Policy Documents

Congress Doesn’t Know Its Own Mind— And That Makes You a Criminal

Paul Rosenzweig –
July 18, 2013

In this Legal Memorandum, the author writes that all too often, America’s legislature writes laws that are silent on the question of intent. Whether by mistake, through laziness, or due to purposeful ambiguity, Congress often writes laws without a “guilty mind” (mens rea) requirement and leaves it to the courts to decide whether that law has an intent requirement in it, what that requirement is, and the actions to which it applies. As a result, innocent persons are facing unjust conviction for violating federal criminal offenses. Congress should stop creating laws that do not have mens rea requirements, but simple solutions can be difficult to implement. America therefore needs a systemic solution: a statute that, by its terms, sets a default rule for mens rea requirements.