The New Debate About Criminal Intent in Federal Criminal Law

Alex Sarch of Cornell Law School recently posted an interesting article on the complex issue of mens rea — that is, criminal intent or a "guilty mind" — in federal criminal law. How mens rea is defined and proved becomes critical to conviction in many federal cases, particularly when it comes to white collar crimes.

For example, for a given charge, might it only be required that the accused intended to do the act that underlay the accusation? Or must he or she also have known that the act broke the law? What if the accused didn't know that the act violated a law, but the prosecutor can argue that he or she should have known it did?

I face these kinds of questions every day in my practice, often with clients who face harsh penalties for acts done without full knowledge that they violated a law. You can see what's at stake: under strict mens rea rules, you can be subject to prison, crippling fines and a scarred reputation all based on an act that was arguably innocently undertaken.

Sarch's article delves into these issues and the current Congressional debate about criminal law reform with regard to mens rea. His prescription?

Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.

Read the full article by Alex Sarch in Politico: "How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on "mens rea" reform. Here's a middle ground."