The Washington discussion has missed an important point in criminal justice reform.
There has been a lot of talk lately on Capitol Hill about criminal justice reform, and it is expected that both the House and the Senate will take up the issue now that Congress is back in session.
Rumor has it that behind-the-scenes discussions are taking place to try to forge bipartisan, bicameral compromise on the issue.
A more accurate description of what is being discussed, however, is criminal sentencing reform.
While this is a generally positive development, in some ways the discussion has been woefully incomplete, which is both disappointing and surprising.
What’s been missing from the discussion so far? Mens rea reform.
While sentencing reform addresses how long people should serve once convicted, mens rea reform addresses those who never should have been convicted in the first place—people who engaged in conduct without any knowledge of or intent to violate the law and which they could not have reasonably anticipated would violate a criminal law.
It is therefore disappointing that mens rea has not been in the reform conversation, because one of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address societal problems—is ensuring that there is an adequate mens rea requirement in criminal laws.
It is also surprising because mens rea reform was a consistent theme throughout the year-long set of hearings conducted by the U.S. House of Representatives Committee on the Judiciary’s Over-Criminalization Task Force.