Can Mens Rea (Guilty Mind) Provisions Let People Who Commit White Collar Crimes Off the Hook?
Date:  03-30-2016

Two bills could increase burden of proof for prosecutors in certain crimes
From Center for American Progress

Congress has been working on a criminal justice reform package to address the overcriminalization and mass incarceration problems that the United States faces. These problems are major drivers of poverty and inequality and are devastating many families and communities, particularly communities of color. Unfortunately, some congressional policymakers are pushing to use this reform package to fundamentally change what it means to be guilty of a white-collar crime.

On November 18, 2015, the U.S. House of Representatives Judiciary Committee voted to advance H.R. 4002, the Criminal Code Improvement Act of 2015, as part of its criminal justice reform package. The legislation includes a provision—making up just twelve lines of the 35-page legislation—that would force prosecutors to meet a new, two-part default mens rea requirement for certain crimes. Mens rea—Latin for “guilty mind”—is a legal standard used to identify the state of mind that would make a defendant culpable of a crime.

Just a few days later, Sen. Orrin Hatch (R-UT) introduced companion bill S. 2298, the Mens Rea Reform Act. On January 20, 2016, the U.S. Senate Committee on the Judiciary held a hearing on this bill and the issue of criminal intent standards in federal prosecutions. Leslie Caldwell, the witness for the U.S. Department of Justice, or DOJ, expressed concern about the proposed mens rea language under consideration in both bills, warning that it could “cause extreme and very harmful disruptions to essential federal criminal law enforcement operations.” She testified that the legislation would “make it considerably more difficult to effectively prosecute violent crimes, sexual offenses, corporate wrongdoing, and other serious misconduct.”

In effect, both bills would significantly increase the burden of proof for prosecutors seeking to enforce criminal provisions of food safety, banking, and environmental laws, among others, designed to thwart corporate crime. This issue brief describes the default mens rea proposals and outlines three ways this new legal standard could make it easier for corporate criminals to go unpunished. Read more