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  • Morning Bell: The Congressional Assault on Criminal Justice

    If Congress drafts a law and no one can understand it, can individuals be punished for breaking it? Increasingly, to the detriment of all Americans, the answer is yes. Since our nation’s founding, a core principle of our system of justice has been that no citizen should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful. This principle is embodied in the requirement that the government must prove a defendant acted with intent, or at least knowledge, before subjecting him to criminal punishment. Unfortunately this cornerstone of our criminal justice system has been under assault from Congress in recent decades.

    By the end of 2007, the United States Code included over 4,450 federal crimes, with an estimated tens of thousands more located in the federal regulatory code. Many of these offenses were only recently created, and far too many lack an adequate guilty-mind (known by lawyers as mens rea) requirement. According to a new and unprecedented study released jointly today by The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL), the 109th Congress alone proposed 446 non-violent criminal offenses, 57 percent of which lacked an adequate guilty-mind requirement. The report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, also reveals that 23 of those inadequately protective offenses were even enacted into law.

    Today on Capitol Hill in a rare display of bipartisanship in Washington, Reps. Bobby Scott (D-VA) and Louie Gohmert (R–TX) are holding a joint press conference to announce the report with Heritage’s Ronald Reagan Distinguished Fellow and former U.S. Attorney General Edwin Meese and NACDL’s Executive Director Norman Reimer. “Without Intent” reveals several startling facts about this Congress’ penchant to overcriminalize. These facts indicate that innocent Americans are increasingly at risk of criminal punishment. For example, in the 109th Congress:

    • Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate guilty-mind requirements;
    • Criminal legislation was riddled with vague, far-reaching and imprecise language;
    • Congress routinely delegated its authority to make criminal law to unaccountable regulators;
    • Over half of all new criminal offenses were not sent to the House or Senate Judiciary Committees for review.

    By consistently creating new criminal laws without consulting the special expertise of the two judiciary committees, Congress is endangering civil liberties and placing all Americans at risk of unjust criminal conviction for violating crimes they did not even know they were committing.

    Fortunately, “Without Intent” also makes several critical recommendations that, if followed by Congress, could help ensure all criminal laws are written in ways that average Americans are able to easily identify the conduct that could make them criminals.

    The release of “Without Intent” will be followed today by The Heritage Foundation book event, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. The book tells the stories of individual who have been caught up by these same vague, overbroad criminal laws – laws that pervert the justice system and transform respectable, conscientious Americans into criminals.

    The one-two punch of “Without Intent” and today’s “One Nation” event should finally make clear the extent to which Congress is undermining the integrity of the American criminal justice system. Ordinary Americans should be outraged that most Members of Congress hold their right to be safe from unjustified criminal punishment in such disregard.

    Quick Hits:

    Posted in Ongoing Priorities [slideshow_deploy]

    41 Responses to Morning Bell: The Congressional Assault on Criminal Justice

    1. jerry brown, los ang says:

      I understand what you said, but how does this adage fit in, "Ignorance of the law is no excuse"?

    2. RG St Simons Is Ga says:

      About half way through the book right now. Fascinating and terrifying at the same time.

    3. Patricia, Houston says:

      Its time to get this under control. Do you know of any time more important?

    4. Warren Lyckman Hills says:

      Your statement only covers laws passed by Congress. How about all the laws passed by city counsels, county commissioners, and State legislatures. and in some instances by Boards of Deacons or Churches.

    5. Becky F., Hicksville says:

      I was thinking the same thing, Jerry Brown. That's what I learned in high school, that ignorance of the law is no excuse.

    6. Al Wunsch, Fl says:

      I'm no lawyer, but ignorance of the law assumes that the law is understandable and grounded in reasonable motivation and principles.

    7. MJF, CT says:

      One way to get this under control is to stop turning to the government for everything. I amazes me as to how often I hear how people expect the government to "step in" and take care of the dumbest things.

    8. Stupid Hick says:

      The people who propose and vote to encact these uninterpretable laws are the same people who call proponents of individual freedoms, Nazis. The Nazis system was rife with arbitrary laws that were enforced at the whim of the fuhrer and his agents. The rationale is always the trading of freedom for some security from some perceived danger. These dangers are sometimes real but often imagined or manufactured in order to have the rationale for the law. I often wonder if Lewis Carrol wasn't writing about our times.

    9. Spiff says:

      It is an understatement to say the that this Country is ruled by lawyers, not by law!


