As the recent Presidential election attested, Florida regularly commands the national spotlight. This is evident in the world of criminal justice.

An adequate mens rea (which is legalese for a “guilty mind”) requirement in all criminal laws protects anyone that did not intend to commit a crime from unjustly being exposed to criminal prosecution and the unfortunate consequences that result. The collateral consequences of even an arrest, in itself, regardless of whether the charges are dismissed or an individual is ultimately prosecuted, convicted or sentenced can dramatically impact an individual’s future job prospects or higher education admissions. The erosion of this protection should be unsettling, especially to Floridians.

Mens rea is a foundational anchor of the American criminal justice system and even predates the days of the founding fathers. At its core, this concept requires an individual to have intended to commit a crime before he can be subjected to the criminal punishment associated with that crime. It is the moral justification for bringing to bear on a single individual the incredible might of the government. Ensuring that every law has an adequate criminal intent requirement preserves society’s faith in the criminal justice system.

Because the greatest power that any civilized government routinely uses against its own citizens is the power to prosecute and punish under criminal law, this power must be vigilantly scrutinized and checked. More than any other area of law, criminal law must be firmly grounded in fundamental principles of justice, for its abuse (intended or not) by elected and unelected public servants alike can rob well-intentioned citizens of their most sacred, unalienable right: Liberty.

This criminal law anchor is based on a stalwart constitutional principle: fair notice. The Due Process clause of the Constitution requires that before a person can be criminally punished, that person must be given adequate notice that the conduct in question was prohibited. Only when the government has made its edicts clear, should a person be subjected to condemnation and prolonged deprivation of liberty, and all the serious, life-altering collateral consequences that follow.

Over the last several decades, however, the protections that an adequate criminal intent requirement provide have been systematically eroded away by hastily enacted and overly broad legislation. This legislation has often then been implemented, administered, and enforced by a plethora of additional criminal regulations drafted by unelected government agencies with no direct accountability to the public. The end result is that there are now hundreds of thousands of federal criminal laws and regulations on the books that are so broadly defined that most anyone can be deemed a “criminal.” Of course, this is not what James Madison intended when he drafted what would become the framework for the Constitution of the United States.

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