By David Safavian and Kaitlin Owens

Originally published on

Did you know it’s a federal crime to write a check for less than a dollar? So are walking your dog in a national park if your leash is longer than 6 feet and digging for arrowheads on federal lands. As harmless as each of these examples appears, any one could land you in federal prison.

In 1787, there were only three federal crimes: treason, piracy and counterfeiting. By 1870, Congress had added 13 more. Today, there are in excess of 4,000 statutory provisions and an estimated 400,000 regulations, the violation of any one of which could land someone in federal prison. In fact, with the explosion of the regulatory state, one analyst found that the average person unwittingly commits three felonies a day.

The American criminal justice system is in dire need of reform. Thousands of harmless activities are now classified as federal crimes, making it easy for good people to unwittingly commit a crime. Acts like absent-mindedly leaving a plastic cup on a picnic table in a national park, borrowing someone else’s internet connection and, yes, even faking a sick day to get out of work can all land you in federal court facing charges.
Traditionally, federal prosecutors were required to prove “mens rea,” a Latin term for “a guilty mind,” to convict. That is, they had to establish beyond a reasonable doubt that a defendant exhibited a guilty state of mind at the time of a crime. The mens rea requirement differentiated between those who intentionally set out to break the law and those who didn’t.

Over time, many laws and regulations eliminated the mens rea requirement. The result? Thousands of Americans have been convicted and incarcerated for activities no reasonable person would know to be illegal. Not only does this fill our prisons with people who are no public safety threat and don’t belong behind bars, it costs American taxpayers untold millions of dollars.

Some of the examples of the “crimes” that do not require mens rea are astounding. For instance, a man who accidentally removed the wrong coat off a coat rack, a little girl who saved a woodpecker from being eaten by a cat and a famous NASCAR driver who wandered into a protected wilderness area during a blizzard all unknowingly broke the law and faced prosecutors who threatened criminal charges.

Aside from the blatant unfairness of prosecuting someone for violating an absurd law they had no knowledge of and with no guilty intent, these cases eat up an inordinate amount of resources. Why should anti-terrorism and violent crime task forces be starved for funding while the Justice Department uses the criminal justice process to go after a janitor charged with allowing sewage to enter a storm drain? Most prosecutors will say they need to “send a message” or “make an example,” no matter what the financial burden is for the American taxpayer.

Fortunately, Sens. Orrin Hatch (ACUF lifetime rating: 88 percent) and Mike Lee (ACUF lifetime rating: 100 percent) are tackling these issues head-on. In September, Hatch introduced — and Lee co-sponsored — the Mens Rea Reform Act. This legislation would require prosecutors in most federal cases to prove criminal intent. Doing so would instill a degree of fairness and fiscal responsibility in the criminal justice system — values every conservative can support.

The Hatch bill would also protect citizens from agenda-driven prosecutions. The head of Stalin’s secret police during his reign of terror once remarked: “Show me the man, and I will find you the crime.” When the law is written in a way that the difference between freedom and incarceration is merely the prosecutor’s discretion, we have a problem. In a country that honors the rule of law, we should not have to rely on good intentions of a government lawyer.

Ensnaring otherwise law-abiding people in a criminal case when they had no intent to break the law in the first place is as wasteful as it is unfair. The Mens Rea Reform Act is a positive step in restoring the balance of power between individuals and government. In doing so, it will also encourage federal prosecutors to focus on those who pose actual risks to our families and our communities.

David Safavian is an attorney and deputy director of the American Conservative Union Foundation’s Center for Criminal Justice Reform. Kaitlin Owens is a staff member of the Center for Criminal Justice Reform.