Playing with the Rules: An Effort to Strengthen the Mens Rea Standards of Federal Criminal Laws

Abstract

This essay, focusing on regulatory and white collar crimes, reviews the role of the current mens rea standards in the federal trend to overcriminalize. In the federal system, the combination of passing more criminal laws and deferential judicial interpretation has, over time, weakened the role of mens rea in determining guilt. Strengthening the mens rea standards so the element properly identifies those who merit punishment would eliminate one cause of overcriminalization. In three parts, this article reviews the congressional propensity to criminalize conduct, reviews the significance of mens rea in criminal law doctrine, and analyzes new proposals aimed at strengthening mens rea standards.

Keywords: regulatory crimes, white collar crime, mens rea, overcriminalization, federal criminal law, public welfare offenses, Flores-Figueroa, lenity