Justice requires that we are certain, beyond a reasonable doubt, that a defendant intended to commit a crime before government deprives one of us of our liberty. Proving criminal intent is fundamental to our criminal justice system. It is what separates an accident from a crime.

Creating a default level of criminal intent, or mens rea, is an essential part of criminal justice reform.

What is Criminal Intent?

There is a simple calculation that, for centuries, has added up to create crimes in our criminal laws. First, there must be a criminal act, also known as actus reus. A criminal act is the bad action taken by the individual in question. With that criminal act must also be criminal intent, also known as mens rea, translated from Latin as “guilty mind.”

Criminal intent is a core tenet of the American criminal justice system because the “guilty mind” is what separates an accident from a wrongful act that society has decided should be punished.

Though there may be some legal and Latin terms thrown in, it does not require a law degree or a classics degree to grasp the concept. Most of us are familiar with levels of intent, whether we are trained in the law or not.

Why Does Criminal Intent Matter?

Criminal intent is what distinguishes crimes from accidents, and sometimes it helps us differentiate the severity of crimes.

When one of us is involved in a car accident resulting in injuries, what we are really saying is that the vehicle collision was unintentional. If the drivers involved struck each other unintentionally, it is doubtful that criminal charges will be filed, even if someone is injured. This is an example where the criminal act exists, but the criminal intent does not.

But consider another scenario: a driver was recklessly speeding and collided with another vehicle, resulting in injuries. “Reckless” is a term of criminal intent. In this case, there may be criminal charges filed, since both the wrongful action and the guilty mind are present.

Other terms of criminal intent that we are all familiar with include:

  • willfully
  • intentionally
  • maliciously
  • knowingly
  • recklessly
  • negligently

Default Criminal Intent Standards

It should come as no surprise that politicians can make mistakes. Not all lawmakers are aware of the legal imperative to include a level of criminal intent and the moral hazard that legislatures perpetrate when a standard is not present. In the rush to “do something,” lawmakers sometimes do not recognize the importance of criminal intent and inadvertently make more members of the public criminally liable.

In 1790, there were fewer than 20 federal crimes. Today, it is estimated that there are approximately 5,000 federal criminal offenses and more than 300,000 criminal regulatory offenses.  There are so many criminal laws in the United States that to go back and find every error borders on impossible. No one has been able to even count all of the federal crimes and regulations, let alone evaluate the statutes for appropriate mens rea standards. It is not until a case is brought against an unsuspecting citizen that we realize there may well be thousands of Americans violating that law every day because of an absent intent standard.

This is where a default criminal intent standard is effective. These laws, already approved by 14 states, apply a level of intent to laws where there is no term in the text of the law. For example, if a law stated, “It is unlawful to misstate your income on Form A4,” it would mean that if you mistakenly write $4,000 when you meant to write $40,000, you would automatically be a criminal. A default criminal intent standard would insert the chosen term so that the law would instead be interpreted to mean, “It is unlawful to knowingly misstate your income on Form A4.”

Though these laws vary from state to state, and current federal proposals attack the problem in different ways, there are some basic principles that apply to these protections:

  • Crimes that are inherently wrong, such as murder, are not subject to the default term.
  • If the legislature intends to create a strict liability crime, it must explicitly say so.
  • When a court has already applied a standard to the crime, the term established by law will apply.

Myths About Criminal Intent Default Standards

As basic as criminal intent is in our criminal justice system, there have been wild rumors about what default standard laws would or would not do at the federal level. Here are some of the most common myths, dispelled.

This is a new concept that few people know about.

Criminal intent, or mens rea, is one of the most basic principles of criminal law. It is what distinguishes an accident from a crime. More specifically, the issue of overcriminalization in regard to the way criminal intent is applied at the federal level has been debated for years in Congress. There have been significant U.S. Supreme Court cases on the topic over the last decade. Furthermore, there are 14 states that have enacted a default standard.

As Right on Crime Signatory Grover Norquist has said, “Since mens rea is Latin, it’s not a question about the amount of time that we’ve had to focus on mens rea: it’s been around for several thousand years.”

Default mens rea will eliminate strict liability laws.

Strict liability may apply to a minor violation, such as a parking ticket, where all that must be proved is that a car was parked illegally, not whether the driver knew the parking spot was illegal. But strict liability may also apply to what we consider more serious crimes, such as drunk driving or sex with a minor. In those cases, no matter the intent of the accused, he or she will be found guilty if a prosecutor can prove that the criminal act occurred. Establishing a default standard would not eliminate these, only mandate that new laws going forward explicitly state that it is a strict liability law or be subject to the default standard.

There may still be laws where strict liability applies. The default standard only applies when lawmakers do not explicitly state that the criminal law is intended to be strict liability, and not that someone forgot to add in an intent term. “Strict liability” means that so long as the criminal act was committed, it does not matter what the intent was.

Terrorists and murderers will be helped by default criminal intent standards.

A White House official told the Huffington Post: “If [a default criminal intent bill proposed in House] became law, a terrorist could only be found guilty for using a weapon of mass destruction if he specifically knew his victims were going to be U.S. nationals, a killer could only be found guilty of certain firearm crimes if he knew the gun traveled in interstate commerce…” If it sounds too outrageous to be true, that’s because it is. Though there can be reasonable debate over the bills that are currently being debated in Congress, these proposals ensure that only the crimes that are not inherently wrong are given a default standard if no standard exists.

Ready for some more Latin? Crimes that are inherently wrong or evil, known as malum in se crimes, do not necessarily require intent standards. The use of a weapon of mass destruction is obviously wrong, to say nothing of any injury or death that stems from it. However, there are thousands of federal crimes that are not clearly wrong, such as the filing of certain forms or paperwork. These are known as malum prohibitum crimes: crimes that are only thus because Congress has decided that the acts are criminal.

There are simple ways to ensure that those who commit inherently evil crimes are not given an advantage in the courtroom thanks to this change. Some state default criminal intent laws have specified sections of the criminal code that are excluded, for example.

Only rich, white collar criminals are helped by criminal intent reform.

Though it may be that many of those malum prohibitum crimes fall within the “white collar” crime realm, this myth is an odd, narrow-minded objection to making our criminal justice system more just. This view is ill-informed of the realities of who is more likely to be trapped by the federal criminal code. High-level corporate executives have an army of lawyers to ensure that those individuals and the corporation are always in compliance with federal criminal law, and that can respond at a moment’s notice should trouble arise. It is more likely that a small business owner is the one who will find herself facing a federal prosecutor and trying to answer for a crime found deep in the volumes and volumes of federal regulations. The saying “show me the man, and I’ll find you the crime” has never been more possible than when armed with hundreds upon hundreds of thousands of little-known, unpublicized laws.