree requires both “malice aforethought”
and an estimated tens of thousands more in federal and that the killing be “willful, deliberate, mali-
regulations,18 neither criminal law professors nor cious, and premeditated”; it carries a maximum
lawyers who specialize in criminal law can know all sentence of death.23 Mens rea requirements such
of the conduct that is criminalized. Ordinary indi- as these not only help to assign appropriate lev-
viduals are at an even greater disadvantage. els of punishment, but also to protect from unjust
4 WITHOUT INTENT
Homicide Offense Mens Rea Requirement Maximum Penalty
Murder in the first degree (18 U.S.C. § 1111(a)) “malice aforethought” and “willful, Death
deliberate, malicious, and premeditated”
Murder in the second degree (18 U.S.C. § 1111(a)) “malice aforethought” Life imprisonment
Manslaughter (18 U.S.C. § 1112) “without malice” 15 years
criminal punishment those who committed pro- acting without intent to violate the law and lack-
hibited conduct accidentally or inadvertently. ing knowledge that her conduct was unlawful or
sufficiently wrongful so as to put her on notice of
Homicide presents a relatively straightforward possible criminal liability. A person who acts with-
example because the killing of a human being is so out such intent and knowledge does not deserve
grievous an act. Lesser wrongs may require even government’s greatest punishment or the extreme
more attention to the mens rea requirements associ- moral and societal censure such punishment car-
ated with them. The wrongful conduct at the heart ries. Especially today, when the number of malum
of many malum prohibitum offenses is falsehood or
deceit. Such conduct generally carries with it some
degree of culpability, but not everything that is a Mens rea requirements not only help to assign
“sin” is necessarily punishable as a crime.24 If all appropriate levels of punishment, but also to protect
“immoral” behavior were subject to criminal pun- from unjust criminal punishment those who committed
ishment, the only things protecting any individual
prohibited conduct accidentally or inadvertently.
from criminal conviction and punishment would
be chance and the whims of prosecutors. A crimi-
nal offense should require more than a mere act of prohibitum offenses in federal law has surged, care-
falsehood to ensure that only those who act with ful consideration must be given to the fundamen-
the degree of culpability meriting criminal punish- tal principles of culpability and fair notice when
ment can be convicted. defining the mens rea and actus reus that constitute
a federal crime. In the federal system, this critical
As the Supreme Court has recognized, “All are responsibility falls on the shoulders of Congress,
entitled to be informed as to what the State com- which must therefore engage in careful drafting,
mands or forbids.”25 By its own terms, a criminal deliberation, and debate before creating or modify-
offense should prevent conviction of an individual ing federal criminal offenses.
II. The Proliferation of Criminal Offenses with Inadequate

Mens Rea Requirements Undermines Federal Criminal Law
Congress routinely creates and amends federal new criminal provisions or increased criminal pen-
criminal offenses. Federal statutes alone include over alties.27 This knee-jerk tendency, and the resulting
4,450 criminal offenses, a number that does not take over-federalization of criminal law, is frequently
into account the thousands of criminal offenses dis- a product of political considerations.28 As a result,
persed throughout federal regulations.26 The almost practitioners, academics, and even the Department
inevitable response to any newsworthy problem is of Justice itself have struggled to document the ac-
the introduction of federal legislation containing tual number of federal statutory offenses.29

The sheer size of the federal criminal law is so sanctions…dispersed throughout the thousands of
great that no one has even been able to find and pro- administrative ‘regulations’ promulgated by various
vide a definitive count of the thousands of statutory governmental agencies under congressional statu-
criminal offenses in federal law. Several research- tory authorization. Nearly 10,000 regulations men-
ers, however, have made estimates of the number tion some sort of sanction, many clearly criminal in
of criminal offenses in federal statutes and reached nature, while many others are designated ‘civil.’”33
general conclusions about the nature of those of- Demonstrating the diffused and confusing nature
fenses. In 1998, the American Bar Association’s Task of federal criminal law, a “handful of regulations
purport to criminalize conduct without connecting
the prohibition to a congressional statute.”34
The sheer size of the federal criminal law is so great
that no one has even been able to find and provide a Ten years after the ABA Task Force report, a
definitive count of the thousands of statutory criminal study by Professor John S. Baker estimated that the
United States Code included at least 4,450 federal
offenses in federal law.
crimes at the end of 2007.35 Of these, 452 had been
added in the eight years from 2000 through 2007,
Force on the Federalization of Crime published a an average rate of 56.5 new crimes per year. This
report finding that federal criminalization had pro- rate, observed Baker, is
ceeded at a rapid pace since the Department of Jus-
tice had estimated, over 10 years earlier, that there roughly the same rate at which Congress cre-
were more than 3,000 crimes in the U.S. Code.30 It ated new crimes in the 1980s and 1990s…. So
found that, of the federal criminal provisions passed for the past twenty-five years, a period over
into law during the 132-year period from the end of which the growth of the federal criminal law
the Civil War to 1996, fully 40 percent were enacted has come under increasing scrutiny, Con-
gress has been creating over 500 new crimes
in the 26 years from 1970 to 1996.31 The ABA Task
per decade.36
Force explained, however, that
The rate at which Congress creates criminal offenses
an exact count of the present “number” of
increases during election years, Baker found.37 Al-
federal crimes contained in the statutes (let
alone those contained in administrative regu- though Baker’s study acknowledges the same diffi-
lations) is difficult to achieve and the count culties cited by the ABA Task Force in obtaining an
[is] subject to varying interpretations. In part, accurate count, the data demonstrate that, from 2000
the reason is not only that the criminal provi- through 2007, Congress created, on average, one
sions are now so numerous and their location new crime a week for every week of every year.38
in the books so scattered, but also that fed-
eral criminal statutes are often complex. One Beyond the rate at which new criminal offenses
statutory section can comprehend a variety of are being enacted, three additional concerns quick-
actions, potentially multiplying the number ly emerge when studying the legislative process for
of federal “crimes” that could be enumer- criminal offenses:
ated. (For example, the language of 18 U.S.C.
§ 2113 encompasses bank robbery, extortion, 1) Lack of attention paid to and erosion of
theft, assaults, killing hostages, and storing or mens rea requirements;
selling anything of value knowing it to have 2) Poor legislative drafting; and
been taken from a bank, etc.) Depending on
how all this subdivisible and dispersed law is 3) Delegation of criminal lawmaking author-
counted, the true number of federal crimes ity through regulatory criminalization.
multiplies.32
All three of these practices contribute to the prob-
Further complicating an accurate count, the lems of overbroad criminal liability and the lack of
ABA Task Force said, are the “large number of fair notice that the law is supposed to provide.
6 WITHOUT INTENT
The first, the erosion of mens rea requirements, of the elements of the offense or, if not, to which
has serious implications. As previously discussed, it elements it does apply.
is a fundamental principle of criminal law that, be-
fore criminal punishment can be imposed, the gov- Consider, for example, 18 U.S.C. § 1346, com-
ernment must prove both a guilty act (actus reus) and monly referred to as the “honest services fraud”
a guilty mind (mens rea). Despite this rule, omission statute, which defines the term “scheme or arti-
of mens rea requirements has become common- fice to defraud” to include “a scheme or artifice to
place in federal criminal statutes. Where Congress deprive another of the intangible right of honest
does include a mens rea requirement, it is often so services.” This definition applies to all the forms of
weak that it does not protect defendants from pun- fraud proscribed by Chapter 63 of the United States
ishment for making honest mistakes or engaging Code, including mail and wire fraud. The honest
in conduct that was not sufficiently wrongful to services fraud statute, if inserted into the definition
give notice of possible criminal responsibility. The of federal wire fraud, results in the following crimi-
resulting criminal offenses fail to satisfy the neces- nal offense:
sary and well-established principle that criminal li-
ability rests upon an “evil-meaning mind” and an Whoever, having devised or intending to de-
“evil-doing hand.”39 vise any scheme or artifice [to deprive another
of the intangible right of honest services]…,
transmits or causes to be transmitted by
If the erosion of mens rea requirements in fed-
means of wire, radio, or television commu-
eral criminal statutes were not sufficiently prob- nication interstate or foreign commerce, any
lematic in its own right, its harms are compounded writings, signs, signals, pictures, or sounds for
by poor legislative draftsmanship and regulatory the purpose of executing such scheme or ar-
criminalization. A mens rea requirement cannot tifice, shall be fined under this title or impris-
serve its purpose when its meaning or application oned not more than 20 years, or both.41
is not clear on the face of the statute. Worse, malum
prohibitum offenses, which constitute many of the Many legal experts have criticized this result-
criminal offenses in the federal code and almost all ing offense as being vague and overbroad. It fails
offenses created through regulation, often contain to define or limit the phrase “intangible right of
weak mens rea requirements or none at all. Absent honest services,” and more than 20 years after
a meaningful mens rea requirement, the principle the statute’s enactment, the federal courts of
of fair notice is lost when criminal punishment
is imposed for conduct that does not conform to
what reason or experience would suggest may be
A common result of poor legislative drafting is
illegal.40 uncertainty as to whether a mens rea term in a
criminal offense applies to all of the elements of the
Second, federal criminal offenses are frequently offense or, if not, to which elements it does apply.
drafted without the clarity and specificity that have
traditionally been required for the imposition of
criminal liability. As the ABA Task Force found, fed- appeals are hopelessly divided on how to interpret
eral criminal statutes often prohibit such exceed- this phrase. The only hope for resolution comes
ingly broad ranges of conduct, in language that is from the Supreme Court’s recent decision to hear
vague and imprecise, that few lawyers, much less three cases challenging charges brought and con-
non-lawyers, could determine what specific convictions obtained under the honest services fraud
duct they prohibit and punish. And even when the statute.42
actus reus is described with clarity, the mens rea re-
quirement may be imprecise. A common result of One example of poor draftsmanship found dur-
poor legislative drafting is uncertainty as to wheth- ing this study is an offense in S. 2509, the Nation-
er a mens rea term in a criminal offense applies to all al Insurance Act of 2006. Section 1713(b) of this

legislation would create several new criminal of- text of the offense, it appears that the insurer need
fenses relating to “insurance fraud.” One of these not have knowledge of this prohibition—much less
offenses reads: understand it—in order to be convicted and pun-
ished for violating it.
Any insurance person who is engaged in the
business of insurance who knowingly and in- In a recent case, Flores-Figueroa v. United States,
tentionally permits the participation described the Supreme Court considered the difficulties of
in paragraph (1) shall be fined as provided in interpretation caused by a poorly drafted mens
this title or imprisoned not more than 5 years, rea requirement in the federal aggravated iden-
or both.43 tity theft statute.46 The contested offense provides
an additional two years of imprisonment for any
The referenced paragraph, in turn, states: individual who, in the course of or in relation to
certain other felonies, “knowingly transfers, pos-
[A]ny individual who has been convicted of sesses, or uses, without lawful authority, a means
any criminal felony involving dishonesty or of identification of another person.”47 The offense’s
breach of trust, and who participates in the title, “Aggravated identity theft,” indicates that it is
business of insurance shall be fined…or im-
targeted at theft, which the law typically defines as
prisoned not more than 5 years, or both.44
an act by which a person obtains property belong-
ing to another with intent to deprive the owner of the
The phrase “business of insurance” is given a
value of the property and to appropriate it to his
broad definition by existing law.45 The term “par-
own use. The defendant in this case admitted that
ticipate,” however, is not defined by statute and
he intended to obtain identification numbers that
could be read to include the work or involvement
were phony, and pled guilty to crimes related to
of employees who have incidental contact with the
that intent, but he asserted that he had no knowl-
“business of insurance.” The phrase “dishonesty or
edge that the numbers on the identification cards
breach of trust” is also undefined and potentially
actually belonged to another person. The govern-
very broad. From the text of this offense, it seems
ment never contested that point. Instead, it argued
likely that an insurance agent who hires either a
that it need not prove “that the defendant knew that
the ‘means of identification’ he or she unlawfully
Remarkably, it is only after years of litigation and the transferred, possessed, or used, in fact, belonged to
‘another person.’”48
opinions of three different courts, including the highest
court in the land, that individuals, lawyers, and The Supreme Court rejected that argument,
holding that the statute requires the government
judges finally have a clear determination of what the
“to show that the defendant knew that the means
government is required to prove in order to impose of identification at issue belonged to another per-
criminal liability under this one-sentence criminal son.”49 The Court reached this conclusion based on
provision. its view of the basic rules of grammar and the most
natural meaning of the statute’s plain language.50
messenger to deliver insurance documents to a Citing Justice Alito’s concurring opinion, the
client or a surveyor who assists in evaluating real majority acknowledged, however, that “the inquiry
property would be at risk of criminal punishment into a sentence’s meaning is a contextual one.”51
if the messenger or surveyor had been convicted of Justice Alito’s opinion explained that when inter-
a felony for lying under oath in a domestic matter preting a criminal statute such as this, “it is fair to
20 years earlier. No one, however, could say for sure begin with a general presumption that the specified
with any degree of certainty, and even venturing an mens rea applies to all the elements of an offense,
opinion would, at a minimum, require significant but it must be recognized that there are instances in
research and analysis by a lawyer. Under the plain which context may well rebut that presumption.”52
8 WITHOUT INTENT
In support of this point, he cited two examples in of federal criminal law. In addition to the thousands
which the contextual features of particular statutes of criminal offenses spread through the 49 titles of
suggest that the defendant need not know particular the United States Code, according to estimates tens
elements of the crimes.53 Conversely, Justice Alito of thousands of criminal offenses are similarly scat-
observed that “the Government has not pointed to tered throughout the over 200 volumes of federal
contextual features that warrant interpreting [the regulations.57 These regulations almost always pro-
aggravated identity theft statute] in a similar way.”54 scribe conduct that is, at least in part, malum pro-
The majority agreed.55 Remarkably, it is only after hibitum. As a result, vast expanses of conduct are
years of litigation and the opinions of three differ- criminalized without any systematic congressional
ent courts, including the highest court in the land, oversight and without providing any form of notice
that individuals, lawyers, and judges finally have a to the ordinary person that his everyday activities
clear determination of what the government is re- may be subject to criminal punishment.
quired to prove in order to impose criminal liability
under this one-sentence criminal provision.
Congress delegates its criminal lawmaking authority by
The third problem, regulatory criminalization, passing a statute that establishes a criminal penalty for
occurs when Congress delegates its legislative au- the violation of any regulation, rule, or order promulgated
thority to define criminal offenses to another body, by an agency or an official acting on behalf of an agency.
typically an executive branch agency. Delegation
empowers the unelected officials who direct that
agency, such as the Department of the Treasury The practice of regulatory criminalization com-
or the Environmental Protection Agency, to decide pounds the problems created by unclear, imprecise
what conduct will be punished criminally, rather legislative drafting. Some or all of the elements
than requiring Congress to make that determina- of a particular criminal offense may be codified in
tion itself. In this way, the executive branch of the regulations far removed from the actual statute that
federal government plays a substantial role in caus- contains the mens rea requirement. Further, the ele-
ing overcriminalization, far beyond the President’s ments that make up the complete offense can be
constitutional authority to veto or sign legislation. spread across numerous regulations. For example,
section 506(g)(2) of H.R. 3968 would impose a crim-
In the usual case of regulatory criminalization, inal penalty on any person “who knowingly…vio-
Congress delegates its criminal lawmaking author- lates any other environmental protection require-
ity by passing a statute that establishes a criminal ment set forth in title III or any regulation issued by
penalty for the violation of any regulation, rule, or the Secretaries to implement this Act, any provision
order promulgated by the agency or an official act- of a permit issued under this Act (including any ex-
ing on behalf of that agency. Some of these pro- ploration or operations plan on which such permit
visions include mens rea terminology; for example, is based), or any condition or limitation thereof.”58
criminal responsibility might extend to “anyone While the mens rea requirement, “knowingly,” is
who knowingly violates any regulation.”56 Howev- located in the statutory provision, all of the prohib-
er, statutes authorizing regulatory criminalization ited conduct would be defined in any number of
often fail to include any mens rea terminology, and regulations and even individual permits issued as
nothing guarantees that the resulting criminal reg- part of the regulatory and statutory scheme.
ulations will themselves include a mens rea require-
ment, let alone adequate ones. A similar example can be found in the Lacey
Act,59 which imposes civil and criminal penalties
Beyond the constitutional concerns inherent for violations of any law, treaty, or regulation of
in this delegation of criminal lawmaking author- the United States or Indian tribal law concerning
ity, the actual practice of regulatory criminalization the taking of fish, wildlife, or plants. A sample of
significantly increases the scope and the complexity the statutory language establishing these criminal