    10. philip says:

      americans need to stand up and fighit for their god given rights. act and fight quit complaing and fight this unjustice assualt against our granted freedoms

    11. Mary, CA says:

      There's no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. -Ayn Rand

    12. bigdave ocala fl says:

      So how do you think Lenin and Stalin and Mao and Pol Pot managed to KILL over 100,000,000 PEOPLE?! Simple really…make everyone a criminal and then arrest and shoot anyone you want, especially those who do not buy into the communist/socialist doctrine. Our laws are changing to make even THOUGHT A CRIME and Obama is building up his little secrtt army…get ready folks, this is going to be a rough ride. They will be coming for us soon! Please spread the word about HERITAGE! They may be our only SALVATION! There will always be the braindead though, like Ken in Las Vegas, but most people in Vegas are conservative so don't hold it against the city!

    13. Wynne says:

      The law has become a tool for the rule of men. The points made confirm those of Silverglate's Three FelonysbA Day.

    14. Len, Alexandria,KY says:

      National Security seems to be a secondary issue with this Administration. They are adept at making speeches albeit reherased in unisom like abunch of Lemmings coming out after rehearsals but in effect are really still Stuck on Stupid when it comes to giving out Miranda roghts to TERRORISTS. Protecting out borders for whatever reason, all along just playing politics strictly for self promotions. ENOUGH!

      These Royal Clows in DC are all bend on investigatin Wall Street but are ignoring the need to investigate and properly punish membes of Congress , and major managers of Freddie and Fannie who by their own Corrupted practices and or Ineptmess allowed the current finacial sisaster to take place while syphoning out millions of tax payers doillars via either bonuses not earned or political donations to members of Congress.

      Who will Investigate them?????

    15. Roger / Clarence, NY says:

      Next in the line of progression (maybe it should be "regression") will be "arrest without cause."

    16. Richard Cancemi, Arl says:

      Socialists (Progressives) in government want to control everything! What better way than to pass laws covering everything? Conform or be punished! Forget morality! Legality rules! Government rules!

      Everything about Americanism has been, and continues to be trashed by Progressives. Ignorant and self-serving politicians, supported by ignorant voters give strength to their movement to subjugate free peoples.

      We must reclaim and restore freedom and integrity to our Country and our lives!

    17. Robert Castillo, New says:

      I,m having real trouble sending you any comments at all. Last week I sent a comment and my response was: "Internet cannot display this page". Few minutes ago I was explaining this happenings to you and mysteriously my laptop took me to another page. This just does not happen. Last week I was using my desk top.

      Thus, I'd like to know if you received my opinion from last week and if not, perhaps you could provide me with a secure email address where I can send you my opinions, thank you.

    18. bigdave ocala fl says:

      We are not only all under arrest, Obama's administration(demorats and communists), at the URGING of UNIONS WHICH NEED HELP FUNDING THEIR RETIREMENT PROGRAMS, will soon be coming after your 401Ks, IRAs to be put into a government pile and used as they see fit…mostly for the UNIONS, and you will get a pittance as payment. THIS WILL HAPPEN UNLESS WE TAKE BACK OUR COUNTRY! GET READY TO VOTE CONSERVATIVE.

    19. Jim - Ohio says:


    20. Peter, NY says:

      Ignorance of the law WILL be an acceptable and VALID excuse.

    21. Joe Schiraldi, Texas says:

      This points out the need for a Constitutional amendment which mandates that Congress shall pass no law which does not apply to Congress but does apply to the American people . It spotlights the actions of some Congress people like Congressman Rangle on tax matters.

    22. David Davenport Spo says:

      Old(e) English law we have evidently forgotten read " In the absence of malice there is no crime" ( paraphrased of course)

    23. Drew Page, IL says:

      I have a couple of questions for Jerry Brown, of California. Since illegal immigration into the U.S. is a crime, why do cities like Los Angeles and San Franciso become "sanctuary cities" for illegal aliens? Wouldn't that make them accessories to crime after the fact? Isn't this aiding and abetting criminal activity? These are well publicized laws that eveyone knows about, including the illegals who sneak into the country, but our federal law enforcement agencies charged to enforce these laws refuse to do so.

      "Ignorance of the Law is no excuse", is a concept that has been judicially upheld for years. We obviously don't want those who commit serious crimes to get away with it because they said "I didn't know it was against the law". On the other hand, we are a country with literally millions of laws. It is not possible for anyone to know them all. Even the politicians, from the President on down to a lowly city councilman, who pass these laws don't bother to read them. This has been proven recently and painfully when the Stimulus bill and the health care reform bill were signed into law.

      So how do we resolve these issues? A common sense approach would be to consider what, if any, harm was done by breaking a law of which one was unaware. For that, we must rely on judges who, hopefully, have common sense. Penalizing a person for breaking a law of which he/she was unaware, where little to no harm was done, seems to be too harsh when a simple warning not to repeat the violation would serve just as well.

