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New legislation looks at 'mens rea' in criminal justice: Part II

In our previous post, we began a discussion about proposed mens rea reforms in bills being considered by Congress. The concept of mens rea - a term often translated as "guilty mind" - is an important component of criminal justice. Traditionally, in order for an act to be considered criminal, the actor must have been aware that it was illegal and acted with criminal intent.

There are currently thousands of federal criminal statutes, many of which do not address mens rea. This is in addition to an unknown number of state criminal statutes and federal regulations that can carry criminal liabilities if violated. Without the need to prove mens rea, an individual could be prosecuted for violating a law or regulation they had no knowledge of.

It is easy to see how this could lead to huge problems for individuals charged with a crime. In the sense that it protects individual defendants, federal legislators largely seem to agree on the need for a higher mens rea standard. But if the reforms are applied as broadly as written, the issue of mens rea reform becomes much more divisive.

Critics of the legislation have argued that it would largely benefit corporations by making it even more difficult to prosecute corporate executives for financial crimes and violation of regulations. Others say that the mens rea reform bills would also make it more difficult to prosecute terrorists.

One way to potentially alleviate the concerns of critics is to address mens rea on a "statute-by-statute basis," as some Democrats and the Obama administration have suggested. This could be a lengthy process, but it may just be the most sensible approach. Broad and sweeping legislation almost always comes with unintended consequences, and the one-size-fits-all approach is arguably how some of these criminal statutes were passed in the first place.

No matter what ultimately happens legislatively, we have to hope that mens rea continues to be a topic of public discussion and debate. It is a crucial part of our criminal justice system, and it deserves due attention.

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