offenses can be found in 16 U.S.C. § 3373(d)(1)(A), that language, located in the federal code, can be so
which provides a criminal penalty for any person far removed from the language in federal regulations
who “knowingly imports or exports any fish or defining the prohibited conduct that it is difficult to
wildlife or plants in violation of any provision of determine what mens rea requirement, if any, applies
this chapter,” and in 16 U.S.C. § 3372(a)(1), which to each element of the criminal offense.
states that “[i]t is unlawful for any person…to im-
port, export, transport, sell, receive, acquire, or pur- The explosive growth that federal criminal law
chase any fish or wildlife or plant taken, possessed, has undergone in recent decades should alone be
transported, or sold in violation of any law, treaty, sufficiently troubling to anyone in a free society.
or regulation of the United States or in violation of When coupled with the disappearance of adequate
any Indian tribal law.” Again, mens rea terminology mens rea requirements, the proliferation of poorly
is included in the original statutory provision, but drafted criminal offenses that are vague and over-
the specific prohibited conduct is spread across nu- broad, and the widespread delegation to unelected
merous laws, regulations, and even treaties. officials of Congress’s authority to criminalize, the
expanded federal criminal law becomes a broad
As these examples demonstrate, even when Con- template for the misuse and abuse of governmen-
gress includes a mens rea requirement in a statute, tal power.
III. Rationale and Summary of Methodology

A. Rationale for the Study of the 2) To determine whether any routine action
Legislative Process or stage in the federal legislative process
results in mens rea requirements that are
This study fills a quantitative gap, addressing more or less protective of individuals who
the increasing concern on the part of many aca- act without a sufficiently culpable mental
demics and experts60 over the number and scope state to warrant criminal punishment.
This study began with the working hypothesis

This study fills a quantitative gap, addressing the that debate and oversight of proposed legislation in
increasing concern on the part of many academics and the House and Senate Judiciary Committees might
experts over the number and scope of federal criminal improve the clarity of criminal offenses in bills
moving through Congress and strengthen their
offenses that lack adequate mens rea requirements. mens rea requirements. The judiciary committees
have special expertise in criminal law, criminal jus-
of federal criminal offenses that lack adequate mens tice legislation, and related matters, and according
rea requirements. The study pursued two primary to House and Senate rules, only the judiciary com-
objectives: mittees have express jurisdiction over criminal law
and punishment.
1) To determine whether the mens rea re-
quirements of non-violent criminal of-
In order to test this hypothesis, the study con-
fenses in bills enacted into law differ in
sidered two questions:
quality and protectiveness from the mens
rea requirements of non-violent criminal 1) How well do the mens rea requirements
offenses in the entire set of bills intro- in each offense studied protect innocent
duced; and actors, defined as those acting without
10 WITHOUT INTENT
intent to violate the law and lacking the analyses. For example, an offense having a mens
knowledge that their conduct is unlawful rea requirement falling between Weak and Mod-
or sufficiently wrongful to put them on erate is categorized in the online appendix as
notice of possible criminal liability? Weak-to-Moderate but is treated as Moderate for
all other purposes.
2) Is there a correlation between the protec-
tion afforded by a bill’s mens rea require-
ments and its enactment, passage by a The analysis and grading were based on the level of
chamber, or consideration by a judiciary
protection provided by the actual language of the offense
committee?
and were guided by Supreme Court decisions that set
This study considers a mens rea requirement forth (relatively) clear statements defining or interpreting
to be adequate if it is more likely than not to pre- the mens rea terminology most commonly used in
vent the government from punishing a person who
did not have a sufficiently culpable mental state federal statutes.
to justify such punishment—that is, if the person
did not know that her conduct was unlawful, did
The analysis and grading were based on the
not intend to violate a law, and did not engage in
level of protection provided by the actual language
conduct that was sufficiently wrongful to put her
of the offense and were guided by Supreme Court
on notice of possible criminal liability. As used in
decisions that set forth (relatively) clear statements
this report, the term “unlawful” means prohibited
defining or interpreting the mens rea terminology
by any law, whether that law is criminal, civil, or
most commonly used in federal statutes. When
administrative in nature. The analysis does not as-
assessing each offense, the study did not adopt the
sume that for criminal punishment to be imposed
perspective of how an ideal prosecutor would (or
a person must know that she violated a law that
would not) charge the offense and did not consid-
carries a criminal penalty.
er whether prosecutorial discretion might protect
potential defendants from unjust conviction. Simi-
larly, the study did not consider how an ideal court
B. Summary of Methodology would rule on a motion to dismiss or whether a
court would apply a limiting construction to an
The authors and their researchers analyzed offense (for example, the common-law rule of len-
the non-violent criminal offenses in 203 bills (128 ity) to aid a particular defendant.61
from the House and 75 from the Senate) intro-
duced during the course of the 109th Congress. The researchers also collected data on several
Because many of the bills included more than of the major actions that can be taken on legisla-
one criminal offense meeting the study’s criteria, tion by Congress (referral to a judiciary committee,
the number of criminal offenses included in the passage by a chamber, and enactment into law) and
study (446) is greater than the number of bills. by a judiciary committee (hearing, markup, amend-
Each offense’s mens rea requirement was analyzed ment, and reporting). The Heritage Foundation’s
and graded as Strong, Moderate, Weak, or None. Center for Data Analysis (CDA) then analyzed
If a mens rea requirement fell between two cat- whether statistical, and possibly causal, correlations
egories, it was assigned an intermediate grade, exist between these actions and the protectiveness
for example, None-to-Weak. However, in order of mens rea requirements.
to give the benefit of the doubt to congressional
drafting, these offenses were considered as having The Methodological Appendix included at the
the higher, more protective grade for the pur- end of this report provides a more complete de-
poses of this study’s data reporting and statistical scription of the study’s methodology.

IV. Mens Rea Data Analysis, Calculations, and Findings
This section presents a detailed explanation of Chart 1 reports the number and proportion of
the study’s analysis, including examples of offenses offenses in each mens rea category.
from each category, a description of the resulting
data, and the results of the statistical analyses. Chart 2 presents the data from Chart 1 broken
down by chamber.
A. Mens Rea Category Totals

Chart 2
The total numbers of offenses in each of the
four mens rea categories are summarized in Charts
Inadequate Mens Rea Requirements
1 and 2 below.
More Likely in House Bills
Sixty-two percent of offenses in House bills contained
inadequate mens rea requirements (None or Weak),
Chart 1 compared to 49 percent of offenses in Senate bills.
Majority of Offenses Had Inadequate Studied Offenses in the House (277 Total)
Mens Rea Requirements 50%
62.1%
Of the 446 studied offenses, 255 (57 percent) were 40%
categorized as having either None or Weak mens rea
requirements. 32.5%
29.6% 30.0%
30%
Studied Offenses, by Mens Rea Grade
57.1% 20%
35%
34.8%
31.8% 10% 7.9%
30%
0%
25.3% None Weak Moderate Strong
25%
Total
Offenses 82 90 83 22
20%
Studied Offenses in the Senate (169 Total)

15%
50%
49.1% 42.6%
10% 8.1%
40%
5%
30.8%
30%
0%
None Weak Moderate Strong
Total 18.3%
20%
Offenses 113 142 155 36
Mens Rea Grade, by Congressional Chamber 10% 8.3%

None Weak Moderate Strong Total
House 82 90 83 22 277 0%
Senate 31 52 72 14 169 None Weak Moderate Strong

Total
Total 113 142 155 36 446 Offenses 31 52 72 14
Source: Calculations by The Heritage Foundation and the National Source: Calculations by The Heritage Foundation and the National
Association of Criminal Defense Lawyers. Association of Criminal Defense Lawyers.
12 WITHOUT INTENT
Almost three-fifths (57 percent) of all offenses percent higher than the rate for all bills introduced
studied had inadequate (None or Weak) mens rea rein the 109th Congress. In light of Congress’s docu-
quirements. By chamber, 62 percent of the House mented propensity for enacting criminal offenses,
offenses and 49 percent of the Senate offenses had this may suggest that Congress is more likely to
inadequate mens rea requirements. Just slightly pass a bill if it contains non-violent offenses or, con-
more than 8 percent of all offenses studied had versely, that Members of Congress are more likely
protective, properly drafted mens rea requirements to add non-violent offenses to bills that Congress
(Strong). The remainder of the offenses fell into the is likely to pass. This study did not attempt to sub-
Moderate category, meaning that they provide an stantiate either of these hypotheses.
intermediate level of protectiveness against unjust
criminal punishment.
The data may suggest that Congress is more likely to pass
As discussed above, this study analyzed the a bill if it contains non-violent offenses or, conversely, that
entire sample of proposed offenses in order to de- Members of Congress are more likely to add non-violent
termine whether specific legislative actions might offenses to bills that Congress is likely to pass.
improve or undermine mens rea requirements. Al-
though enactment may seem the most important
part of the process, Congress typically enacts only Chart 3 illustrates the substantial consistency
a small percentage of all bills introduced. For ex- of the strength of mens rea requirements through
ample, in the 110th Congress, 11,081 bills were the legislative process, from initial proposal to
introduced, of which only 442 (4.0 percent) were enactment into law. This answers in the affirma-
enacted into law. In the 109th Congress, 10,537 bills tive two of the study’s questions: (1) an analysis
were introduced, of which 464 (4.4 percent) were of the mens rea requirements in all non-violent of-
enacted into law.62 fenses introduced in a single Congress is a sound
basis for studying the entire legislative process for
Of the 203 bills studied, 13 (6.4 percent) were such offenses; and (2) each stage of the congres-
enacted into law, an enactment rate that is 45 sional process warrants review and re-evaluation
Chart 3
Mens Rea Requirements: Proposed vs. Enacted Offenses
Proposed Offenses (446 Total)
Offenses, by Mens Rea Grade Enacted Offenses (36 Total)
40%
38.9%
34.8%
35%
31.8% 30.6%
30%
25.3% 25.0%
25%
20%
15%
10% 8.1%
5.6%
5%
0%
Total None Weak Moderate Strong

Offenses 113 9 142 14 155 11 36 2
Source: Calculations by The Heritage Foundation and the National Association of Criminal Defense Lawyers.

to ensure that Congress does not continue to create wrongful so as to put him on notice of possible
offenses that put innocent actors at risk of crimi- exposure to criminal responsibility.
nal punishment.
An example of an offense in the None category
is found in H.R. 3192, the Paid Family and Medi-
B. A Study of Each Mens Rea Category cal Leave Act of 2005.63 Section 107(1) of that bill
Through Example Offenses states that whoever “makes or causes to be made
any false statement in support of an application for
To provide further insight into the meaning benefits” under the federal Family Medical Insur-
of the data presented above, this section provides ance Program is guilty of a felony. On its face, the
examples of offenses typical of each category. use of the phrase “false statement” in the offense
While the numbers alone make a powerful state- suggests that the government must prove that the
ment, they take on even greater significance in the defendant acted with mens rea before criminal liabil-
context of typical offenses. ity can be imposed. That would indeed be the case
if this offense were rewritten to include, for exam-
1. Offenses in the None Mens Rea Category ple, a blanket or introductory mens rea term—i.e.,
“whoever knowingly makes or causes to be made
The 113 non-violent offenses in the None cat- any false statement in support of an application
egory, which represent 25 percent of the 446 non- for benefits.” So drafted, the offense would require
violent offenses introduced in the 109th Congress, the government to prove that the defendant knew
do not require a prosecutor, court, or jury to en- that the statement was false (and possibly also that
gage in a meaningful consideration of a criminal it was made in connection with an application for
defendant’s mental state. The defendant’s knowl- benefits).
edge, intent, misperceptions, mistakes, or accidents
are essentially irrelevant to his innocence or guilt. The actual offense defined by section 107(1),
In the online appendix to this report, many of these however, includes no mens rea requirement and is,
in fact, a strict liability offense. The government
need prove only that a defendant made or “caused
The 113 non-violent offenses in the None category, which to be made” a statement, that the statement was
represent 25 percent of the 446 non-violent offenses made “in support of ” a Family Medical Insurance
Program application, and that the statement was in
introduced in the 109th Congress, do not require a
fact false. If, for example, a man listed an incorrect
prosecutor, court, or jury to engage in a meaningful date of birth for one of his stepchildren, or a wom-
consideration of a criminal defendant’s mental state. an entered the wrong year when asked for her date
of hire, these “false statements” would put them at
risk of conviction. According to the express terms
offenses are referred to as “strict liability” offenses of this offense, the government need not prove that
because they do not include any mens rea termi- an applicant’s false statement was material to eli-
nology or requirements. Although some of the gibility for benefits, that the applicant intended to
offenses in the None category omit all traditional defraud anyone, or even that the applicant knew
criminal law mens rea terminology and instead the statement to be false. As with all strict liability
rely on tort-law terminology, such as “should have offenses, the government need not prove that the
known,” “reasonably should have known,” or “neg- defendant knew anything at all. For these reasons,
ligently,” for imposing criminal punishment, these this offense is categorized as None.
terms provide little or no protection to the unwary.
Nothing in the language of an offense categorized A second example of an offense in the None
as None prevents conviction of a defendant who category is found in section 2(c) of S. 3506, the
did not intend to violate a law and who did not Data Theft Protection Act.64 That provision states:
know that his conduct was unlawful or sufficiently “It shall be unlawful for any person to use a means
14 WITHOUT INTENT
of identification or individually identifiable health The Stolen Valor Act of 2005 (S. 1998), which
information obtained directly or indirectly from a was enacted into law in December 2006, includes
Federal database in furtherance of a violation of a typical Weak offense. The act amended existing
any Federal or State criminal law.” It might appear law such that it is now a federal crime to, among
that the final clause, requiring the conduct to be car- other things, “knowingly” buy, sell, mail, ship, bar-
ried out “in furtherance of a violation of ” another ter, “or exchange[ ] for anything of value” a wide
criminal law, provides the protection of a mens rea variety of military decorations, badges, and med-
requirement. However, nothing in the statute re- als.65 The bill’s findings indicate that its purpose is
quires the defendant to know that the conduct pro- to prevent fraudulent uses of and claims about U.S.
hibited was in fact “in furtherance of [another] vio- military decorations—for example, falsely claiming
lation” of Federal or State criminal law.
Similarly, while it might appear that the defen- This study determined that 142 of the 446 offenses (just
dant is protected by the offense’s requirement that under 32 percent) had Weak mens rea requirements.
there was in fact another “violation…of Federal or
State criminal law,” nothing in this offense requires
that the other violation of federal or state law be to be the recipient of the Congressional Medal of
committed by the person who “uses” the personally Honor or Purple Heart—thereby preserving the
identifiable health information. Thus, a healthcare “reputation and meaning of such decorations and
provider who uses personally identifiable informa- medals.”66 But the offense is not limited to fraudu-
tion obtained indirectly from a federal database to lent conduct. It is written so broadly and with such
answer questions by a person impersonating an em- weak mens rea protections that it would reach many
ployer or another health-care provider could, under acts by perfectly legitimate historians and collectors
the language of this offense, be subjected to crimi- who deal in these military decorations.67 Under its
nal punishment. Though this offense may appear, terms, even heirs of a solider who transfer his deco-
at first glance, to provide a mens rea requirement or rations or medals among themselves in exchange
at least some protection for those who act without for other property in the soldier’s estate would risk
mens rea, it in fact provides neither. imprisonment.
2. Offenses in the Weak Mens Rea Category The Stolen Valor Act’s only mens rea require-
ment is that the person charged must have “know-
An offense is categorized as Weak if its lan- ingly” engaged in the prohibited conduct. As the
guage is reasonably likely to protect from convic- U.S. Supreme Court has recognized, “‘[U]nless the
tion at least some defendants who did not intend text of the statute dictates a different result, the
to violate a law and did not have knowledge that term ‘knowingly’ merely requires proof of knowl-
their conduct was unlawful or sufficiently wrong- edge of the facts that constitute the offense.’”68
ful to put them on notice of possible criminal re- “The term ‘knowingly,’” the Court stated in Bryan
sponsibility. The offenses in this category cannot v. United States, “does not necessarily have any ref-
be characterized as strict liability because they erence to a culpable state of mind or to knowledge
include some mens rea requirement and, thereof the law.”69 Consequently, the offense created by
fore, proof of a defendant’s culpable mental state the Stolen Valor Act provides inadequate protec-
before criminal punishment can be imposed. Un- tion against criminal conviction and punishment
like those offenses in the None category that have for those who buy, sell, exchange, or ship a mili-
express mens rea requirements but use tort-law tary decoration, badge, or medal without any in-
terminology, the offenses in the Weak category tention of making or furthering a fraudulent claim
mostly employ traditional criminal-law mens rea of valor. Although the offense’s mens rea require-
terminology. This study determined that 142 of ment provides some protection, that protection is
the 446 offenses (just under 32 percent) had Weak inadequate. Accordingly, this offense is categorized
mens rea requirements. as Weak.