    24. wallyblu Zion IL says:

      The Government wants to prosecute people with laws that no one understands much less has any real meaning but God help us if some one wants to prosecute an illegal alien.

    25. Blair, Franconia, NH says:

      What if Congress passed a law and all the illegal aliens went home?

    26. joan, connecticut says:

      When, our senators and House members, tell us openly and without shame that we need lawyers to interpret the law as did Senator Conyers, and then to hear House speaker Pelosi, state, "we have to pass the law to find out what is in it", then we are in big trouble folks. . What type of people do we have in Washington that are representing America? It is a job, that could be better handled by grade school children. The ignorance from the mouths of some of the elected officials is mind boggling. Is it any wonder the country is in such bad shape? All these pols want is to keep their career seats and will bow to anyone offering them a way to just that, even if it means betraying the public trust. We need to choose our elected official more wisely and insist on TERM LIMITS!

    27. Clearhead -- U.S.S.O says:

      What's all this about "PUNISHMENT" ? Who gets punishment and where do they get it? Certainly not in our costly "Institutioins of Correction" , although that might really be a place where it could be meted out logically. "WHEN THE SENTENCE FOR A CRIME IS NOT QUICKLY CARRIED OUT, THE HEARTS OF THE PEOPLE ARE FILLED WITH SCHEMES TO DO WRONG" (Eccl. 8:11 – N.I.V.). There simply aren't enough prisons to incarcerate all of the "criminals" dreamed up by our self-serving G.I.s. ("government" idiots)

    28. Dave, Provo, UT says:

      We need to let congress know that every bill should be available to the public on the internet for at least five working days before being voted on. That would include all the attachments, amendments, etc. And if changed in any way would require another five days. Also, all bills with penalties, regulations and legal stipulations must receive a constitutional and legal review that must be posted with the bill. We must make congress accountable to those who elected them.

    29. Jennie Walsh says:

      Talking about criminal justice, what about all the murderers, war-mongers, liars, thieves, counterfeiters (Federal Reserve), extortionists (IRS), all the members of organized crime in every branch of America's government at every level (congress, oval office, judges, lawyers, who are twisting everything around to make honest, freedom-loving people look like the bad guys? I personally think that it is going to take miracles from God to get all of these Satanists out of all the positions of power, authority, leadership and ownership that they have gained by criminal means. I feel very confident that these miracles are happening and will continue to occur until America is purified of all corruption and evil.

    30. Pingback: The Government Is Not Us

    31. ozz, LA says:

      In my opinion the corrupt Obama and his gang of thugs, along with the corrupt house and senate are as desrtructable to this country than the terrorist, even considering the 9-11 attack. It was deplorable and killed over 3000, and injured 1000's more. The Obama administration, house and senate have seriously injured millions. Close the borders, order ALL illegals out immediately, with severe punishment for any illegal found to be remaining. Revoke the illegal citizenship of the anchor babies. And revoke the citizenship of any anti American immigrant.. Put Obama, and his thugs.in prison for life, including Michelle and Pelosi (for aiding and abetting Obama's fraud. Eirter inforce the immigration laws of this country on the federal level immediately or do not interfere with the states doing so.r

    32. Jim Horn, Menifee, C says:

      Stalin's Secret Police Boss made sure there were over 2000 laws on the books. He bragged that armed with those, he could justify arresting and imprisoning anyone in the USSR. The Obama administration, following on predecessors is striving to get 3,500 laws on the books. Armed with those, the USG can slam anyone away for a long, long time on any pretext.


    33. robert williams says:

      As far as the law gose i only go by Gods law the 10 Comandments and no man made law Can get me to Heaven God Has Given Us the 3 g,s Guns to fight for our Freedom Guts To stand up yo the Wrongs of this World And God To win our Battles With the Evals of this World Man can only Take our Life Tempararly But God Will For Following Him Gives Us LIfe Everlasting.We never Louse our Living Sole Becayse Only God Controles that.

    34. Billie says:

      enforcing civil law, the only law equal to all mankind, teaches common law and expectations of each and every person to follow.

      The arbitrary actions of congress is infiltration of a religion to synchronize behaviors in accordance.

    35. Publius Huldah, Cook says:

      The Constitution grants only a limited power to Congress to make criminal laws. See:

    36. Hubert, TX says:

      If NOBODY understands the law we have no problem since NOBODY can apply and enforce it.

      It really does not make any difference since most of the courts legislate from the bench. Nobody knows what the law is until after the judge has imposed his/her will upon the people. That is too late.

      Any law that does not have a unanimous interpretation by the Supreme Court should be null and void. If the best legal minds in the country don't know what the law means how can the people know?

