Heritage, NACDL Session Weighs In on Criminal Intent

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An unusual coalition of the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) recently issued a study entitled “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law.” See this blog’s discussion at Crime in the Suites: Has Congress Eroded the Intent Requirement in Criminal Law? and the discussions on the Letter of Apology and the Sentencing Law and Policy blog. On May 24, the foundation hosted a panel to discuss the study’s conclusions that a disturbing trend toward overcriminalization is under way. Panelists included Brian Walsh (Heritage Foundation), Norman Reimer (NACDL), Andrew Weissmann (Jenner & Block LLP) and Eric Grannon (White & Case LLP).

According to the study, Congress has passed a significant amount of criminal legislation that is vague, overbroad, and lacking adequate mens rea requirements. During the discussion, the panelists contended that the problems are essentially traceable to one central issue – poor drafting. Panelists were also disturbed by Congress’ increasing delegation of legislative authority to bureaucrats, who define criminal conduct (perhaps less carefully) by way of informal rulemaking.

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