Another example of a Weak mens rea provision by this offense makes it more like the offenses that
is found in H.R. 3968, the Federal Mineral Devel- are typical of the None category than those of the
opment and Land Protection Equity Act of 2005. Weak category.
Section 506(g)(2) of the bill states that whoever
“knowingly…violates any other environmental As illustrated by these examples, the great ma-
protection requirement set forth in title III [of this jority of offenses that fall into the Weak category
Act] or any regulation issued by the Secretaries to rely exclusively on the term “knowingly” as a blan-
implement this Act, any provision of a permit is- ket or introductory mens rea requirement. In recent
sued under this Act (including any exploration or years, the Supreme Court has stated that the term
operations plan on which such permit is based), or “knowingly” requires the government to prove
any condition or limitation thereof, shall” be crimi- only that the defendant had knowledge of the facts
nally punished.70 The offense’s mens rea element, constituting the offense,74 thus excluding only ac-
“knowingly,” requires the government to prove cidental or inadvertent conduct. This is insufficient,
that the conduct constituting the violation was not however, to protect those lacking knowledge of
accidental or inadvertent. However, “knowingly” wrongdoing and acting without intent to do any-
does not necessarily require “a culpable state of thing unlawful or even wrongful in part. Weak mens
mind or…knowledge of the law,”71 nor does it re- rea requirements allow for, and inevitably result in,
quire a showing that the violation resulted in any unjust prosecutions and convictions.
harm. Accordingly, this offense is graded as Weak
because it offers little or no protection to those who For that reason, it is disturbing that offenses
are unaware of the law or those who, in good faith, with Weak mens rea requirements are the second
attempt to comply with it but are unable to do so. most common choice of federal legislators pro-
posing non-violent criminal offenses. Even more
disconcerting is the fact that the number of of-
Offenses in the None category combined with offenses fenses in the None category combined with the
in the Weak category comprise more than half of all the number of offenses in the Weak category com-
prise more than half of all the offenses in this
offenses in this study. Such offenses are wholly inadequate study. Offenses in the Weak or None categories
to prevent unjust prosecutions and convictions. are wholly inadequate to prevent unjust prosecu-
tions and convictions.
Whereas this offense is graded as Weak for the 3. Offenses in the Moderate Mens Rea Category
purposes of this study’s data and statistical analy-
ses, it is described in the report’s online appendix as The number of offenses in the Moderate cat-
None-to-Weak. This is because the offense autho- egory is slightly greater than the number of Weak
rizes executive branch officials to engage in regu- offenses. Approximately one-third of the studied of-
latory criminalization.72 Though its text contains fenses, 155 of 446, have mens rea requirements that
a mens rea requirement, most of the prohibited place them in the Moderate category. The language
conduct would be defined by unelected officials of an offense categorized as Moderate is more
in regulations and even individualized mining per- likely than not to prevent an individual from being
mits.73 Blanket criminalization of all regulatory and found guilty if he did not intend to violate a law
permit violations effectively diminishes the protec- and did not know that his conduct was unlawful or
tiveness of the statute’s mens rea requirement and sufficiently wrongful so as to put him on notice of
reduces the likelihood that potential defendants possible criminal responsibility. Nevertheless, such
will be on notice of the requirements and prohibi- an individual could be convicted under an offense
tions that they must observe. Therefore, despite the categorized as Moderate because of, for example,
presence of a mens rea term, the broad and indeter- inconsistent judicial interpretation and application
minate class of conduct that would be criminalized of the mens rea terms it uses.
16 WITHOUT INTENT
One example of a Moderate offense is in sec- in H.R. 4572 falls between Weak and Moderate
tion 2(a) of H.R. 4148, the Federal Disaster Profi- because it incorporates a large, open-ended set
teering Prevention Act of 2005. This section proof regulatory violations. Thus, even experts in ex-
vides criminal penalties for “[w]hoever, in a matter port law would have a difficult time being aware
involving a contract with the Federal Government of all of the regulations under which criminal
for the provision of goods or services, directly or in- punishment might be imposed. Yet some courts
directly, in connection with relief or reconstruction might conclude that individuals performing ac-
efforts provided in response to a presidentially de- tions covered by the Export Administration Act
clared major disaster or emergency, knowingly and
willfully…falsifies, conceals, or covers up by any
trick, scheme, or device a material fact.”75 Based on Approximately one-third of the studied offenses, 155 of
Supreme Court precedent, this “willfully” require- 446, have mens rea requirements that place them in the
ment should prevent the conviction of many or Moderate category.
most defendants who did not know that their con-
duct was unlawful or sufficiently wrongful.76 But as
the Court itself has observed, “willful” is a word of have a duty to know all Export Administration
many meanings, and its construction is often influ- Act regulations and therefore impute construc-
enced by its context.77 Federal courts therefore do tive knowledge of any unlawfulness to the indi-
not apply a standard meaning to “willfully.” It is pri- vidual because he knew that the field is heavily
marily for this reason that offenses using “willfully” regulated. Wholesale incorporation of regula-
as a blanket or introductory mens rea requirement, tions into criminal offenses thereby undermines
with nothing more, are categorized as Moderate the protectiveness of mens rea requirements. For
rather than Strong. this reason, H.R. 4572 is categorized in the on-
line appendix as Weak-to-Moderate, not simply
Another example of a Moderate offense is in Moderate.
section 5 of H.R. 4572, the Export Administration
Renewal Act of 2005. This offense provides that Blanket or introductory uses of the mens rea
“[a]ny individual…who willfully violates, conspires term “willfully” make up the great majority of the
to violate, or attempts to violate any provision of offenses categorized as Moderate. The offenses in
this Act or any regulation, license, or order issued this category would provide an uncertain amount
under this Act shall be fined up to 10 times the val- of protection for defendants charged under them
ue of the exports involved or $1,000,000, which- because of the inconsistency with which courts in-
ever is greater, imprisoned for not more than 10 terpret and apply the term “willfully.”
years, or both, for each violation.”78 This offense
is graded Moderate because, as in the preceding 4. Offenses in the Strong Mens Rea Category
example, the blanket or introductory usage of the
“willfully” requirement should prevent the convic- The language of an offense categorized as
tion of most defendants who did not intend to vio- Strong is highly unlikely, absent substantial misin-
late the law and did not know their conduct was terpretation, to permit the conviction of a person
unlawful or sufficiently wrongful so as to put them who did not intend to violate a law and did not have
on notice of criminal responsibility. But this mens knowledge that his conduct was unlawful or suffi-
rea requirement cannot be relied upon to provide ciently wrongful to put him on notice of possible
adequate protection for all such defendants be- criminal responsibility. Virtually every criminal of-
cause federal courts do not apply a standard mean- fense that Congress passes or even considers should
ing to “willfully.” include mens rea requirements that are this protec-
tive. It is therefore of significant concern that only
This offense is not, however, strictly Moderate. a small percentage of the studied offenses fall into
Rather, the strength of the mens rea requirement this category.

One example of an offense in the Strong cat- intent of preventing or impeding an individual from
egory is in H.R. 5188, Jane’s Law, which criminal- voting. If an inattentive truck driver, for example,
izes evasion of court-ordered child support pay- crashes while delivering voting machines and de-
ments. The offense in section 2(a) states: stroys them, he might be charged under state law
for reckless driving, depending on the circumstanc-
Whoever knowingly, travels in interstate or es. But unless evidence shows that the truck driver’s
foreign commerce, with the intent to evade actual intent was to prevent voting, it would be a
compliance with a court ordered property misapplication of the plain language of this offense
distribution as part of a separation or divorce for him to be convicted under it. This is because the
settlement involving more than $5000, with mens rea requirement in the offense properly restricts
respect to a spouse or former spouse, shall
its application to the behavior it is intended to pun-
be fined under this title or imprisoned for not
ish: intentionally preventing citizens from voting.
more than two years or both.79
Absent that specific intent, criminal punishment is
The introductory mens rea term, “knowingly,” unlikely to be imposed.
can be relied upon to provide protection against
conviction for inadvertences. But the key to the A final example illustrating one “best practice”
strength of the overall mens rea requirement is approach to fashioning strong mens rea require-
the phrase “with the intent to evade compliance ments is in section 515(b) of H.R. 1295, the Re-
with a court ordered property distribution.” It sponsible Lending Act. This offense includes both
is difficult to imagine a scenario in which a per- a blanket or introductory “willfully” mens rea term
son could, without knowledge that such action is and a specific requirement that, for culpability to
attach, an individual must know that he is acting in
violation of the law: “It shall be unlawful to will-
Virtually every criminal offense that Congress passes or fully disclose to any person any information con-
even considers should include mens rea requirements that cerning any person who is a mortgage broker or is
applying for licensing as a mortgage broker know-
would be categorized as Strong, but fewer than one out of
ing the disclosure to be in violation of any provi-
every 12 of the offenses in this study was so categorized. sion of this title (a) requiring the confidentiality
of such information; or (b) establishing a privilege
unlawful, act with intent to evade an order from from disclosure….” Because of the proper use of
the court. The court order referenced in this of- the “willfully” and “knowing” terms, this offense is
fense is a directive of law handed down from the categorized as Strong.
court to the defendant, and thus the inclusion of
this phrase in this offense requires the person to Despite these salutary examples, fewer than
act with a specific intent to violate the law. For this one out of every 12 of the offenses in this study
reason, the offense in H.R. 5188 is categorized as contained mens rea requirements protective enough
Strong. to be categorized as Strong. This may be due to the
difficulty and occasional linguistic awkwardness
S. 414, the Voter Protection Act of 2005, con- involved in drafting a protective mens rea require-
tains another example of an offense categorized as ment. It might also be caused by Members of Con-
Strong. Section 303 states that whoever “destroys gress (and the public) overlooking the possible in-
or damages any property with the intent to prevent justices resulting from criminal laws that are vague
or impede an individual from voting in an election and overbroad, that fall short of providing fair no-
for” federal office is guilty of a federal crime.80 Prop- tice, and that fail to require a level of culpability
erly applied, the mens rea phrase “with the intent sufficient to justify criminal punishment. Never-
to” should protect from conviction anyone who ac- theless, fundamental principles of justice mandate
cidentally damages voting equipment without the that nearly all of the non-violent criminal offenses
18 WITHOUT INTENT
in this study should have included a Strong mens
rea requirement. Chart 4
Less than Half of Offenses Were
In summary, the study’s categorization analysis Referred to Judiciary Committees
found that: Percentage of Offenses in Study Referred
to Respective Judiciary Committee
• Almost three-fifths of all non-violent of-
60%
fenses proposed had inadequate (Weak 54.5%
or None) mens rea protections; 50% 48.0%
• Fewer than one out of every 12 offenses
40% 37.3%
contained protections that are fully ad-
equate to protect against unjust convic- 30%
tion (Strong); and
• One out of every three offenses had 20%
mens rea requirements inhabiting a mid-

10%
dle ground (Moderate), leaving open the
possibility of conviction of those whose 0%
level of culpability does not warrant Total House Senate Total
criminal punishment. Offenses 151 of 277 63 of 169 214 of 446
Source: Calculations by The Heritage Foundation and the National
Association of Criminal Defense Lawyers.
C. The Reliance on Judiciary Committee
Oversight
“legislation related to criminal justice.”81 Further,
Despite the special expertise and jurisdiction the Rules of the Senate provide that to the Senate
of the House and Senate Judiciary Committees Judiciary Committee “shall be referred all proposed
over matters of criminal law and criminal justice, legislation, messages, petitions, memorials, and
Chart 4 demonstrates that more than half of the other matters relating to…[j]udicial proceedings,
studied offenses were not referred to either com- civil and criminal, generally.”82 The rules grant ex-
mittee for oversight. press authority over criminal justice matters to no
other Senate committee. Nevertheless, over 62 per-
As Chart 4 shows, only 214 (48.0 percent) of cent of the studied offenses that were introduced
the 446 offenses studied were in bills that were in the Senate received little or no oversight from
referred to the respective judiciary committee. the Senate Judiciary Committee and did not benefit
While nearly 55 percent of the 277 House offens- from its special expertise.
es were referred to the House Judiciary Commit-
tee, only 37 percent of the 169 Senate offenses As discussed above, this study sought to deter-
were referred to the Senate Judiciary Commit- mine whether oversight by the judiciary commit-
tee. This is despite these committees’ special ex- tees correlated with stronger mens rea requirements
pertise in crafting criminal offenses, knowledge in the studied offenses.83 Thus, in addition to pas-
of the priorities and resources of federal law en- sage and enactment, five different congressional
forcement, and express jurisdiction over federal actions (judiciary committee referrals, hearings,
criminal law. markups, amendments, and reports) were tested
to determine whether such correlations existed.
For example, since its creation in 1816, the Sen- These calculations and their results are discussed
ate Judiciary Committee has had jurisdiction over further below.