      The law is for the people so we first write it in a language that only lawyers can understand and the we write it in a language that nobody understands. How is that serving the people?

    37. nyc says:

      This is precisely what the Labour Govt. has done to British law upon which the USA laws were founded. Over 3000 crimes added and Habeas Corpus no longer used after a thousand years. Thes demoncraps will make the USA even worse if possible. I had absolutely no idea of this appalling matter in so=called freedom loving USA.

      Where can one go today to escape all this nonsense?

      We thought the Soviet Union was bad but, how is this different?

      The EU is the same. so where is there to run today?

      This must be undone and quickly.

    38. Bert Schwitters; Loo says:

      The proposed Wall Street Reform and Consumer Protection Act (H.R.4173) defines under section 4301(c)(3) "abusive acts or practices" as ones that are "reasonably likely to result in a consumer's inability to understand the terms and conditions of a financial product or service or to protect their own interests in selecting or using a financial product or service; …"

      Placing this definition in the context of the recent "Without intent …" (Walsh) and "One Nation under Arrest" (Meese) publications, would make the intellectual (in)capacity of any simpleton-recipient of commercial speech the bar for an offense and would completely annul the "mens rea" requirement. All that "the 4173 Agency" or any Federal Authority needs to establish is that the recipient of a communication misunderstood its content. Any consumer who pleads "stupidity" may file a complaint against which the "offender" is defenseless, because the simple fact that the "offender's" commercial speech was too difficult to understand constitutes the "offense." The proposed defnition shifts the legal prong from truthfullness to understandability. This is highly problematic, because there exists no legal definition of "understandabilty."

      The effect of H.R.4173's definition of "abusive acts or pratices" could very well spread to fields other than banking and insurance. What to think e.g. of food supplement companies marketing their products under "qualified health claims." Any business operator who makes an effort to be as explicit and precise, as truthful and encompassing as possible in explaining efects of products or services, would run the risk that his explications could be qualified as "too difficult."

      This is how the "without intent" & H.R.4173 combination will also deal a lethal blow to the 1st Amendment.

    39. Jeanne Stotler, wood says:

      Just when someone ha guts enough to stand up to the Gov't. about enforcing laws that are on the book, then all the do-gooders arise and cry foul.. Wonder how they would feel if they came home one night and found another family in their homes, eating their food,etc. Would they just say it's Ok, "we will share all we have with you" I bet not, they would call the Police and press charges. Well this is what is happening on our borders, illegals are coming over and using OUR resources, sending money back to their birth countries while using food stamps, WIC, our ER"s and living in single family homes turned into flop houses which bring down property values of the neighboring homes. We have laws and no where is there anything saying that the law enforcement can pick and choose which ones to uphold. I used to be that INS noe ICE, regularly entered busineses suspected of hiring illegals and if they could not prove status, they deported them ASAP. We got soft and amnesty in the '80's only encouraged more to come and wait for the next one, if amnesty is used now this will be repeated again. The anchor baby stuff should be stopped, the Constitution says children born to those under the law and protection of USA andthose who are aspiring to uphold this country are granted, illegals do not fit in this category. Close our borders, legal as well as illegal until our economy recovers, then enforce our laws diligently.

    40. SAMUEL says:

      Our government is incapable of governing. We have open borders to anyone and everyone, be they mexicans, muslims, africans. These groups enter AMERICA and demand we change to their countries and customs.

      AMERICA will not survive with all the mexicans, lantinos, cubans, muslims, africans entering and demanding we change our life style and our customs and language.









    41. JimmyLynn, Texas says:

      I work with incarcerated individuals and closely with law enforcement. I have observed many people in jail that should not be there. Many laws today do not even require someone to file a complaint. If the complaint is dropped by an individual the State prosecutes. Many laws go to the extreme in order to crackdown on the current poster-boy problems. Drugs for example. In some areas an elderly man driving his car could be pulled over by a police officer and if his wife's medication pill box is in the car he could be arrested for carrying prescription drugs that are not his own in an unmarked container. Many people are indifferent to these cases of injustice because most law-abiding citizens are desensitized concerning incarcerated individuals. Many have the mentality that they are criminals and deserve no consideration. They don't understand that many of these so called criminals are just like them and tomorrow they could be the ones behind bars wondering how this could happen to them. How this could happen to any law-abiding citizen in America. The full weight of an out of control justice system coming to rest fully on their new understanding of the outcast. The judicial system is also racked with the cancerous disease of privilege. If you don't have money you sit in jail, sometimes for a very long time. Your court appointed lawyer dose not care how long you are incarcerated. You're no monetary boon for him/her. Justice today is more and more about money. Who has it and who doesn't.

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