Proliferation of strict liability crimes contribute to overcriminalization

Conservative advocacy group Right on Crime urged lawmakers to reform the “criminal mental state” requirement in federal criminal codes in a report published recently, reported Jurist. The report also criticized the proliferation of laws that require no specific mental state as contributing to over-criminalization in the country.

Right on Crime contends that “there has been an explosion of criminal laws passed by Congress and promulgated by federal executive agencies” where mens rea requirements have been intentionally omitted. The paper argued that the growth of federal law and lack of mens rea requirements have damaged public confidence in criminal law by “creat[ing] cynicism and indifference to the whole criminal law.”

The report further argued that mandating a mens rea requirement in every federal criminal statute would help eliminate over-criminalization and the abuse of prosecutorial discretion. Seven recommendations were given including executive action, new legislation making mens rea statutory requirement for criminal law, adoption of the rule of lenity which would force courts to interpret ambiguous statutes in favor of defendants, and better tracking of the volume of crimes to better inform legislators and the public.

Mens rea is a requirement in criminal law that an accused individual have a particular mental state when a crime is committed to be found guilty of a crime. Mens rea requirements are considered foundational to criminal law, examples include requirements for “malicious intent” when prosecuting first degree murder charges or requirements that a defendant “knowingly” engage in certain conduct to be found liable in other crimes.

On the other hand, strict liability crimes are crimes where an accused is found guilty simply based on whether or not the prohibited activity occurred. They are typically rare or disfavored for their lack of flexibility when applied to widely different sets of facts since they do not consider what a person was thinking or intended when they committed a certain act. Nonetheless, the multitude of “strict liability” crimes nowadays has drastically increased the Federal Register where federal laws are published has gone from 16 pages in 1936 to an average of 70,000.

Compared to the traditional conservative “tough on crime” approach, Right on Crime views crime from a fiscal perspective and highlights the high cost of imprisoning criminals. The group mandates to advocate for cost-effective approaches to enhance public safety without jailing nonviolent and low-risk offenders.

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