D. Identifying the Effect of Congressional
Actions on Mens Rea Requirements Table 1
Studied Offenses Passed and Enacted
The Heritage Foundation’s CDA analyzed the
Offenses Passed Offenses
study’s data to determine whether a statistically Originating by Originating Enacted
significant correlation existed between the strength Chamber Chamber into Law
of mens rea requirements in offenses and congres- House 49 28
sional actions taken on the bills containing those Senate 21 8
offenses. If a statistically significant correlation ex- Total 70 36
ists between the strength of mens rea requirements % of All Studied Offenses 15.7% 8.1%
and a congressional action, it could be positive or Source: Calculations by The Heritage Foundation and the National
negative. If, for example, there were a negative cor-
relation between the strength of mens rea require-
ments and enactment into law, that would suggest
or enacted in the 109th Congress were weaker or
that a criminal offense’s mens rea requirement is
stronger than the mens rea provisions in all proposed
likely to be weaker if the bill of which it is a part
non-violent offenses.
is passed by both chambers and signed into law by
the president. Conversely, a positive correlation be-
Other tests did, however, reveal statistically
tween the strength of mens rea requirements and
significant correlations. The CDA found that the
some congressional action might suggest that that
strength of the mens rea requirements in a bill in-
action serves to strengthen mens rea protections or
troduced in the House has a weak, positive corre-
that bills containing stronger mens rea protections
lation with that bill’s being (a) marked up by the
are more likely to be subject to that action.
House Judiciary Committee or one of its subcom-
mittees and (b) reported out of the House Judiciary
The CDA conducted several types of statistical
Committee for consideration by the full House of
calculations to look for such correlations. The first
Representatives. Put differently, if a bill was marked
two variables it tested for possible correlations were
up by the House Judiciary Committee or one of
whether a bill was (1) passed by its respective con-
its subcommittees, reported by the House Judicia-
gressional chamber and (2) enacted into law. The
ry Committee for consideration by the full House
data on these two actions are presented in Table 1.
of Representatives, or both, the bill’s non-violent
criminal offenses tended to have stronger, more
protective mens rea requirements.
If a bill was marked up by the House Judiciary Committee
or one of its subcommittees, reported by the House On the Senate side, however, no statistically
Judiciary Committee for consideration by the full significant correlations were found between the
strength of mens rea requirements and any action
House of Representatives, or both, the bill’s non-violent
taken by the Senate Judiciary Committee or its sub-
criminal offenses tended to have stronger, more protective committees.
mens rea requirements.
When the data for the House and Senate bills
are aggregated and analyzed together, a weak but
The CDA found no statistically significant cor- statistically significant positive correlation appears
relation between whether a bill was passed by its between the strength of the studied offenses’ mens
originating chamber or enacted into law and the rea requirements and their bills being marked up by
strength of the mens rea requirements in the bill’s or reported out of either the House Judiciary Com-
offenses. In other words, this study’s data provide mittee or the Senate Judiciary Committee. In other
no statistical evidence that the mens rea provisions words, legislation that was marked up or reported
in non-violent offenses passed by one chamber out by either judiciary committee tended to contain
20 WITHOUT INTENT
stronger mens rea requirements than bills not sub-
ject to these actions. This finding, however, appears Table 2
to reflect the correlation identified above involving
actions taken by the House Judiciary Committee,
Regulatory Criminalization by Chamber
and so does not contradict the failure to find any Of the 36 studied offenses that were enacted into law,
correlations involving actions taken by the Senate eight (22 percent) delegated criminal lawmaking author-
ity to unelected regulators.
Judiciary Committee.
Introduced Passed Enacted
Finally, Heritage’s CDA tested whether each House 41 of 277 9 of 49 5 of 28
(14.8%) (18.4%) (17.9%)
of the other three judiciary committee actions re-
Senate 22 of 169 3 of 21 3 of 8
corded (referral to a judiciary committee, hearing, (13.0%) (14.3%) (37.5%)
and amendment) was correlated with the strength Total 63 of 446 12 of 70 8 of 36
of mens rea requirements. It found no statistically (14.1%) (17.1%) (22.2%)
significant relationships.84 Source: Calculations by The Heritage Foundation and the National
E. The Regulatory Criminalization

Problem Congress, but by unelected and less accountable
agency officials.
As part of the individual assessment of the
studied offenses, the authors determined whether This result has significant ramifications. When
Congress itself articulated the actus reus and mens Congress enacts a single offense authorizing regu-
rea of the offense or if Congress sought, in the latory criminalization, it effectively attaches crimi-
statutory language of “the offense,”85 to delegate nal penalties to regulations, rules, and orders that
that responsibility to an unelected agency, body, may not yet have been contemplated, let alone
or individual acting on behalf of such an agency
or body. The authors endeavored to make note of
every offense that included regulatory criminal- Nearly one-quarter of the enacted offenses allow
ization in order to determine the frequency with additional criminal offenses to be created, not by Congress,
which Congress attempts to delegate its criminal but by unelected and less accountable agency officials.
lawmaking authority. The resulting data under-
score concerns that have been raised about regu-
latory criminalization.86 drafted and made into law. A single criminal offense
may serve as the authority for any number of ad-
Table 2 presents this data, broken down by ditional, regulatory criminal offenses. Whereas the
chamber and by three legislative actions (intro- ABA Task Force in 1998 and Professor John Baker
duction, passage, enactment). Of the 446 studied in 2008 reported scholarly estimates of the num-
offenses, 63 (14 percent) authorized regulatory ber of criminal offenses in federal statutes, both ac-
criminalization. The percentage of offenses au- knowledged that, at a minimum, there are tens of
thorizing regulatory criminalization is even great- thousands of additional criminal offenses in federal
er among those offenses passed by one chamber regulations.87 Regulatory criminalization thus has
(17 percent) or enacted into law (22 percent). profound implications for the problem of how to
Nearly one-quarter of the enacted offenses allow ensure individuals and businesses receive fair notice
additional criminal offenses to be created, not by of what conduct can be punished criminally.

V. Conclusions on the Legislative Process
The primary conclusion of this report is that A. Mens Rea Requirements Are
non-violent criminal offenses lacking adequate Inadequate at Every Step of the
mens rea requirements are ubiquitous at every stage Legislative Process
of the federal legislative process. Although two
steps in the legislative process appear to improve As shown in the following tables, 44 of the 70
the quality of mens rea requirements, a majority offenses passed in either chamber and 23 of the 36
of the non-violent offenses Members of Congress offenses enacted into law were categorized as None
introduce have flawed mens rea requirements, and or Weak. In other words, 63 percent of the offenses
this percentage does not improve through the pro- passed by a chamber of Congress and 64 percent of
cess. Further, the majority of non-violent criminal the offenses actually enacted into law had wholly
offenses introduced in the 109th Congress were inadequate mens rea requirements.
drafted with language that is ambiguous and has
uncertain legal effect, to the greatest detriment of As shown in Table 3 and Chart 5 below, the
the average layperson with no legal training. In ad- mens rea requirements of non-violent offenses in
dition, a sizeable percentage of proposed criminal bills that were passed by their originating chamber
offenses, and a larger percentage of those passed by are, on average, actually weaker than those in all
a chamber or enacted, would have delegated Con- proposed non-violent offenses. Though this dif-
gress’s criminal lawmaking authority to regulators. ference may not be statistically significant, it does
demonstrate that the mens rea requirements in bills
that pass a chamber are not of higher quality than
The primary conclusion of this report is that
those in bills that do not.
non-violent criminal offenses lacking adequate
mens rea requirements are ubiquitous at every Chart 5 demonstrates a similar consistency
stage of the federal legislative process. between the percentage of non-violent offenses
enacted into law that have inadequate mens rea
requirements (Weak or None) and the percent-
Further, the neglect of the special expertise of age of all proposed non-violent offenses that have
the House and Senate Judiciary Committees is pro- inadequate mens rea requirements. The percentage
found; less than one-half of the studied offenses of enacted offenses that fall into the Strong catego-
were referred to either committee. This study, as ry is somewhat lower than the percentage for the
well as the experience of its authors, strongly sug- total sample. Moreover, a larger percentage of
gests that Members of Congress propose so many enacted offenses fall into the Weak category. The
new criminal offenses and modifications to exist- percentage of offenses that are categorized as None
ing offenses that only a small percentage of these is approximately the same for enacted offenses and
proposals could possibly receive meaningful overall proposed offenses, while the percentage of of-
sight by the judiciary committees or benefit from fenses in the Moderate category is slightly lower
their special expertise. In the past, the judiciary for those offenses that were enacted into law than
committees performed a vital gate-keeping func- for all the proposed offenses. In sum, the compos-
tion in preserving the consistency and integrity of ite profile of the strength or weakness of mens rea
federal criminal law, but today they are overrun. requirements for all proposed non-violent offenses
Increasingly, new and modified criminal offenses is consistent with that of those offenses that were
are proposed, shepherded through Congress by enacted into law.
their sponsors, and even enacted without affording
deference to the committees, their expertise, or The data show that, at all stages of the legisla-
their unique jurisdiction over the federal criminal tive process, the majority of offenses lack adequate
justice system. mens rea requirements. This problem is not unique
22 WITHOUT INTENT
Table 3
Mens Rea Requirements Throughout the Legislative Process
Offenses, by Mens Rea Grade
Studied (446 Total) Passed (70 Total) Enacted (36 Total)
None Weak Moderate Strong None Weak Moderate Strong None Weak Moderate Strong
House 82 90 83 22 12 18 14 5 7 11 8 2
Senate 31 52 72 14 4 10 6 1 2 3 3 0
Total 113 142 155 36 16 28 20 6 9 14 11 2
% 25.3% 31.8% 34.8% 8.1% 22.9% 40.0% 28.6% 8.6% 25.0% 38.9% 30.6% 5.6%
to the 109th Congress. For almost three years, every objecting to proposed criminal offenses with mens
criminal offense introduced in Congress that fits rea requirements that this study would charac-
this study’s criteria has been reviewed for The terize as None or Weak.89 Rather, most Mem-
Heritage Foundation’s Overcriminalized.com Web bers of Congress appear to be sensitive to the
site.88 The percentages of criminal offenses in each potential political costs of appearing to be “soft on
of the four mens rea categories for non-violent crime” by strengthening mens rea requirements to
offenses introduced in the 109th Congress appear protect those acting without culpable intent. The
to be generally consistent with those introduced current system is not working, and Congress will
in the 110th Congress. need new structural and procedural devices if it
is to thwart this political pressure and return to
Public debate in recent Congresses over mens crafting criminal offenses with adequate mens rea
rea requirements has been rare, with few Members requirements.
Chart 5
Mens Rea Requirements of Studied, Passed, and Enacted Offenses
Offenses, by Mens Rea Grade
40.0% 38.9% Studied Passed Enacted
40%
34.8%
35%
31.8%
30.6%
30% 28.6%
25.3% 25.0%
25% 22.9%
20%
15%
10% 8.1% 8.6%

5.6%
5%
0%
None Weak Moderate Strong

B. The Judiciary Committees Are entirely clear, the result is that hundreds of crimi-
Frequently Afforded No or Inadequate nal offenses are being proposed in a typical Con-
Opportunities for Oversight of Criminal gress, and many of them are not afforded judiciary
Offenses committee oversight.
Congress consistently neglects the special ex-

pertise of the two judiciary committees when draft- C. The Proliferation of Federal Criminal
ing criminal offenses. Over one-half (52 percent) Law Continues
of the criminal offenses in this study were neither
referred to a judiciary committee nor subject to Much has already been said about the magni-
any oversight by either committee. The number of tude of new criminalization that was proposed and
criminal offenses proposed and enacted has grown enacted by the 109th Congress. The numbers speak
so sharply that, on the whole, individual Members for themselves:
of Congress and congressional leaders may have • 446 non-violent criminal offenses were
concluded that the judiciary committees lack the introduced,
time and resources to review every criminal offense
that is proposed. Thus, for expediency or for stra- • 70 non-violent criminal offenses were
tegic purposes, Members may forgo or even evade passed by at least one chamber, and
judiciary committee review. • 36 non-violent criminal offenses were
enacted into law.
Without adequate mens rea requirements, these Given these large numbers, it unsurprising that
federal criminal offenses greatly increase the danger Congress created 452 entirely new crimes from
that law-abiding individuals will find themselves facing 2000 through 2007,91 legislating at a rate of over one
prosecution and even prison time in the federal system. new crime each week for every week of every year.
Without adequate mens rea requirements, these fed-
eral criminal offenses greatly increase the danger
Bypassing the judiciary committees may not that law-abiding individuals will find themselves
always be intentional. This study frequently un- facing prosecution and even prison time in the fed-
covered criminal offenses that were buried in eral system. These numbers do not, of course, cap-
much larger bills entirely unrelated to criminal ture the full magnitude of the effect that regulatory
law and punishment. It may be that these offenses criminalization authorized by the 36 newly enacted
were simply overlooked or were obscure enough, offenses will have on federal law.
in the context of their legislative vehicles, to fail
to alert anyone to the need for judiciary com- Further, these numbers concern only those
mittee review. In some cases, criminal offenses types of offenses included in this study, generally
may be added to a bill by amendment after the non-violent, non-drug, non-firearm, non-pornog-
bill has already been assigned to a non-judiciary raphy, and non-immigration offenses. Many addi-
committee or once the bill is on the floor of its re- tional offenses that were not a part of this study
spective chamber. When this happens, unless the were proposed during the 109th Congress and ulti-
Members of Congress responsible for the amend- mately enacted into law.
ment containing criminal provisions pause the
process, notify their chamber’s judiciary commit-
tee, and grant that committee sufficient time to D. Poor Legislative Draftsmanship Is
review and appropriately revise the criminal pro- Commonplace
visions, judiciary committee members may not
even know that the amendment contains criminal The lack of clarity in the studied offenses cannot
provisions.90 While the cause of this neglect is not be quantified, though its existence and frequency
24 WITHOUT INTENT
are plain. The authors can attest to the many hours, This complexity has serious consequences.
days, and months that went into performing these When tort law or other civil law is vague, un-
individual assessments and to the significant pro- clear, or confusing, there can be substantial con-
portion of that time spent trying to answer such sequences. But those consequences generally
questions as:
• What conduct is actually covered by Congress frequently fails to speak clearly and with the
this offense and what conduct is not?
necessary specificity when legislating criminal offenses.
• How far into the language of the statute
does the mens rea terminology extend,
and to which elements? take the form of monetary damages. When the
• To which current federal laws and criminal law is vague, unclear, or confusing, the
to which regulations (assuming they consequences are particularly dire: the misuse of
have already been promulgated) does governmental power to unjustly deprive individu-
this statute refer, and which does it als of their physical freedom.
incorporate?
Questions of this sort required substantial re- E. Congress Regularly and Inappropriately
search, deliberation, and discussion before an of- Delegates Criminal Lawmaking Authority
fense could be categorized. Some appreciation of
this process may be gleaned from the individual as- Finally, the amount of regulatory criminal-
sessments in the online appendix, which illustrate ization authorized in the studied offenses dem-
much of this reasoning for the benefit of readers onstrates that congressional delegation of its au-
and other researchers. thority to make criminal law occurs at every stage
of the legislative process and, notably, more fre-
The complexity of this part of the study’s analy- quently in those studied offenses that were either
sis is offered as further evidence in support of the passed by a chamber or enacted into law than in
criticisms that have been leveled against Congress’s the larger sample of proposed offenses. Specifi-
criminal lawmaking by academics, practitioners, cally, 14 percent of all proposed non-violent of-
judges, and others. Congress frequently fails to speak fenses included some form of regulatory crimi-
clearly and with the necessary specificity when leg- nalization. That increases to 17 percent among
islating criminal offenses. Consider, for example, the only those offenses passed by one of the cham-
Flores-Figueroa litigation discussed above.92 It took bers of Congress. The figure increases yet again,
several years of litigation and the opinions of three to 22 percent, among enacted offenses. In raw
different courts, including the United States Su- numbers, eight of the 36 offenses enacted into
preme Court, to determine the meaning of a single law delegate Congress’s authority to make crimi-
criminal offense, which is all of one sentence long. nal laws. Those eight offenses were contained
Another example can be found in the federal hon- in four separate bills, two originating from each
est services fraud statute.93 More than 20 years after chamber.
the statute’s enactment, the federal circuit courts
are hopelessly divided over this exceedingly vague As previously discussed, these numbers do not
and overbroad statute. The statute is finally being reflect the actual number of offenses that will be
scrutinized by the Supreme Court, and the Justices added to federal criminal law. Almost every time
face the choice of striking the statute down on the such offenses are enacted into law, countless addi-
ground of vagueness, saving the statute by doing tional federal regulations also become criminal
Congress’s job of making it more definite and pre- offenses. In fact, the regulations that become
cise, or allowing the chaos and confusion surround- punishable as crimes often do not even exist at the
ing the statute’s meaning to continue.94 time the statutory offense is enacted. But statutory

