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Federal Legislation Introduced to Address "Overcriminalization" By Codifying Criminal Intent Requirement

On the heels of the Sentencing Reform Act of 2015's introduction in early October aimed at reforming drug offenses mandatory minimums, last week both the United States House of Representatives and Senate introduced legislation to further address the Federal criminal code's "overcriminalization".

The House Judiciary Committee unanimously voted out of committee the "Criminal Code Improvement Act of 2015" and the Senate introduced the "Mens Rea Reform Act of 2015" both aimed at establishing a default criminal intent requirement.

The House's Criminal Code Improvement Act proposes to establish "knowingly" as the required mens rea where:

"If no state of mind is required by law for a Federal criminal offense-

(1) The state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful."

The Senate's Mens Rea Reform Act proposes a stronger default criminal intent requirement, willfully, and provides in pertinent part,

"...a covered offense shall be construed to require the Government to prove beyond a reasonable doubt that the defendant acted-

(1) With the state of mind specified in the text of the covered offense for each element for which the text specifies a state of mind; and

(2) Willfully, with respect to any element for which the text of the covered offense does not specify a state of mind."

The Senate's proposed legislation further defines "knowingly" as "if the element involves the nature of the conduct of a person or the attendant circumstances, that the person is aware that the conduct of the person is of that nature or that such circumstances exist; and (B) if the element involves a result of the conduct of a person, that the person is aware that it is practically certain that the conduct of the person will cause such a result."

In addition to the Criminal Code Improvement Act, the House Judiciary Committee also introduced the following three (3) bills in furtherance of its criminal justice reform initiative:

1. The Regulatory Reporting Act of 2015 proposes requiring all Federal Agencies to submit to Congress a report listing every agency rule, and the necessity thereof, where a violation is punishable by a criminal penalty

2. The Clean Up the Code Act of 2015 proposes eliminating unused portions of the Federal Criminal Code such as the following:

a. 18 U.S.C. § 46 - Transportation of water hyacinths;

b. 18 U.S.C. § 511A - Unauthorized application of theft prevention decal or       device;

c. 18 U.S.C. § 707 - 4-H club emblem fraudulently used;

d. 18 U.S.C. § 708 - Swiss Confederation coat of arms;

e. 18 U.S.C. § 711 - ''Smokey Bear'' character or name; and

f.  18 U.S.C. § 711 - ''Woodsy Owl'' character, name, or slogan.

3. The Fix the Footnotes Act of 2015 - proposes technical changes to the Federal Criminal Code to address drafting errors made by Congress.

If you or someone you care about has any questions regarding Federal Crimes or have been charged with a Federal Crime, please contact Attorney Michael C. Hennenberg to schedule a consultation.

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