Mens rea issue among the concerns raised in criminal justice reform

We have previously written about the efforts President Obama has made to reform the criminal justice system, which has been a focal point of his presidency. Last week, in his State of the Union address, President Obama made a point to highlight the issue.

One area of hoped-for compromise between liberals and conservatives concerns a package of criminal justice reform bills. One President Obama's end, the bills contain important provisions which would reduce mandatory minimum sentences for certain drug offenses, as well as provisions which would reduce sentences for inmates who participate in programs designed to address recidivism. One of the challenges in getting the bills passed, though, is that Republican lawmakers want to compromise by expanding requirements pertaining to the mens rea element of certain criminal offenses.

Mens rea refers to criminal intent or the mental state of the offender in carrying out the offense, as opposed to the specific actions that were taken. Criminal statutes generally recognize varying levels of mens rea, ranging from acting purposefully and intentionally to acting with negligence. In between are the mens rea levels of recklessly and knowingly. These mental states are distinguished in the Model Penal Code, which has served as the basis for criminal justice statutes in many states.

Expansion of the mens rea requirement would especially benefit those in business since prosecutors would be required to show that a defendant knew or should have known he or she was breaking the law. For liberals, expanding the mens rea requirement would prevent prosecutors from pursuing white collar crimes such as fraud.

It remains to be seen what kind of deal, if any, might be struck in Congress on criminal justice reform, but it is clear at the moment that prosecutorial requirements are part of the discussion. In our next post, we'll look a bit more at the concept of mens rea in fraud cases.


National Journal, "Obama's Capitol Hill Wish List: A Few Possibilities Peek Through in SOTU," Ben Geman, Jan. 12, 2016.

University of Dayton, "Model Penal Code, Section 2.02 General Requirements of Culpability," Accessed Jan. 20, 2016.


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