offenses authorizing criminalization by admin- generally assert that decisions about technical
istrative agencies typically do not limit criminal areas of administrative law should be left to those
exposure just to regulations; in addition, they of- with specific expertise. Whatever merit these ar-
ten create criminal exposure based on violations guments may have, they lack persuasiveness with
of any “rules” or “orders” issued by the agency respect to Congress’s power and responsibility to
or its officials. For these reasons, the presence define what conduct and mental state justifies de-
of these regulatory criminalization offenses pre- priving an individual of her personal freedom. The
vents the authors from providing a complete question of whether a matter is important enough
tally of the number of criminal offenses that to send a person to prison should be decided by the
will result from the bills enacted by the 109th people’s elected representatives.
Congress. Rather, this study’s data provide only
Other explanations that have been offered are
more cynical. Delegating to administrative agen-
The question of whether a matter is important enough cies the authority to make criminal law might al-
to send a person to prison should be decided by the low Members of Congress the benefit of appear-
people’s elected representatives. ing “tough on crime” without being politically
accountable to the individuals most affected by
regulatory criminalization. Further, Congress can
the minimum number of federal criminal of- obtain this benefit without performing the ardu-
fenses enacted into law by this single Congress. ous drafting process that the criminal law tradi-
The ultimate number is likely to be considerably tionally requires. A more generous argument is
higher. that most Members of Congress simply do not
fully realize the many negative ramifications of
While it might strike some as odd that Con- this type of delegation.
gress so readily and frequently abdicates its con-
stitutional authority to create criminal laws, there Regardless of the explanation, Congress fre-
are several possible explanations. The most obvi- quently and consistently delegates its criminal law-
ous is expediency: Some believe that, rather than making authority. This delegation results in more
devoting time and energy to actually defining regulatory criminalization, which, in turn, contrib-
regulations, Congress should focus on broader utes to the continued proliferation of the federal
policymaking. Other arguments for delegation criminal law.
VI. Ending the Trend: Federal Criminal Law Reforms

Congress should adopt basic, good-government • Encourage Congress to legislate more
reforms that will slow, stop, or even reverse the dan- clearly and deliberatively and with great-
gerous trend of haphazard federal criminalization. er coherence; and
This shift should begin with the recognition that
• Reduce Congress’s knee-jerk tendency
the proliferation of criminal offenses lacking mean-
to criminalize in response to every prob-
ingful mens rea requirements is a threat to civil lib-
lem and as a solution to all of society’s
erty. In order to be effective, proper reforms must
real and supposed ills.
be tailored to:
• Address the root causes of the overcrim- The authors of this report recommend the follow-
inalization problem; ing reforms to bring an end to the deterioration
26 WITHOUT INTENT
Recommendations
Congress should:
• Enact Default Rules of Interpretation to Ensure that Mens Rea Requirements Are Adequate to
Protect Against Unjust Conviction.
• Codify the Common-Law Rule of Lenity, which Grants Defendants the Benefit of the Doubt When
Congress Fails to Legislate Clearly.
• Require Judiciary Committee Oversight of Every Bill that Includes Criminal Offenses or Penalties.
• Provide Detailed Written Justification for and Analysis of All New Federal Criminalization.
• Draft Every Federal Criminal Offense with Clarity and Precision.
of mens rea requirements and related problems of punishment and safeguard against unintentional
overcriminalization. legislative omissions of mens rea requirements.
The second statutory enactment, similar to

A. Enact Default Mens Rea Rules subsection 2.02(4) of the American Law Institute’s
Model Penal Code, would direct courts to apply
Of the several reforms that could be imple- any introductory or blanket mens rea terms in a
mented to help ensure that innocent individuals criminal offense to each element of the offense.96
are protected from unjust conviction under federal This reform would eliminate much of the uncer-
criminal offenses that have inadequate mens rea re- tainty that exists in federal criminal law over the
quirements, perhaps the most straightforward and extent to which an offense’s mens rea terminology
effective reform would be to codify default rules applies to all of the offense’s elements. It would
for the interpretation and application of mens rea also save all parties—defendants, the government,
requirements. This reform would add new provi- and the courts—from having to exhaust their
sions to the U.S. Code that would specifically direct time and resources litigating this question, as in
federal courts to grant a criminal defendant the the Flores-Figueroa case. Again, Congress could
benefit of the doubt when Congress has failed to
adequately and clearly define the mens rea require-
ments for criminal offenses and penalties. Perhaps the most straightforward and effective reform
would be to codify default rules for the interpretation
The first statutory enactment would address and application of mens rea requirements.
the unintentional omission of mens rea terminology
by directing federal courts to read a protective, de-
fault mens rea requirement into any criminal offense still limit the application of the mens rea terms to
that lacks one.95 Although it would almost always certain elements of the offense, but it would have
be unwise to do so, Congress would remain free to to articulate such limitations clearly in the text of
enact strict liability offenses even after this reform is the statute. This reform would greatly reduce the
implemented, but to do so, it would have to make disparities that exist among the federal courts in
its purpose clear in the express language of the stat- the interpretation and application of mens rea re-
ute. Adopting this type of reform would help law- quirements, and thereby result in the fairer, more
abiding individuals know in advance which crimi- consistent application of federal criminal laws.
nal offenses carry an unavoidable risk of criminal Further, it would provide additional protection to

defendants who did not intend to violate the law Court has called a fundamental rule of statutory
and did not have knowledge that their conduct construction and cited as a wise principle that it
was unlawful or sufficiently wrongful. has long followed.100 Despite the Supreme Court’s
statements, the rule has not been uniformly or con-
Enacting these two statutory provisions would sistently applied by the lower federal courts, and
improve the mens rea protections throughout fed- adding it to federal law would serve the rights of all
eral criminal law, provide needed clarity, force defendants at every stage of the criminal process,
Congress to give careful consideration to mens rea not just those who have the means and opportu-
requirements when adding or modifying criminal nity to successfully appeal their convictions to the
offenses, and help ensure that fewer individuals are Supreme Court. Codifying the rule of lenity would
unjustly prosecuted and punished. also protect Congress’s lawmaking authority be-
cause it would restrict the ability of federal courts
to legislate from the bench and reduce the frequen-
B. Codify the Common-Law Rule of Lenity cy with which those courts must speak because
Congress has failed to legislate clearly. Further, it
A related statutory reform that would reduce would require Members of Congress to legislate
the risk of injustice stemming from criminal offens- more carefully and thoughtfully, with the knowl-
es that lack clarity or specificity would be to codify edge that courts would be forbidden from filling in
the common-law rule of lenity. The rule of lenity any inadvertent gaps left in criminal offenses. Most
directs a court, when construing an ambiguous importantly, an explicit rule of lenity would protect
criminal law, to resolve the ambiguity in favor of individuals from unjust criminal punishment un-
the defendant.97 In a recent U.S. Supreme Court de- der vague, unclear, and confusing offenses by re-
cision, Justice Scalia explained that this “venerable inforcing the principle of legality, which holds that
rule not only vindicates the fundamental principle no conduct should be punished criminally “unless
forbidden by law [that] gives advance warning that
such conduct is criminal.”101
The rule of lenity directs a court, when construing an
ambiguous criminal law, to resolve the ambiguity in
favor of the defendant. Adding the rule of lenity to
C. Require Sequential Referral to the
Judiciary Committees
federal law would serve the rights of all defendants
at every stage of the criminal process. A third recommended reform is to change con-
gressional rules to require every bill that would
add or modify criminal offenses or penalties to be
that no citizen should be held accountable for a subject to automatic sequential referral to the rele-
violation of a statute whose commands are uncer- vant judiciary committee. Sequential referral is the
tain, or subjected to punishment that is not clearly practice of sending a bill to multiple congressional
prescribed. It also places the weight of inertia upon committees. In practice, the first committee has ex-
the party that can best induce Congress to speak clusive control over the bill until it reports the bill
more clearly and keeps courts from making crimi- out or the time limit for its consideration expires, at
nal law in Congress’s stead.”98 Giving the benefit of which point the bill moves to the second commit-
the doubt to the defendant is consistent with the tee in the sequence, in the same manner. Whereas
traditional rules that all defendants are presumed every new or modified criminal offense introduced
innocent and that the government bears the burden in Congress should be subject to automatic refer-
of proving every element of a crime beyond a rea- ral to a judiciary committee, more than half of the
sonable doubt.99 studied offenses received no such referral.
Explicitly applying the rule of lenity to federal Judiciary committee referral may not automat-
criminal law would simply codify what the Supreme ically produce stronger, more protective mens rea
28 WITHOUT INTENT
requirements. However, this study’s statistical analy- • Whether federal law enforcement has the
sis of the relationship between the strength of mens resources to investigate and prosecute a
rea requirements and specific actions by the House new offense, and whether federal public
Judiciary Committee, considered in the context of defenders have the resources to defend in-
the special expertise and jurisdiction of both judi- digent defendants charged under it; and
ciary committees, make it reasonable to conclude
• Whether enforcing a new offense will
that automatic sequential referral would likely:
divert resources from more important
• Reduce the practice of including new or law enforcement goals.
modified criminal offenses in many bills
unrelated to crime and punishment; These fundamental questions should be answered
• Reduce the frequency of regulatory before Congress considers enacting any new crimi-
criminalization; and nal offense. If the judiciary committees carefully
considered these and related questions for each
• Stem the overall tide of federal criminal- proposed criminal offense, Members of Congress
ization by forcing a measured and priori- might become reluctant to propose new or modi-
tized approach to criminal lawmaking. fied offenses that are ill conceived, poorly drafted,
or superfluous.
This assumes, of course, that the committees care-
fully review, rather than rubber-stamp, proposed
Requiring sequential referral of all bills with criminal
criminal offenses. The judiciary committees alone
have the special competence and expertise required provisions to the judiciary committees would also
to properly draft and design criminal laws. Auto- increase congressional accountability for new
matic referral should result in clearer, more specif- criminalization, help prioritize criminal legislation,
ic, and higher quality criminal offenses.
and reduce overcriminalization.
More importantly, this rule could stem the tide
of criminalization by forcing Congress to adopt Further, the special expertise for fashioning
a measured and prioritized approach to criminal mens rea requirements that are no broader than
lawmaking. Members of Congress have grown ac- necessary to allow conviction of only those who
customed to thinking of criminal offenses as an are truly culpable or blameworthy resides in the
appropriate feature of any piece of legislation. But judiciary committees. Prosecutorial discretion plays
as this study shows, ensuring that a proposed crim- an important role in the American criminal justice
inal offense is a necessary addition to federal crim- system, particularly in selecting enforcement prior-
inal law—and that it is properly drafted—requires ities, determining whether the evidence is sufficient
substantial expertise with the intricate details of to support a prosecution, and negotiating plea bar-
criminal law as well as its broader operation and gains where the evidence of a defendant’s culpabil-
objectives. The House and Senate Judiciary Com- ity is strong. But a criminal offense should never be
mittees are uniquely positioned to evaluate: so broad, or its mens rea requirements so lax, that it
allows prosecutors to obtain convictions of persons
• Whether the approximately 4,450 statu-
who are not truly blameworthy and who did not
tory criminal offenses and an estimated
have fair notice of possible criminal responsibility.
tens of thousands of regulatory criminal
The judiciary committees are in the best position
offenses now in federal law already cover
to ensure that Congress ends its practice of passing
the conduct being criminalized;
these dangerous criminal offenses.
• Whether a new offense is consistent
with the Constitution, particularly con- Requiring sequential referral of all bills with
stitutional federalism’s reservation of criminal provisions to the judiciary committees
general police power to the 50 states; would also increase congressional accountability

for new criminalization, help prioritize criminal necessary to assess the purported justification,
legislation, and reduce overcriminalization. As it costs, and benefits of all new criminalization.
now stands, no single committee can take over-
all responsibility for reducing the proliferation of Today, there is no effective check on overcrimi-
new (and often unwarranted, ill-conceived, and nalization. Over the past half century, the political
unconstitutional) criminal offenses or for ensuring pressures to criminalize have been difficult for most
that adequate mens rea requirements are a feature Members of Congress, irrespective of party affilia-
of all new and modified criminal offenses. Sequen- tion, to resist. In addition, federal regulators who
tial referral would empower the judiciary com- criminalize conduct should be subject to far more
mittees to take responsibility for all new criminal public accountability than they are today. This re-
provisions. Further, Members of Congress and form would help to provide such accountability by
the public would know that they should address requiring the federal government to perform basic
their interests and concerns about new criminal but thorough reporting on the grounds and justi-
offenses to the judiciary committees, which could fication for all new and modified criminal offenses
act on them. and penalties. Implementing this reform would re-
quire rules changes in both chambers of Congress
Finally, the judiciary committees are well posi- and statutory reporting requirements governing
tioned to prioritize new criminal offenses because the federal agencies that create and modify criminal
they have the best information about the level and offenses and penalties.
allocation of federal law enforcement’s resources
and must operate within their own time and re-
For every new or modified criminal offense or
source limitations. Such prioritization should re-
penalty that Congress passes, it must report:
duce the proliferation of federal criminal offenses,
the erosion of adequate mens rea requirements from • A description of the problem that the
federal criminal law, the unwarranted and uncon- criminal offense or penalty is intended to
stitutional federalization of inherently local crime, redress, including an account of the per-
and other forms of overcriminalization. Given the ceived gaps in existing law, the wrongful
current neglect of these concerns in the legislative conduct that is currently unpunished or
process, such improvements would be a welcome under-punished, and any specific cases
change. or concerns motivating the legislation;
• A direct statement of the express consti-
tutional authority under which the fed-
D. Require Reporting on All New Federal eral government purports to act;
Criminalization
• An analysis of whether the criminal of-
The fourth reform is a reporting requirement fenses or penalties are consistent with
for all new federal criminalization, which would constitutional and prudential consider-
work hand-in-hand with the sequential referral ations of federalism;
• A discussion of any overlap between the
conduct to be criminalized and conduct
This reform proposal would require Congress to deliberate
already criminalized by existing federal
over and provide factual and constitutional justification and state law;
for every expansion of the federal criminal law. • A comparison of the new law’s penalties
with the penalties under existing federal
reform. Similar to a bill Representative Don Manzullo and state laws for comparable conduct;
(R–IL) introduced in 2001, this reform would require • A summary of the impact on the federal
the federal government to produce a regular pub- budget and federal resources, includ-
lic report that includes much of the information ing the judiciary, of enforcing the new
30 WITHOUT INTENT
offense and penalties to the degree re- federal criminal law. In the 109th Congress alone,
quired to solve the problem that the new federal legislators introduced over 200 bills pro-
criminalization purports to address; posing new or expanded non-violent criminal of-
• A review of the resources that federal fenses, and that number does not include the bills
public defenders have available and need proposing new or expanded criminalization con-
in order to adequately defend indigent cerning violence, firearms, drugs, pornography,
defendants charged under the new law; or immigration violations. Many offenses in these
and bills would have created new federal crimes, du-
plicated existing federal criminal statutes, or pro-
• An explanation of how the mens rea vided redundant penalties for crimes already pun-
requirement of each criminal offense ished under state law. As it stands today, there is no
should be interpreted and applied to each comprehensive process for Congress to determine
element of the offense. whether these new offenses are necessary and ap-
propriate. A strong reporting requirement reform
Congress should also collect information on would compel Congress to address such matters.
criminalization reported by the executive branch of
the federal government. This information should
be compiled and reported annually and, at mini- E. Focus on Clear and Careful
mum, should include: Draftsmanship
• All new criminal offenses and penalties
that federal agencies have added to fed- One overarching reform recommendation is a
eral regulations and an enumeration of slower, more focused, and deliberative approach to
the specific statutory authority support- the creation and modification of federal criminal
ing these regulations; and
• For each referral that a federal agency One overarching reform recommendation is a slower,
makes to the Justice Department for more focused, and deliberative approach to the creation
possible criminal prosecution, the provi-
and modification of federal criminal offenses.
sion of the United States Code and each
federal regulation on which the referral
is based, the number of counts alleged offenses. When drafting legislation, Members of
or ultimately charged under each statu- Congress should always:
tory and regulatory provision, and the
ultimate disposition of each count. • Include an adequate mens rea requirement;
• Define both the actus reus (guilty act) and
Congress should always be required to deter- the mens rea (guilty mind) of the offense
mine the true cost of new criminal offenses prior in specific and unambiguous terms;
to enactment. The United States is already saddled
• Provide a clear statement of whether
with in excess of 4,450 federal statutory criminal of-
the mens rea requirement applies to
fenses, tens of thousands of regulatory criminal of-
all the elements of the offense or, if
fenses, an overworked federal judiciary with an ev-
not, of which mens rea terms apply to
er-growing case load, and a crowded and expensive
which elements of the offense; and
prison system. The federal government’s failure to
assess and justify the full costs of any new or modi- • Avoid delegating criminal lawmaking
fied criminal offenses or penalties is irresponsible. authority to regulators.
This reform proposal would require Congress Criminal offenses frequently fail to define the
to deliberate over and provide factual and consti- actus reus in a clear and understandable manner
tutional justification for every expansion of the and often include an actus reus that is broad,

