Hatch, Grassley introduce bill to strengthen and clarify intent requirements in federal criminal law

Senators Orrin Hatch (R-UT), the former Chairman of the Senate Judiciary Committee, and Chuck Grassley (R-IA), the current Chairman of the Judiciary Committee, introduced legislation to clarify and strengthen intent requirements in our federal criminal laws. The problem of overcriminalization is complex, and it includes the lack of clear mens rea requirements in much of our criminal laws. 

The Mens Rea Reform Act of 2018 would strengthen the intent requirements in our federal criminal laws. And it would make these changes in a responsible way by establishing an extended process for federal agencies and Congress, with the assistance of a National Criminal Justice Commission and input from the public, to clarify the mens rea requirements in our existing criminal laws.

“I have long believed that meaningful mens rea reform is a critical component of any comprehensive criminal justice reform package,” said Hatch. “ I am pleased that today Chairman Grassley joins me in recognizing the importance of mens rea reform, and I look forward to working with him to advance this initiative alongside sentencing and prison reform. I firmly believe that such a comprehensive approach is necessary. But I’ve also been around long enough to know that we should never let the perfect be the enemy of the good. If there is no path forward for a comprehensive deal, I am fully supportive of making incremental progress where we can.”

“Our criminal justice system should be tough but fair. That means consequences should fit their crimes and criminal laws should be as much about defending the liberty of the innocent as they are about preventing and punishing illegal behavior,” said Grassley. “Thoughtful mens rea reform that promotes clarity in our criminal laws is an important piece of the puzzle. I’m grateful for Senator Hatch’s ongoing leadership on this issue and for his partnership in advancing the bipartisan Sentencing Reform and Corrections Act.”

Statements of Support

Efforts to reform mens rea intent requirements for federal criminal laws are supported by a broad range of groups, from the National Association of Criminal Defense Lawyers to the American Conservative Union and many others.

David Safavian, General Counsel of the American Conservative Union:

“The explosion in the size of government has led to a massive growth in the number of federal crimes. When so much of our daily lives is governed by the criminal code, a fundamental tenet of fairness is that people should know what they are doing is wrong if they are to be held accountable for their conduct.  Unfortunately, that’s not always the case.  Far too many criminal charges are for so-called “strict liability” offenses.  Often arising out of bureaucratic rules and regulations, strict liability crimes relieve the prosecutor of having to prove that the defendant intended to break the law – or even knew that his/her conduct was illegal.  The strict liability approach often results in outcomes that would be comical if it weren’t for the fact that people end up in prison. It’s common sense that Americans should know what they are doing is wrong before they can be charged by their government with a crime. The Mens Rea Reform Act of 2018 will limit the ability of faceless bureaucrats to create more strict liability crimes.  Equally important, the legislation, introduced by Senator Orrin Hatch (R-UT) and Judiciary Committee Chairman Charles Grassley (R-IA), will establish a mechanism for Congress to review those laws already on the books, and ensure that the appropriate standard of intent is applied.  The American Conservative Union applauds Senators Hatch and Grassley for their efforts, and strongly support this important reform.”

Rick Jones, President of the National Association of Criminal Defense Lawyers:

“Fundamental fairness requires that every criminal statute and regulation have a clearly defined intent requirement.  The failure to abide by this core principle, combined with the explosive and wholly unregulated growth of criminal laws, fosters unfairness, exacerbates disparity and undermines the moral authority of our justice system. This critically important legislation is long overdue.”


By many estimates, there are approximately 5,000 federal statutes that impose criminal sanctions, along with an estimated 300,000 federal regulations that also carry criminal penalties.  With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal.  The lack of clear mens rea requirements in many of these criminal laws only exacerbates the problem of overcriminalization.  Sentencing and prison reform can do only so much if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress does not specify that their crime should be a strict liability offense.

For the past several years, Senator Hatch has championed the Mens Rea Reform Act to establish a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement.  Prior versions of this bill were criticized for the potentially sweeping, unintended consequences that could result if a default mens rea requirement was applied to an unknown number of the thousands of criminal statutes and regulations already on the books.  Those criticisms are addressed in Mens Rea Reform Act of 2018, which establishes a default intent requirement of willfulness but provides both Congress and federal agencies an extended opportunity to clarify the mens rea requirement with existing laws before the default mens rea standard would apply.