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MENS REA is Latin for “guilty mind.” Traditionally, a guilty mind, or the knowledge that one is committing a crime, has been essential for criminal law to apply to an individual. Mens rea, which is also referred to as “criminal intent,” has been further solidified in the United States by its inclusion in the Model Penal Code. However, legal experts and lawmakers are expressing concern that new laws are missing adequate mens rea requirements—meaning that people are sent to jail for crimes they had no idea they were committing.

Take Krister Evertson, for example. Evertson is a smalltime inventor who was trying to develop a fuel cell that could generate energy without pollution. In an effort to raise money, Evertson legally sold sodium (excess fuel cell material) but was unaware of the federally mandated sticker he was required to place on the package when he shipped it, which specially routed it for ground transportation. He had already paid for ground transportation, but since he was shipping from Alaska, it would actually have been mailed air mail without the proper sticker. Evertson was arrested and charged with that offense.

Ironically, though he was acquitted on the initial charges, he was then charged with improperly transporting and abandoning “semi-hazardous waste,” because he had moved his remaining materials to a friend’s storage facility where it was being safely stored. Evertson disputed that it was waste, as he was planning to use it, and he also contended that it posed no threat. The court disagreed: Evertson was sentenced to 21 months in federal prison.

Brian W. Walsh, senior legal research fellow at conservative think tank The Heritage Foundation, is among those who now refer to the phenomenon as overcriminalization. Walsh discusses it in the recent paper Without Intent, which he co-authored. The paper was jointly published by The Heritage Foundation and The National Association of Criminal Defense Lawyers (NACDL).

The two groups are not typically thought of as allies, but “if you keep bending the arc of justice relentlessly toward injustice, left and right meet.... After decades of overcriminalization and federal lawmaking run amok, it shouldn’t come as any great surprise that NACDL and Heritage have common ground on this issue,” says NACDL Executive Director Norman Reimer.

The paper does not address violent crimes, such as murder and rape, which are offenses that would not be acceptable regardless of intent. The authors focus instead on malum prohibitum crimes, which are illegal because they are prohibited, not because they are inherently wrong. For example, laws regarding transportation of certain types of substances. A person may not realize they are not transporting the substance in the lawful manner and may not have criminal intent, even though they broke the law.

The researchers looked at the 446 nonviolent criminal offenses proposed as laws in the 109th Congress. They found that 57 percent of those lacked an adequate mens rea requirement. And 23 of the crimes with inadequate mens rea requirements were enacted into law. Some of the criminal laws passed in recent years do not even mention mens rea. Additionally, at times when the laws do mention mens rea in the federal code, it is often so far removed from the actual regulation prohibiting the crime that it becomes unclear which aspects of the crime must have mens rea.

“The way that the mens rea requirements have been used over time has really deteriorated to the place that Congress has no clear and routine manner in which it uses certain terms, and the courts have not interpreted them. Neither has the court interpreted those terms in a consistent and clear manner,” says Walsh.

During a talk on the paper, Reimer asked: “How can anybody obey a law when even the most highly trained lawyers and judges can’t agree on what the law means?”

The abundant use of criminalization for regulatory and other offenses may be one of the reasons for the trend away from mens rea, according to Walsh, who says that overcriminalization makes it easier for law enforcement authorities to convict people, particularly when they don’t have to prove a guilty mind.

Additionally, he says that there are members of Congress who desire a “tough on crime” reputation and might resort to criminalization even when it’s not the best solution.

Many new crimes are too broad, according to the report. “We need to get back to very well-defined and precise criminal offenses…and a very limited number of them, so that the average person or the average business owner has at least a fighting chance of knowing what the federal crimes are and avoiding that conduct,” says Walsh.

Eric A. Johnson, criminal law professor at University of Illinois College of Law, admits to being in the minority on this issue in that he doesn’t think that overcriminalization is a rampant problem. However, he points out that, traditionally, strict liability crimes (crimes without mens rea requirements) are regulatory offenses that don’t often carry strict jail sentences. “The guilty mind, the whole idea is we don’t want to throw you in jail and really mess up your life for an offense like an industrial chemical spill where it’s just sort of something that happens and that companies are expected to take into account and take precautions about. That’s the kind of thing for which strict liability is often appropriate,” explains Johnson.

He says the trend has been away from that in recent years; the regulatory offenses are still regarded as strict liability (and lack mens rea requirements) but their punishments are becoming stricter.

Another issue raised in the report is that many of the new laws are not passing through the congressional judiciary committees, which are the only committees with “express jurisdiction over federal criminal law.” Without Intent points out that the crimes that do pass through the committee are more likely to have adequate mens rea.

So what would make an adequate mens rea requirement? Walsh would like to see a well-defined set of terms in the law, like in the Model Penal Code, so people know that they are committing a crime. Additionally, he would like to see variations of mens rea in new nonviolent crimes, much like there are variations in types of murder, from first-degree to manslaughter. He would also like the laws to go through the judiciary committees for review, among other recommendations.

Lawmakers from both major parties have supported Without Intent’s recommendations. Walsh is optimistic that legislation that would enact the reforms will be introduced by the end of this year.