overreaching, or vague. Practically speaking, the required for each and every act and circumstance in
magnitude of conduct proscribed by an overbroad the criminal offense is readily ascertainable.
actus reus can actually have a diminishing effect on
the protection afforded by the mens rea provision. The importance of sound legislative drafting
When a criminal offense does not have clearly de- cannot be overstated, for it is the drafting of a crim-
fined boundaries, the risk of unjust criminal punish- inal offense that frequently determines whether a
ment increases. For this reason, legislative drafters person acting without intent to violate the law and
must make every reasonable effort to craft a clear lacking knowledge that his conduct was unlawful
and precise definition of each criminal offense and or sufficiently wrongful to put him on notice of
of the offense’s boundaries, regardless of whether possible criminal liability will endure a life-altering
Congress is proposing new criminal offenses or prosecution and conviction, and lose his freedom.
simply amending existing ones. Members of Congress drafting criminal legislation
must resist the temptation to bypass this arduous
task by handing it off to unelected regulators. The
The importance of sound legislative drafting cannot be United States Constitution places the power to
overstated, for it is the drafting of a criminal offense that define criminal responsibility and penalties in the
hands of the legislative branch. Therefore, it is the
frequently determines whether a person acting without
responsibility of that branch to ensure that no one
intent to violate the law will endure a life-altering is criminally punished if Congress itself did not
prosecution and conviction, and lose his freedom. devote the time and resources necessary to clearly
and precisely articulate the law giving rise to that
punishment.
Determining the proper mens rea requirement
for a criminal offense requires great deliberation,
precision, and clarity. Any Member of Congress pro- These five reforms would help ensure that ev-
posing a new or modified federal criminal offense ery proposed criminal offense receives the attention
must carefully consider how the mens rea require- due when Congress is determining how to focus the
ment will actually operate when applied to the speci- greatest power government routinely uses against
fied actus reus. Legislative drafters should almost its own citizens.102 Coupled with increased public
never rely merely on a standard mens rea term in the awareness and scrutiny of the criminal offenses
introductory language of a criminal offense. Instead, Congress enacts, these reforms would strengthen
the criminal offenses that provide the best protec- the protections against unjust conviction and pre-
tion against unjust conviction are those that include vent the dangerous proliferation of federal criminal
specific intent provisions and provide sufficient clar- law. With their most basic liberties at stake, Ameri-
ity and detail to ensure that the precise mental state cans are entitled to expect no less.
32 WITHOUT INTENT
Methodological Appendix
I. The Mens Rea Analysis
A. The Studied Offenses Defined

The best way to define the offenses included in this study is by listing the types of offenses that were
not included. The offenses in this study are not primarily directed at conduct involving firearms, illicit drugs
or other controlled substances, pornography, immigration violations, or what is typically referred to as vio-
lent or street crime (murder, rape, robbery, arson, larceny, assault, battery, vandalism, carjacking, etc.). The
relatively few included offenses that actually involve physical damage to property, bodily injury, or death
are not intentional crimes of the sort that have historically been charged as a crime. They are more akin
to the injuries for which a person or organization could be sued because their negligence caused personal
injuries or damage to property, the remedy for which would be a monetary award in a civil suit. In the cases
of a few offenses that are included in this study that involve intentional injury or damage, the definition
of the prohibited conduct requires the intent or objective of the property damage or bodily injury to be
something other than the damage or injury itself.103 Similarly, while this study generally does not include
immigration offenses, it does include some offenses that are often associated with immigration violations,
such as identity theft, false statements, and certain employment practices.
The authors and their research teams used reasonable efforts to review every bill introduced in the
109th Congress that created or modified any criminal offense and then excluded those offenses that did not
fit the study’s selection criteria. Omissions and oversights are possible, but with very few exceptions,104 no
offenses that fit this study’s parameters were intentionally excluded. In all instances, the authors and their
researchers attempted to use the latest publicly available version of the bill, regardless of whether it was
enacted into law or at what stage of the legislative process it came to rest in its originating chamber when
the 109th Congress ended on January 3, 2007.
B. Counting the Studied Offenses

The term “offense,” as used in this study, is defined in a specific manner that requires some elaboration.
Unlike other studies that identify and count “crimes” or “offenses” based solely on the covered conduct and
the statute’s structure, this study also accounts for the mens rea requirements in the statutory language when
determining what constitutes an “offense” for counting purposes. This method is consistent with the study’s
main purpose, which is to examine the independent protectiveness of each offense’s mens rea requirement.
A criminal provision that includes only one mental state requirement applied to only one course of
conduct is counted as one “offense.” However, where a criminal provision includes more than one course
of conduct, the number of offenses within that provision is determined by analyzing the application of
the mental state requirement to each course of conduct. Thus, where the application of the mental state
requirement to two different courses of conduct is analytically distinct, each course of conduct counts as

a separate offense. Similarly, multiple subsections of the same criminal provision are counted as separate
offenses if the application of the mental state requirement to the conduct proscribed by the subsections is
analytically distinct. As the term “offense” is used throughout this report, it takes on the definition specific
to this method of counting offenses.105 Comparisons with any other study’s results should take into consid-
eration the differences in counting methods and the definition of the term “offense.”
C. Offense Interpretation
This study’s primary focus is the independent protectiveness of each offense’s mens rea requirement. In
other words, the focus of the analysis was on the likelihood that the government could charge, prosecute,
and convict individuals who acted without intent to violate a law and lacked the knowledge that their con-
duct was unlawful or sufficiently wrongful to put them on notice of possible criminal responsibility. When
assessing each offense, the study does not rely on the ideal use of prosecutorial discretion, the existence of
which some rely on to defend laws that are vague or overbroad or lack meaningful mens rea requirements.
The idea that prosecutors will protect innocent individuals from unjust prosecution and punishment under
such laws has not always proven true, and even if it were true in 99 percent of cases, few would take com-
fort in knowing that laws sanction the conviction, in some cases, of those who are not culpable. Therefore,
this analysis does not take into account how an ideal prosecutor would, or would not, charge an offense
and does not assume that prosecutorial discretion will protect potential defendants from unjust conviction.
This is consistent with the purpose of the study, which is to assess the protections provided by the mens rea
requirements themselves.
In addition to plain language analysis, this study is guided by relatively recent Supreme Court deci-
sions that define or interpret common mens rea terms used in federal statutes. Federal law does not include
standard, well-defined mens rea terms, such as those included in state criminal codes based on the American
Law Institute’s Model Penal Code (MPC). The use of mens rea terms in federal criminal law is haphazard,
and almost all of the terms have been subjected to a wide variety of (sometimes inconsistent) judicial inter-
pretations.106 Recent Supreme Court opinions have provided guidance on the interpretation of the terms
“willfully” and “knowingly” when used as a blanket or introductory mens rea term.107
To the extent possible, this study is also guided by the Supreme Court’s Flores-Figueroa decision, as
amplified upon and qualified by Justice Alito’s concurring opinion, on the scope of the introductory
mens rea term (“knowingly”) in the federal aggravated identity theft statute.108 Specifically, where an of-
fense includes a blanket or introductory mens rea term (usually “knowingly,” “willfully,” or both) and the
operative language of the offense follows directly and immediately after this term, this study’s analysis
generally applies the mens rea term to each non-jurisdictional element109 of the offense unless the stat-
ute’s grammar, context, or structure raises significant uncertainty about this approach. With regard to
those offenses where the application of the mens rea requirement is not entirely clear, or where the courts
are likely to reach differing conclusions, the authors have chosen not to apply the mens rea requirement
to those elements. Again, this is consistent with the purpose of the study: to determine the actual pro-
tection afforded by the mens rea requirement standing alone, and not to rely on the additional protec-
tions that might be afforded to defendants through an exemplary exercise of prosecutorial discretion
or through a particular court’s interpretation of a debatable provision of law. Further, this is consistent
with the principle that the protectiveness of the mens rea requirement in each offense should be analyzed
individually according to its unique terminology, grammar, and structure.
Finally, this study does not consider how an ideal court would rule on a motion to dismiss or wheth-
er the court would, for example, apply the common-law rule of lenity, or some other doctrine, to aid a
34 WITHOUT INTENT
particular defendant.110 Again, consistent with the purpose of this study, the focus is not on whether a court
might or could protect potential defendants from unjust conviction, but on the protections afforded by the
mens rea requirements themselves, independent of such considerations.
D. Categorizing the Offenses
1. The Four Mens Rea Categories
Each of the offenses included in this study was assigned one of four grades describing the protection
provided by the offense’s mens rea requirement.
a. Inadequate Mens Rea Requirements: “None” and “Weak”
• None: Nothing in the language of the offense prevents conviction of an individual who
– Did not intend to violate a law, and
– Did not have knowledge that his conduct was unlawful or sufficiently wrongful to put
him on notice of possible exposure to criminal responsibility.
The None category includes offenses that omit any mens rea requirement, which are usually
strict liability offenses, and those offenses that rely on tort-law terminology, such as “should
have known,” “reasonably should have known,” or “negligently,” rather than the criminal law’s
traditional mens rea terminology.
• Weak: The language of the offense is reasonably likely to prevent the conviction of at least some
individuals who
– Did not have knowledge that their conduct was unlawful or sufficiently wrongful to put
them on notice of possible exposure to criminal responsibility.
At the same time, the language of an offense characterized as Weak could, without being misin-
terpreted, allow the conviction of a sizable number of these individuals.
The Weak category includes most offenses that use the terms “knowingly” or “intentionally” in
a blanket manner or as part of the introductory language of the offense, without any additional
mens rea terminology.
In light of these definitions of None and Weak, this study considers the mens rea requirements of
offenses falling into either of these two categories to be inadequate.
b. Adequate Mens Rea Requirements: “Moderate” and “Strong”
• Moderate: The language of the offense is more likely than not to prevent the conviction of an
individual who

Nonetheless, some of these individuals could be convicted of an offense graded as Moderate
without engaging in substantial misinterpretation of its language because of inconsistent judicial
interpretation and application of the mens rea terms it uses.
The Moderate category includes most offenses that use the terms “willfully” or “knowingly and
willfully” (or “willfully and knowingly”) in a blanket manner as part of their introductory lan-
guage, without any additional mens rea terminology. It also includes some offenses that apply a
variation of the phrase “with knowledge” to conduct involving making or using false statements
or writings.
• Strong: The language of the offense, absent substantial misinterpretation, is highly unlikely to
permit the conviction of an individual who
This category includes, for example, offenses that use some combination of the mens rea terms
“knowingly” and “willfully” with a specific intent to violate the law or to act in a manner that the
average person knows to be inherently wrongful or in violation of the law.
Although the mens rea requirements of offenses categorized as Moderate (and especially those cat-
egorized as Weak‑to‑Moderate yet tallied as Moderate) are not ideal and would allow for criminal
conviction and punishment of some inculpable persons, this study considers the mens rea require-
ments of offenses falling into both the Strong and Moderate categories to be adequate.
The preceding definitions state the basic guidelines for grading the studied offenses, but this study ana-
lyzed each offense’s mens rea requirement individually and within the context of the rest of the offense’s
structure and language. As part of the analysis and in addition to being assigned a grade, important parts of
the individual assessment were recorded in the tables included in this report’s online appendix. These tables
include a basic explanation of the strengths and weaknesses of each offense’s mens rea requirement and a
discussion of any offense-specific or other unusual considerations that affected an offense’s grade.
2. Tabulating Intermediate Mens Rea Grades
In some instances, an offense could not be placed squarely into one of the four mens rea categories.
Where the authors agreed that the protectiveness of an offense’s mens rea requirement fell between two cat-
egories, it was given an intermediate grade, such as None-to-Weak. Offenses receiving one of these interme-
diate grades are indicated as such in the online appendix to this report. However, in order to give the benefit
of the doubt to congressional drafting, these offenses were assigned the higher, more protective grade for
this report’s other analyses. For example, an offense graded as Weak-to-Moderate in the online appendix is
tabulated simply as Moderate for the purposes of this study’s data reporting and statistical analyses.
E. Congressional Actions
In addition to grading each offense’s mens rea requirement, the study also determined whether any
of seven major congressional actions were taken on each bill that contained a studied offense. Of these
36 WITHOUT INTENT
seven actions, three concern chamber-wide activities: (1) whether a bill was referred to the House or Sen-
ate Judiciary Committee; (2) whether a bill was passed by either the House or Senate; and (3) whether a
bill was ultimately enacted into law. If the bill was referred to a House or Senate Judiciary Committee, the
study tracked whether the committee (or one of its subcommittees, as possible) held a hearing on the bill,
amended the bill, marked up the bill, or reported the bill for consideration by the full chamber.
F. Statistical Analysis of Possible Correlations Between Congressional

Actions and Protectiveness of Mens Rea Requirements
The Heritage Foundation’s Center for Data Analysis conducted several types of statistical calculations
to identify where the legislative process might be improving or undermining the mens rea requirements of
non-violent criminal offenses. The statistical calculations looked for correlations between the protective-
ness of mens rea requirements and the cataloged actions—specifically, whether the bill was enacted, passed
by a chamber, referred to a judiciary committee, or subjected to other major actions by a judiciary commit-
tee. The results of CDA’s calculations are included in the online appendix.

