Criminal Intent Protection Act

Criminal Intent Protection Act

Summary

To protect persons from unjust punishment under vague or ambiguous criminal offenses by codifying default rules of application for criminal intent (mens rea) requirements within criminal law.

Model Policy

{Title, enacting clause, etc.}

Section 1. {Title.}  This Act may be cited as the “The Criminal Intent Protection Act.”

Section 2. {Legislative Purpose and Findings.}

The purpose of this Act is to enact default rules of application to ensure that criminal intent (mens rea) requirements are adequate to protect persons against unjust charges and convictions where the law has heretofore failed to clearly and expressly set forth the criminal intent (mens rea) requirements in the text defining the offense or penalty.

Section 3. {Culpability Requirements.}

(A) Culpability Requirements.

(1) The provisions of this section shall apply to any criminal offense or penalty.

(2) Criminal Intent Required Unless Otherwise Provided – When the language defining a criminal offense or penalty does not specify the criminal intent required to establish an element of the offense or penalty, then such element shall be established only if a person acts:

(a) with the conscious object to engage in conduct of the nature constituting the element;

(b) with the conscious object to cause such a result required by the element;

(c) with an awareness of the existence of any attendant circumstances required by the element or with the belief or hope that such circumstances exist; and

(d) with either specific intent to violate the law or with knowledge that the person’s conduct is unlawful.

(3) Prescribed Criminal Intent Requirement Applies To All Elements – When the language defining a criminal offense or penalty specifies the criminal intent required to establish commission of an offense or imposition of a penalty without specifying the particular elements to which the criminal intent requirement applies, such criminal intent requirement shall apply to all elements of the offense or penalty, including jurisdictional elements.

(4) For the purposes of this section, the following definitions apply:

(a) The term “criminal offense” shall include any portion of a statute, rule, or guidance that defines one or more elements of a violation of law that may be punished by a criminal penalty.

(b) The term “penalty” shall include any criminal fine, criminal restitution, criminal forfeiture, term of imprisonment or confinement, probation, debarment, or sentence of death imposed upon a defendant by the authority of the law and the judgment and sentence of a court.

(c) The terms “person,” “he,” and “actor” shall include any natural person, corporation, or unincorporated association.

(d) The term “rule” shall have the definition set forth in section _____ of this title and shall include any interpretive rule, guidance, or other agency publication that may have the effect of altering the scope of state criminal liability of any person or entity, but shall not include any order issued as part of an adjudication under section ____of this title.

(e) The term “guidance” shall include any guidance, interpretative statement, or binding enforcement policy issued by any agency.

(f) The term “agency” shall have the definition set forth in Title 5, United States Code, Section 551(1) [or cite to state equivalent if applicable].

(g) The term “element” shall mean (i) such conduct, (ii) such attendant circumstances, or (iii) such a result of conduct as:

(i) is included in the description of the forbidden conduct in the definition of the offense; or

(ii) establishes the required kind of culpability; or

(iii) negatives an excuse or justification for such conduct; or

(iv) negatives a defense under the statute of limitations; or

(v) establishes jurisdiction or venue.

Section 4. {Severability clause.}

If any provision of this [Act] or the application thereof to any person or circumstance is held unconstitutional or otherwise invalid, the remaining provisions of this [Act] and the application of such provisions to other persons or circumstances shall not be affected thereby.

Section 5. {Repealer clause.}

Section 6. {Effective date.}

 Approved by ALEC Board of Directors on June 7, 2011.

Keyword Tags: Justice Performance Project Task Force, Overcriminalization