LiStock_000005983304-capitol-bldg3ast week, members of the House Judiciary Committee introduced a package of bills aimed at criminal justice reform. The proposed legislation responds to a groundswell of opposition to a perceived overcriminalization of business activities. Critics have cried for reform and uniformly support reinforcing traditional intent requirements necessary to secure a criminal conviction. The Criminal Code Improvement Act of 2015, introduced by Rep. Jim Sensenbrenner (R-WI), addresses that very concern.

The bill proposes a default “knowing” state of mind requirement for federal criminal offenses where no specific state of mind is currently imposed. In other words, unless a criminal statute prescribes a specific intent, the government must prove the defendant committed the crime and did so knowingly. In addition, where a reasonable person would have no reason to believe the conduct is criminal, the government must prove the defendant knew, or had reason to believe, his conduct was unlawful.

Let’s take a step back. A bedrock principal of our criminal justice system is that a crime requires a guilty act (actus reus) and a guilty mind (mens rea). And while mistake or ignorance of law is not an excuse, the violator must act with some level of criminal intent. For example, the crime must be committed knowingly, willfully or maliciously, particularly where the prohibited conduct is not inherently wrong or where a person would have no reason to believe his acts are criminal. However, a careful look at the more than 4500 federal criminal statutes on the books today, and significantly more criminal regulatory offenses, reveals that criminal intent requirements are lacking. Indeed, a growing number of criminal offenses impose strict liability or something close to it. And there are a bevy of criminal offenses from which prosecutors can choose to enforce what have typically been civil or regulatory violations.

Take, for example, the case of commercial fisherman John Yates, whose battle with the Justice Department (all the way up to the Supreme Court) has served as a lightning rod for the issue of overcriminalization. Yates, a commercial fisherman, was charged with violating the anti-shredding provision of the Sarbanes-Oxley Act (SOX). Not for shredding financial documents – as the post-Enron law was designed – but rather for throwing undersized fish overboard to avoid inspection. While Mr. Yates’ conduct was indeed unlawful, he had no reason to believe he was violating SOX in the process, or risking up to 20 years in prison. As we have previously reported, the Supreme Court agreed, finding that a fish is not a “tangible object” within the context of SOX. Possibly of greater importance, Justices voiced, during oral arguments and in the Court’s opinion, the “real issue” in Yates: overcriminalization and abusive prosecutorial discretion.

The proposed bills are likely to be unfavorable with the Justice Department and its mission to prosecute individuals for corporate wrongdoing. This discussion would not be complete without at least mentioning the other “Yates” central to this issue. The so-called “Yates Memo” pronounces DOJ’s efforts to hold business people criminally liable in addition to their employers. The Yates Memo has been a recent source of frequent commentary and thus does not require further explanation here. It does, however, demonstrate a growing struggle between DOJ and Congress over criminalization and prosecutorial discretion. Strengthening traditional criminal intent requirements may frustrate DOJ’s mission to hold individual corporate officers criminally liable. Of course, the bills must pass first, and that is a discussion for another day.