38 WITHOUT INTENT
Endnotes
1. This report and the underlying study on which it is based use the terms mens rea and “guilty mind.” Neither
finds its perfect synonym in the term “criminal intent,” which is employed in the report’s title solely for its wider usage
in the media and public discourse.
2. This report uses the term “non-violent offenses” as a shorthand for these offenses. Whereas all the offenses
included in this study are non-violent, many other offenses proposed by the 109th Congress could also be described as
non-violent. Specifically, this study did not include offenses that involve firearms, drugs and drug trafficking, pornogra-
phy, and immigration violations. This report’s use of the term “non-violent offenses” is merely a shorthand description
and is not intended as a statement that the excluded offenses are necessarily violent in nature.
3. As explained more fully later in the report, this study considered a criminal offense’s mens rea requirement to be
adequate if the language of the offense itself provides sufficient protection from criminal punishment to individuals
who act without intent to violate a law and without knowledge that their conduct was unlawful or sufficiently wrong-
ful to put them on notice of possible criminal liability. See Methodological Appendix, infra.
4. Sequential referral is the practice of sending a bill to multiple congressional committees in an ordered sequence.
The first committee in the ordered sequence has exclusive control over the bill until it either reports the bill out or its
time for consideration expires, at which point the bill moves on to the second committee in the same manner.
5. See, e.g., John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes, Heritage Foundation L. Memo. No.
26, June 16, 2008, at 1 (finding that from 2000 through 2007 Congress enacted an average of 56.5 crimes a year).
6. Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097, 1098 (1952).
7. Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (internal quotation marks omitted) (quoting Lanzetta v. New
Jersey, 306 U.S. 451, 453 (1939)).
8. Id. at 350.
9. Morissette v. United States, 342 U.S. 246, 251–52 (1952).
10. See Rollin M. Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905, 908 (1939).
11. See Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 821–46 (1980)
(discussing, inter alia, the development in the 13th century English courts of the legal doctrine that a criminal defendant
could be convicted only upon proof that he acted with a guilty mind).
12. Dennis v. United States, 341 U.S. 494, 500 (1951).
13. Morissette, 342 U.S. at 251.
14. As described later in the report, the President of the United States and others in the executive branch play a
substantial role in the proliferation of criminal offenses with inadequate mens rea requirements.
15. Where the prohibition of certain conduct is justified, civil rather than criminal enforcement is often the most
effective method for regulating and punishing that conduct. Civil enforcement does not inflict the stigma of criminal
punishment on inadvertent violators and those who are insufficiently blameworthy, and it still effectuates deterrence,
retribution, and rehabilitation through the use of fines and other penalties. See Marie Gryphon, It’s a Crime?: Flaws in
Federal Statutes That Punish Standard Business Practice, Manhattan Inst. Civil Justice Report No. 12, at 10 (Nov. 2009).
16. 1 J. Austin, Lectures on Jurisprudence, 497 (Robert Campbell ed., Gaunt, Inc. 4th ed. 1976) (1879); see also 4
William Blackstone, Commentaries 27 (William S. Hein & Co. 1992) (1769) (“[E]very person of discretion…is bound
and presumed to know [the law].”).

17. Joshua Dressler, Understanding Criminal Law 166 (3d ed. 2001) (emphasis added, internal citation omitted).
18. See generally Baker, supra note 5; Criminal Justice Section, American Bar Association, The Federalization of
Criminal Law (1998) [hereinafter Federalization of Criminal Law].
19. Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 713–14 (2005).
20. 18 U.S.C. § 1112 (2008).
21. See Black’s Law Dictionary 957 (6th ed. 1991) (defining “malice aforethought” as an “intent, at the time of a
killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the
consequences to human life”).
22. 18 U.S.C. § 1111(a) (2008).
23. Id.
24. In his dissent from denial of certiorari in Sorich v. United States, Justice Antonin Scalia noted that one federal
court of appeals “confidently proclaimed” that the vague, overbroad federal honest services fraud statute, 18 U.S.C.
§ 1346, is “‘not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the
course of dealing.’” 129 S. Ct. 1308, 1310 (2009) (Scalia, J., dissenting from denial of certiorari) (quoting United States v.
Welch, 327 F.3d 1081, 1107 (10th Cir. 2003)). In expressing his skepticism about the appeals court’s proclamation, Justice
Scalia argued that such an overbroad law could be unjustly applied to make virtually any unseemly conduct a crime:
Without some coherent limiting principle to define what “the intangible right of honest services” is,
whence it derives, and how it is violated, this expansive phrase invites abuse by headline grabbing pros-
ecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner
of unappealing or ethically questionable conduct.
Id.; see also 2 St. Thomas Aquinas, Summa Theologica pt. I-II, q. 96, art. 2, at 1018 (Fathers of the English Dominican
Province trans., Christian Classics 1981) (1948) (“[H]uman laws do not forbid all vices, from which the virtuous abstain,
but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the
hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits
murder, theft and such like.”).
25. Lanzetta v. New Jersey, 306 U.S. 457, 453 (1939).
26. See generally Baker, supra note 5; Federalization of Criminal Law, supra note 18.
27. See Rachel Brand, Making It a Federal Case: An Inside View of the Pressures to Federalize Crime, Heritage Found.
L. Memo. No. 30, Aug. 29, 2008, at 2–4 (describing political, media, and public pressure to fashion new federal criminal
laws or increase federal law enforcement authority in response to problems that garner nationwide attention).
28. See Federalization of Criminal Law, supra note 18, at 2.
29. See generally Baker, supra note 5; Federalization of Criminal Law, supra note 18; Ronald L. Gainer, Federal Criminal
Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 46 (1998); Ronald L. Gainer, Report to the Attorney General on Federal
Criminal Code Reform, 1 Crim. L. Forum 99 (1989).
30. “While a figure of ‘approximately 3,000 federal crimes’ is frequently cited, that helpful estimate is now surely
outdated by the large number of new federal crimes enacted in the 16…or so years intervening since its estimation. The
present number of federal crimes is unquestionably larger.” Federalization of Criminal Law, supra note 18, at 94.
31. Id. at 7–8.
32. Id. at 93.
33. Id. at 10.
34. Id. at 10 n.13.
35. The Baker study used a methodology based closely on that used by the Justice Department, which was the
basis of the ABA Report’s 3,000 federal crimes estimate. Baker, supra note 5, at 5.
36. Id. at 1–2.
37. Id. at 2.
38. See id. (finding that from 2000 through 2007 Congress created an average of 56.5 entirely new crimes a year).
39. Morissette v. United States, 342 U.S. 246, 251 (1952).
40 WITHOUT INTENT
40. See, e.g., 18 U.S.C. § 707 (providing a criminal penalty of up to six months imprisonment for making unauthor-
ized use of the logo of the 4-H Clubs).
41. 18 U.S.C. §§ 1341, 1343 (2008).
42. See Black v. United States, 530 F.3d 596 (7th Cir. 2008), cert. granted, 129 S. Ct. 2379 (U.S. 2009); Weyhrauch v.
United States, 548 F.3d 1237 (9th Cir. 2008), cert. granted, 129 S. Ct. 2863 (U.S. 2009); Skilling v. United States, 554 F.3d
529 (5th Cir. 2009), cert. granted, 130 S. Ct. 393 (U.S. 2009); see also Brief of the National Association of Criminal Defense
Lawyers as Amici Curiae in Support of Petitioner, Skilling v. United States, No. 08-1394 (U.S. Dec. 18, 2009); Brief of the
National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner, Weyhrauch v. United States,
No. 08-1196 (U.S. Sep. 21, 2009); Brief of the National Association of Criminal Defense Lawyers and New York Council
of Defense Lawyers as Amici Curiae in Support of Petitioners, Black v. United States, No. 08-876 (U.S. Aug. 6, 2009).
43. S. 2509, 109th Cong. § 1713(b) (2006).
44. Id.
45. See 18 U.S.C. § 1033(f )(1) (“[T]he term ‘business of insurance’ means (A) the writing of insurance, or (B) the re-
insuring of risks, by an insurer, including all acts necessary or incidental to such writing or reinsuring and the activities
of persons who act as, or are, officers, directors, agents, or employees of insurers or who are other persons authorized
to act on behalf of such persons[.]”).
46. Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).
47. 18 U.S.C. § 1028A(a)(1).
48. Flores-Figueroa, 129 S. Ct. at 1888.
49. Id. at 1894.
50. Id. at 1890.
51. Id. at 1891.
52. Id. at 1895 (Alito, J., concurring).
53. Id. at 1895–96. As Justice Alito explained:
For example, 18 U.S.C. § 2423(a) makes it unlawful to “knowingly transpor[t] an individual who has
not attained the age of 18 years in interstate or foreign commerce…with intent that the individual
engage in prostitution, or in any sexual activity for which any person can be charged with a criminal
offense.” The Courts of Appeals have uniformly held that a defendant need not know the victim’s age
to be guilty under this statute…. Similarly, 8 U.S.C. § 1327 makes it unlawful to “knowingly ai[d] or
assis[t] any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such sec-
tion has been convicted of an aggravated felony)…to enter the United States.” The Courts of Appeals
have held that the term “knowingly” in this context does not require the defendant to know that the
alien had been convicted of an aggravated felony.
Flores-Figueroa, 129 S. Ct. at 1895–96 (alterations in original, internal citations omitted).
54. Id. at 1896.
55. Id. at 1891 (majority opinion).
56. For example, one provision in the federal Lacey Act states that any person who “knowingly imports or exports
any fish or wildlife or plants in violation of any provision of this chapter” shall be criminally punished. See 16 U.S.C.
§ 3373(d)(1)(A). Another provision of the Lacey Act incorporates every wildlife rule or offense present in “any law,
treaty, or regulation of the United States or…any Indian tribal law.” 16 U.S.C. § 3372(a)(1).
57. John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in
American Law, 71 B.U. L. Rev. 193, 216 (1991); see also Clyde Wayne Crews, Jr., Ten Thousand Commandments: An Annual
Snapshot of the Federal Regulatory State, Competitive Enter. Inst. 13 (2007), available at http://cei.org/pdf/6018.pdf
(“Since 1980, the CFR [Code of Federal Regulations] has grown from 102,195 pages to 144,040. By contrast, in 1960,
there were only 22,877 pages.”).
58. H.R. 3968, 109th Cong. § 506(g)(2) (2005).
59. 16 U.S.C. § 3371 et seq.

60. See, e.g., Marie Gryphon, It’s a Crime?: Flaws in Federal Statutes That Punish Standard Business Practice, Man-
hattan Institute Civil Justice Report No. 12, at 2–6 (Nov. 2009) (explaining how missing or inadequate mens rea
requirements in federal criminal law undermine the principle that to be punished criminally a person must be truly
blameworthy); Harvey A. Silverglate, Federal Criminal Law: Punishing Benign Intentions—A Betrayal of Professor Hart’s
Admonition to Prosecute Only the Blameworthy, in In the Name of Justice 65 (Timothy Lynch ed., 2009). Silverglate’s es-
say in response to Professor Henry Hart’s classic article on The Aims of the Criminal Law, 410 Law & Contemp. Probs.
25 (1958), briefly reviews the path that federal criminal law has followed since a few U.S. Supreme Court precedents
undermined common-law protections requiring criminal punishment to be based on actual blameworthiness. Id.
at 66–73. Silverglate’s essay also reviews several federal criminal prosecutions that were based on vague, overbroad
criminal offenses lacking adequate mens rea requirements and similar protections necessary to protect defendants who
are not truly blameworthy. Id. at 73–94. The development of criminal law in the 50 states has generally followed a dif-
ferent path. Silverglate points out that “efforts to codify state criminal codes in the 1950s and 1960s were intended to
modernize and organize—not to reject—ancient common law concepts, firmly establishing their place in the statute
books.” Id. at 67. When considering mens rea and related concepts, “the crafters of the new state criminal statutes were
attuned to the need to keep the law linked to the moral notions of blameworthiness that underpinned the common
law of crimes.” Id.
61. The rule of lenity is a judicial doctrine used to construe ambiguous criminal laws. See United States v. Santos,
128 S. Ct. 2020, 2025 (2008). In such cases, the rule requires the court to resolve the ambiguity in the defendant’s favor.
See id.
62. These numbers include only bills, not resolutions.
63. H.R. 3192, 109th Cong. § 107(1) (2005).
64. S. 3506, 109th Cong. § 2(c) (2006).
65. As amended by the Stolen Valor Act of 2005, Pub. L. No. 109-437, § 3, 120 Stat. 3266 (2006) (hereinafter Stolen
Valor Act) (S. 1998, 109th Cong.), 18 U.S.C. § 704(a) now reads: “Whoever knowingly wears, purchases, attempts to
purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures,
sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value any decoration or medal
authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to
the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable
imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or
imprisoned not more than six months, or both.”
66. Stolen Valor Act, supra note 65 § 1.
67. See Orders and Medals Society of America, OMSA President’s Message, March-April 2007, http://www.omsa.org/
forums/president.php (“Although the intent of the [l]aw was to restrict and provide severe consequences to those indi-
viduals who fraudulently claimed that they were recipients of the Medal of Honor, Distinguished Service Cross, Navy
Cross, Air Force Cross, Silver Star and Purple Heart, the actual wording left much to be desired. In fact the law appears
to restrict all commerce in the above decorations and[,] depending on how it is interpreted[,] possibly all U.S. Federal
awards.”).
68. Dixon v. United States, 126 S. Ct. 2437, 2441 (2006) (quoting Bryan v. United States, 524 U.S. 184, 193 (1998)).
69. 524 U.S. at 192. In some federal circuits, any mens rea requirement based on knowledge (e.g., “knowingly,”
“knowing,” or “knew”) is likely to draw a government request for a jury instruction on willful blindness. See, e.g., United
States v. Jewell, 532 F.2d 697, 700–04 (9th Cir. 1976) (en banc) (holding that a jury may convict under a “knowingly”
standard if it finds the evidence satisfies a liberal formulation of the “willful blindness” or “deliberate ignorance” doc-
trine). Any “willful blindness” instruction that follows, for instance, the Jewel line of cases is likely to be inferior to and
less protective than the formulation of the doctrine in the American Law Institute’s Model Penal Code. See Model Penal
Code § 2.02(7) (2009) (“Requirement of Knowledge Satisfied by Knowledge of High Probability.”).
70. H.R. 3968, 109th Cong. § 506(g)(2) (2005).
71. Bryan, 524 U.S. at 192.
72. H.R. 3968, 109th Cong. § 506(g)(2).
73. Id.
42 WITHOUT INTENT
74. See Dixon v. United States, 548 U.S. 1, 6–7 (2006) (“[U]nless the text of the statute dictates a different result,
the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” (internal quotation
marks omitted)); Bryan v. United States, 524 U.S. 184, 192 (1998) (“[T]he term ‘knowingly’ does not necessarily have any
reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, ‘the knowledge
requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.’” (quoting
Boyce Motor Lines v. United States, 342 U.S. 337, 345 (1952) ( Jackson, J., dissenting))).
75. H.R. 4148, 109th Cong. § 2(a) (2005).
76. Although this report’s analysis focuses on the mens rea requirement of the criminal provision, and not the
actus reus, it should be taken into consideration when assessing the strength of the offense’s mens rea provision that the
conduct constituting this particular offense is quite broad, vague, and far-reaching. When considering the practical
application of such an offense, the conduct proscribed by an overbroad actus reus can undermine the protection
afforded by the mens rea provision.
77. As the U.S. Supreme Court noted in Bryan v. United States, the “word ‘willfully’ is sometimes said to be ‘a word
of many meanings’ whose construction is often dependent on the context in which it appears. Most obviously it differ-
entiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of
mind. As we [have] explained…, a variety of phrases have been used to describe that concept.” 524 U.S. 184, 191 (1998)
(internal citations omitted). Further, “[t]he word often denotes an act which is intentional, or knowing, or voluntary, as
distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose;
without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done
without ground for believing it is lawful or conduct marked by careless disregard whether or not one has the right so
to act.” Id. at 191 n.12 (internal citations omitted); see also id. at 191–92 (“As a general matter, when used in the criminal
context, a ‘willful’ act is one undertaken with a ‘bad purpose.’”). However, the Court has held that in “certain cases
involving willful violations of the tax laws…the jury must find that the defendant was aware of the specific provision
of the tax code that he was charged with violating.” Id. at 194 (citing Cheek v. United States, 498 U.S. 192, 201 (1991)).
In Ratzlaf v. United States, 510 U.S. 135 (1994), for example, the Court concluded that “in order to satisfy a willful viola-
tion…the jury had to find that the defendant knew that his structuring of cash transactions to avoid a reporting require-
ment was unlawful.” Bryan, 524 U.S. at 194. The Court reasoned that “[b]oth the tax cases and Ratzlaf involved highly
technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Id. at
194 (citing Ratzlaf, 510 U.S. at 149). For purposes of analysis, this report relies on the Supreme Court’s discussion of
the term “willfully” in Bryan, in particular, the Court’s statements defining “willfully” to require a “culpable state of
mind,” an act “undertaken with a ‘bad purpose,’” or both. Unless the context dictates otherwise, the analysis does not
interpret “willfully” as requiring a defendant’s specific knowledge of the law or his intent to violate a specific provision
of law. This approach steers a course somewhere near the middle of the way through the varied definitions and usages
of “willfully” in a significant body of Supreme Court case law.
78. H.R. 4572, 109th Cong. § 5 (2005).
79. H.R. 5188, 109th Cong. § 2(a) (2006).
80. S. 414, 109th Cong. § 303 (2005).
81. U.S. Senate Committee on the Judiciary, http://judiciary.senate.gov/about/ (last visited Feb. 4, 2010). For simi-
lar information about the House Judiciary Committee, see http://judiciary.house.gov.
82. U.S. Senate Rule XXV, available at http://rules.senate.gov/public/index.cfm?FuseAction=HowCongressWorks.
RulesOfSenate.
83. The authors did not overlook the possibility that greater judiciary committee oversight might correlate with
less protective mens rea requirements. Federal law enforcement agencies, including the U.S. Department of Justice, rou-
tinely provide some of their employees the opportunity to serve “on detail” as staff to Members of Congress and con-
gressional committees. Anecdotal reports indicate that a substantial percentage of these detailees work for the House
and Senate Judiciary Committees and for Members of Congress who serve on those committees and that detailees not
infrequently become permanent members of congressional staff. While they serve as congressional staff, law enforce-
ment detailees remain employees of their respective law enforcement agencies. The possibility has been recognized
that detailees could exert an institutional bias on the legislative process in favor of broader, harsher criminal offenses
under which it is easier to secure a conviction.

