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Washington, DC
United States
Chairman [Chuck] Grassley, Senator [Dick] Durbin and distinguished members of the committee – thank you for the opportunity to appear this morning to provide the perspective of the Department of Justice on potential reforms to the federal criminal code concerning mens rea requirements.
This issue, and today’s hearing, is of great importance to the department and our prosecutors. The department has grave concerns about possible enactment of an across-the-board, default mens rea standard, which will seriously harm our basic ability to prosecute federal crimes.
The establishment of a default mens rea standard for all existing federal criminal laws would unleash sweeping changes across the entire United States Code. It would create massive uncertainty in the law, undermine the enforcement of many criminal laws and allow defendants charged with serious crimes – including terrorism, violent crime, child exploitation offenses and corporate fraud – to tie up federal courts in extensive litigation and potentially escape liability for very serious criminal conduct.
There simply is no need for a sweeping, one-size-fits-all, default mens rea. The vast majority of federal criminal statutes already require the government to prove beyond a reasonable doubt some level of mens rea for at least one or more elements of the crime – whether expressly, or as a matter of binding judicial precedent.
However, pending legislative proposals in both the House and Senate would apply a default mens rea standard to a wide array of existing federal criminal laws, affecting many statutes that do not contain an express mens rea for each and every element.
For example:
Mr. Chairman, these are just a few examples of the potential havoc that a default mens rea proposal could wreak on prosecutors in their efforts to combat serious violent crime and terrorism, and to protect our children from exploitation and abuse.
Moreover, proposals for a default mens rea would severely weaken important statutes that are critical to protecting health and safety, for example those that punish the sale of contaminated foods and drugs which can – and have – sickened and killed people.
Mr. Chairman, an across-the-board, default mens rea standard would seriously undermine important prosecutions. However, the department is willing to work with this committee on any concerns members have regarding specific federal statutes. And, we support the proposal that would require an inventory of federal criminal laws and identification of laws that lack an explicit mens rea requirement.
Finally, the department hopes that the debate regarding mens rea does not prevent passage of critical sentencing reform legislation.
Thank you again for inviting the department to this hearing. We appreciate the opportunity to discuss criminal code reform, and I would be happy to answer any questions you might have.