Guest Commentary

Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers

 Honoring Law Day 2010: Enduring Traditions, Emerging Challenges, the National Association of Criminal Defense Lawyers (NACDL) and the Heritage Foundation this week challenged Congress with the release of our joint report and recommendations, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. This report was the product of tremendous research by both organizations, and we are confident it will serve as an important blueprint for legislative reform.

In a joint press conference on Capitol Hill on Wednesday, May 5, Rep. Bobby Scott (D-VA) and Rep. Louie Gohmert (R-TX), the Chairman and Ranking Member of the House Crime Subcommittee, respectively, sponsored the release of this groundbreaking, non-partisan report. NACDL Executive Director Norman Reimer and Former Attorney General Edwin Meese also spoke.

In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes lacking adequate criminal intent protection for innocent actors. NACDL and Heritage undertook an unprecedented study of the federal legislative process which yielded this report. Among the study’s findings, we determined that during just the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57 percent lacked an adequate guilty-mind requirement, and 23 of those inadequately protective offenses were even enacted into law.

This study reflects an ongoing, and largely ignored, problem in Congress that requires immediate attention and reform. As set forth in the report, “A core principle of the American system of justice is that no one should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.” And yet, as criminal defense lawyers, we are witnessing this troubling phenomenon on an ever-increasing basis.

In his presentation on Wednesday at the Capitol, NACDL’s Norman Reimer made the challenge to Congress clear:

We are here to urge every elected official to end the madness that has produced over 4,450 federal criminal statutes, and tens of thousands more arising from the unchecked power of regulatory authorities, adding that Law Day 2010 should mark the beginning of a return to the tradition of fairness and justice in the exercise of Congress’s most awesome power, the power to brand a person a criminal.

The report offers common sense Congressional reforms demanded by the study’s conclusions:

  • Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
  • Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
  • Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
  • Provide detailed written justification for and analysis of all new federal criminalization.
  • Redouble efforts to draft every federal criminal offense clearly and precisely.

Report and Appendix: http://www.nacdl.org/withoutintent
Fact Sheet: Without Intent Fact Sheet
Executive Summary: Without Intent Executive Summary