84. Future studies might consider whether any of the following factors correlates with the strength of mens rea
requirements in non-violent offenses: the identity of each bill’s primary sponsor or sponsors, the length of sponsors’
tenure in Congress, and the length of sponsors’ tenure (if any) as a member of a judiciary committee.
85. The term “the offense” is in quotation marks in the text because statutes directing regulatory criminalization
are not proper criminal offenses. Such statutes do not define the entire actus reus, and they usually do not define the
entire mens rea requirement or provide the specificity and definiteness of language needed to direct how any mens rea
requirement should be applied to the elements of the offense as ultimately defined by regulatory action.
86. Over-Criminalization of Conduct/Over-Federalization of Criminal Law: Hearing Before the Subcomm. on Crime, Terror-
ism, and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. (2009) [hereinafter House Hearing] (written state-
ment of former U.S. Att’y Gen. Dick Thornburgh, July 22, 2009, at 9), available at http://judiciary.house.gov/hearings/
pdf/Thornburgh090722.pdf, 2009 WL 2186682 (“Congress needs to rein in the continuing proliferation of criminal
regulatory offenses. Regulatory agencies routinely promulgate rules that impose criminal penalties that are not enacted
by Congress…. Congress should not delegate such an important function to agencies.”); see also id. (recommending
reform similar to that proposed by the Congressional Responsibility Act, H.R. 931, 109th Cong. (2005), which “sought
to ensure that Federal regulations would not take effect unless passed by a majority of the members of the Senate and
House and signed by the President”).
87. Columbia law professor John Coffee has reported estimates that up to 300,000 federal regulations can be
punished criminally. John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime
Distinction in American Law, 71 B.U. L. Rev. 193, 216 (1991).
88. Since the beginning of 2007, the Heritage Foundation has been using the Legislative Update system that
it developed in conjunction with the National Association of Criminal Defense Lawyers to monitor and perform
basic analysis of every criminal offense introduced in Congress that meets the same criteria as the offenses that are
the subject of this study. The Legislative Update is publicly available on Heritage’s Overcriminalized.com Web site.
See Overcriminalized.com, http://overcriminalized.com/Legislation.aspx. When Congress is in session, Heritage’s
weekly Legislative Update Alert provides email subscribers status updates and a brief summary of newly introduced
and pending bills that would add non-violent criminal offenses to federal law or modify those already in law. The
analysis conducted for the Legislative Update Alert strongly suggests that the data in this report on the number,
type, and mens rea requirements of criminal offenses introduced and passed in the 109th Congress are generally
consistent with the number, type, and mens rea requirements of criminal offenses introduced and passed in the 110th
Congress.
89. But see House Hearing, supra note 86 (statement of Chairman Robert “Bobby” Scott), video available at http://
judiciary.edgeboss.net/real/judiciary/crime/crime072309.smi (noting widespread concern over the deterioration in
the standards for what constitutes a criminal offense, including “the disappearance of the common-law requirement of
mens rea,” and emphasizing that “mens rea has long played an important role in protecting those who do not intend to
commit wrongful acts from prosecution and conviction”); id. (statement of Ranking Member Louie Gohmert) (noting
that, in the “labyrinth” of criminal laws scattered throughout the U.S. Code and federal regulations, there is “a signifi-
cant element missing from many of the criminal provisions: criminal intent” and explaining that the mens rea require-
ment is “a cornerstone of criminal law, and it is eroding as regulatory crimes are being prosecuted under reduced, or
even non-existent, mental states”).
90. Similarly, the Legislative Update system attempts to identify every amendment that contains relevant criminal
provisions and to include such amendments in the weekly Legislative Update Alert emails. It is not unusual for this
process to identify amendments with criminal provisions being added to bills approximately a week before the bill is
passed, leaving too little time for adequate review of the criminal provision by Members and almost no time for the
public to be apprised of the new criminalization before it is passed.
91. Baker, supra note 5, at 1, 5.
92. See supra notes 46–55 and accompanying text.
93. 18 U.S.C. § 1346 (2000).
94. See supra note 42 and accompanying text.
95. In doing so, some consideration should be given to the key provisions in the American Law Institute’s Model
Penal Code (MPC) that standardize how courts interpret criminal statutes that have no or unclear mens rea requirements.
44 WITHOUT INTENT
See Model Penal Code § 2.02(1) (2009) (“Minimum Requirements of Culpability”); id. § 2.02(3) (“Culpability Required
Unless Otherwise Provided”); id. § 2.02(4) (“Prescribed Culpability Requirement Applies to All Material Elements”).
Although the general rule articulated in MPC subsection 2.02(3) is salutary insofar as it provides an express remedy
for an omission of mens rea terminology, “recklessly” should not be used as a default term because it is insufficient to
protect those actors who are not truly culpable or blameworthy. See id. § 2.02(3) (“When the culpability sufficient to
establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely,
knowingly, or recklessly with respect thereto.”). In order to avoid unjust convictions, it is strongly recommended that
any default mens rea provision enacted into federal law rely on the mens rea terms that are most protective of persons
who are not truly blameworthy.
96. Id. § 2.02(4) (“When the law defining an offense prescribes the kind of culpability that is sufficient for the com-
mission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the
material elements of the offense, unless a contrary purpose plainly appears.”).
97. See, e.g., United States v. Santos, 128 S. Ct. 2020, 2025 (2008).
98. Id.
99. See Taylor v. Kentucky, 436 U.S. 478, 483–87 (1978) (explaining the presumption of innocence and the govern-
ment’s burden of demonstrating the defendant’s guilt beyond a reasonable doubt); Estelle v. Williams, 425 U.S. 501, 503
(1976) (“The presumption of innocence…is a basic component of a fair trial under our system of criminal justice.”).
100. In United States v. Bass, the Supreme Court referred to the rule of lenity as a “wise principle[ ] this court has
long followed.” 404 U.S. 336, 347 (1971). Quoting Justice Oliver Wendell Holmes, Jr., and Judge Henry Friendly, respec-
tively, the Court further explained:
This principle is founded on two policies that have long been part of our tradition. First, “a fair warn-
ing should be given to the world in language that the common world will understand, of what the law
intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be
clear.”… Second, because of the seriousness of criminal penalties, and because criminal punishment
usually represents the moral condemnation of the community, legislatures and not courts should de-
fine criminal activity. This policy embodies “the instinctive distaste against men languishing in prison
unless the lawmaker has clearly said they should.”
Id. at 348 (internal citations omitted); see also Bell v. United States, 349 U.S. 81, 83 (1955) (“When Congress leaves to the
Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And
this is not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing
evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement
of a penal code against the imposition of a harsher punishment.”).
101. Wayne R. LaFave, Criminal Law 11 (4th ed. 2003).
102. It would be of great benefit to the nation, and little would be lost, if Congress were to place a non-partisan,
across-the-board moratorium on enacting new criminal offenses for at least one year and invest the legislative time and
resources that are now being squandered on creating new criminal offenses into studying existing federal criminal of-
fenses and rewriting the currently monstrous, disorganized, and incomprehensible body of federal criminal law. Cf. Julie
R. O’Sullivan, The Federal Criminal “Code” Is a Disgrace: Obstruction Statutes as Case Study, 96 J. Crim. L. & Criminology
643, 643 (2006) (characterizing federal criminal law as “an ‘incomprehensible,’ random and incoherent, ‘duplicative,
ambiguous, incomplete, and organizationally nonsensical’ mass of federal legislation that carries criminal penalties”
(internal citations omitted)).
103. One example of such an offense is found in section 303 of the Voter Protection Act, S. 414, 109th Cong.
(2005), which criminalizes damage to property if the offender intended thereby to prevent a person from voting in an
election for national office. See supra note 80 and accompanying text.
104. The only known exceptions that fit this study’s criteria are the bills in the 109th Congress criminalizing clon-
ing and conduct related to cloning, which were removed because the authors were unable to reach agreement on the
nature of these offenses’ mens rea provisions.
105. The reader is referred to the online appendix to this report, available at http://report.heritage.org/sr0077 and
www.nacdl.org/withoutintent. Each individual offense defined in this study has its own table in the Offenses Appendix
in the Online Appendix.

106. See, e.g., Dixon v. United States, 548 U.S. 1 (2006); Bryan v. United States, 524 U.S. 184 (1998); Ratzlaf v. United
States, 510 U.S. 135 (1994).
107. See, e.g., Dixon, 548 U.S. at 6–7; Bryan, 524 U.S. at 193; Ratzlaf, 510 U.S. at 141.
108. Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888 (2009) (holding that the mens rea term “knowingly” in
the introductory language of the federal aggravated identity theft statute (18 U.S.C. § 1028A(a)(1)) applies to the phrase
“of another person” located at the end of the offense’s definition). For a more complete discussion of the Supreme
Court’s decision in Flores-Figueroa, see supra notes 46–55 and accompanying text.
109. Because the federal government is a body of limited, enumerated powers, a high percentage of the non-
violent offenses in this study require (or purport to require) a nexus between the violative conduct and interstate
commerce. The purpose of language requiring this nexus is to bring the conduct under the power granted to Con-
gress under the Commerce Clause of the U.S. Constitution. Some offenses, for example, require the conduct to be “in
or affecting interstate commerce,” an extremely broad jurisdictional “hook,” which ostensibly makes the prohibited
conduct a matter of federal jurisdiction. Where a single mens rea term (usually “knowingly” or “willfully”) is used as a
blanket or introductory requirement at the beginning of the language defining the offense, this study generally does
not assume that the federal courts will require the government to prove that the defendant knew that his conduct was,
for example, “in or affecting interstate commerce” in order to secure a conviction.
110. The rule of lenity is a judicial doctrine used to construe ambiguous criminal laws. See United States v. Santos,
128 S. Ct. 2020, 2025 (2008). In such cases, the rule requires the court to resolve the ambiguity in the defendant’s favor.
For a discussion of the rule of lenity, see supra notes 97–101 and accompanying text.
46 WITHOUT INTENT
Online Appendix available at:
http://report.heritage.org/sr0077
and
www.nacdl.org/withoutintent
The Heritage Foundation National Association of Criminal Defense Lawyers
214 Massachusetts Avenue, NE 1660 L Street, NW, 12th Floor
Washington, D.C. 20002 Washington, D.C. 20036
(800) 546-2843 (202) 872-8600
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How Congress Is Eroding the

Brian W. Walsh and Tiffany M. Joslyn

This report is subject to a Creative Commons Attribution-Noncommercial-No Derivative Works license

Brian W. Walsh and Tiffany M. Joslyn

Edwin J. Feulner Cynthia Hujar Orr

Brian W. Walsh Tiffany M. Joslyn

About the Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Criminal Punishment Requires Culpability and Fair Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Proliferation of Criminal Offenses with Inadequate Mens Rea Requirements

Rationale and Summary of Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mens Rea Data Analysis, Calculations, and Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Conclusions on the Legislative Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ending the Trend: Federal Criminal Law Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Online Appendix – Available at: http://report.heritage.org/sr0077 and www.nacdl.org/withoutintent

Governed by an independent Board of Trustees, The Heritage Foundation is an independent, tax-

The Heritage Foundation

National Association of Criminal Defense Lawyers

How Congress Is Eroding the Criminal Intent Requirement in Federal Law v

Edwin Meese III Norman L. Reimer

viii WITHOUT INTENT

Without Intent: How Congress Is Eroding the

How Congress Is Eroding the Criminal Intent Requirement in Federal Law ix

How Congress Is Eroding the Criminal Intent Requirement in Federal Law xi

xii WITHOUT INTENT

5. Draft every criminal offense with clarity and precision.

F ew protections against unjust criminal con-

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 1

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 3

II. The Proliferation of Criminal Offenses with Inadequate

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 5

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 7

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 9

III. Rationale and Summary of Methodology

This study began with the working hypothesis

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 11

A. Mens Rea Category Totals

Studied Offenses in the Senate (169 Total)

Mens Rea Grade, by Congressional Chamber 10% 8.3%

Senate 31 52 72 14 169 None Weak Moderate Strong

Total None Weak Moderate Strong

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 13

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 15

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 17

mens rea requirements inhabiting a mid-

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 19

E. The Regulatory Criminalization

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 21

10% 8.1% 8.6%

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 23

Congress consistently neglects the special ex-

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 25

VI. Ending the Trend: Federal Criminal Law Reforms

The second statutory enactment, similar to

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 27

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 29

How Congress Is Eroding the Criminal Intent Requirement in Federal Law 31

I. The Mens Rea Analysis

A. The Studied Offenses Defined