Components of Federal Criminal Law
Congressional research reportSep 12, 2024
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Components of Federal Criminal Law
September 12, 2024
Congressional Research Service
https://crsreports.congress.gov
R48177
SUMMARY
Components of Federal Criminal Law
Congress has enacted many federal criminal laws covering topics as diverse as drug trafficking,
immigration, assault, computer hacking, bribery, and wildlife trafficking, among others.
Congress’s continuing interest in establishing criminal penalties for conduct in a wide range of
areas presents the question: What are the requisite components of a valid federal law that is
criminal in nature? This report examines that question, focusing on core components of a federal
criminal law: (1) jurisdictional basis; (2) prohibited conduct; (3) mental states; and (4) penalties.
R48177
September 12, 2024
Peter G. Berris,
Coordinator
Legislative Attorney
Michael A. Foster
Section Research Manager
•
Jurisdictional Basis. A jurisdictional basis addresses Congress’s constitutional
authority to enact a criminal law. While the states possess a general police power to
enact and enforce laws carrying criminal penalties, and most criminal law exists at the
state level, several enumerated powers in the Constitution may provide Congress with
the basis to enact federal criminal prohibitions, such as the authority to regulate interstate and foreign
commerce; to protect federal property and personnel; and to secure certain rights under the Thirteenth,
Fourteenth, and Fifteenth Amendments.
•
Prohibited Conduct. Assuming that there is a source of constitutional authority to enact a criminal law,
Congress may define the behavior or activity that is to be criminalized—that is, the prohibited conduct. A
key requirement of prohibited conduct is an act (affirmative conduct) or omission (a failure to act), though
exact formulations of the concept vary. Questions that may arise in defining proscribable conduct include
the potential line between thoughts and speech, and special considerations for status offenses (e.g.,
criminalizing a condition) and inchoate offenses (e.g., solicitation, conspiracy, attempt).
•
Mental States. With exceptions, criminal laws generally require not only a guilty act but also a guilty
mind. The requirement of responsibility or blameworthiness implicates numerous, nuanced questions. For
example, where on a spectrum of mental culpability should someone fall to trigger criminal liability under a
statute, and what terminology can be used to identify that point? What happens if Congress omits a mental
state requirement? If Congress includes a mental state requirement, to what portions of the prohibited
conduct will it apply? Imprecise and variable terminology may complicate the answers to many of these
questions. There is no centralized or standardized mental state framework at the federal level, meaning that
the mental state required for a federal criminal offense depends on an array of interpretive tools, including
context and caselaw.
•
Penalties. Congress has authorized a variety of penalties in federal criminal statutes, including
imprisonment, capital punishment, fines, criminal asset forfeiture, and restitution. The Eighth Amendment
may limit the availability of these penalties, particularly in the context of capital punishment, in light of the
amendment’s prohibition of cruel and unusual punishment.
Congressional Research Service
Components of Federal Criminal Law
Contents
Jurisdictional Basis .......................................................................................................................... 2
Commerce Clause ..................................................................................................................... 3
Select Examples of Interstate Commerce as Jurisdictional Basis ....................................... 5
Special Maritime and Territorial Jurisdiction ............................................................................ 7
Select Examples of SMTJ as Jurisdictional Basis .............................................................. 8
Federal Property as Jurisdictional Basis.................................................................................... 8
Federal Personnel as Jurisdictional Basis................................................................................ 10
Select Examples of Federal Personnel as Jurisdictional Basis.......................................... 10
Reconstruction-Era Amendments .............................................................................................11
The Thirteenth Amendment ...............................................................................................11
The Fourteenth Amendment ............................................................................................. 13
The Fifteenth Amendment ................................................................................................ 17
Prohibited Conduct (Actus Reus)................................................................................................... 19
Requirement of a Voluntary Act .............................................................................................. 21
Omission and Possession .................................................................................................. 22
Status Offenses.................................................................................................................. 23
Inchoate Offenses.............................................................................................................. 25
Thoughts and Speech ........................................................................................................ 26
Other Elements ........................................................................................................................ 27
Circumstances ................................................................................................................... 28
Results ............................................................................................................................... 30
Jurisdiction and Venue ...................................................................................................... 31
Mental State ................................................................................................................................... 32
Selecting a Mental-State Requirement .................................................................................... 33
Background on Mental-State Requirements at Common Law ......................................... 33
MPC Approach to Mental States....................................................................................... 35
Federal Approach to Mental States ................................................................................... 36
Omitting a Mental State Requirement ..................................................................................... 44
Distribution of Mental State Requirement to Prohibited Conduct and Other Elements ......... 46
Punishment .................................................................................................................................... 49
Imprisonment .......................................................................................................................... 50
Capital Punishment ................................................................................................................. 52
Financial Consequences .......................................................................................................... 53
Fines .................................................................................................................................. 53
Criminal Asset Forfeiture .................................................................................................. 55
Restitution ......................................................................................................................... 55
Tables
Table 1. Default Federal Criminal Fines ....................................................................................... 54
Contacts
Author Information........................................................................................................................ 56
Congressional Research Service
Components of Federal Criminal Law
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Components of Federal Criminal Law
C
riminal offenses are generally established by the legislative branch of government.1 At the
federal level, this process dictates that Congress enacts criminal statutes and authorizes the
relevant penalties for violations.2 When Congress seeks to enact legislation that would
impose criminal penalties, considerations regarding constitutional authority and the requisite
elements of criminal law necessarily arise.3
Consider the example of theft. Imagine that Congress wished to add a new federal theft statute to
the U.S. Code.4 That process might raise several questions. First, does Congress have
constitutional authority to criminalize theft? For example, is there some nexus between a source
of such constitutional authority (say, the power to regulate interstate and foreign commerce) and
the particular type of theft? Second, how can Congress describe the particular type of theft it
wants to prohibit? Does the conduct to be proscribed include only certain types of goods, items
only of a certain value, or theft only from certain places? Third, how culpable must a person be to
fit within the confines of the statute? Must a person consciously intend to commit the theft? What
if the person is merely negligent? Fourth, what penalties may Congress authorize for someone
convicted of violating the theft statute? Does a violation of the theft statute subject the individual
to fines and imprisonment, for example? Does the scale of the theft affect the amount of the
punishment, and if so, at what amounts do penalties further increase?
The answers to these questions may vary, but each inquiry implicates key legal considerations
regarding the scope and content of criminal statutes, which correspond to key components of
federal criminal law:5 (1) jurisdictional basis; (2) prohibited conduct; (3) mental states; and (4)
1 See, e.g., United States v. Santos, 553 U.S. 507, 523 (2008) (plurality opinion) (“[E]ven if . . . statutory ambiguity
‘effectively’ licenses us to write a brand-new law, we cannot accept that power in a criminal case, where the law must
be written by Congress.” (citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)).
Congress may authorize the executive branch to develop the exact parameters of certain criminal conduct through
regulations. See, e.g., 16 U.S.C. § 690g (“Any person who shall violate or fail to comply with any provision of, or any
regulation made pursuant to sections 690d to 690i of this title shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall be fined not more than $500 or be imprisoned not more than six months, or both.”). Even so,
only Congress may set the authorized penalties. L.P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) (“[I]t is for
Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the
administrative function to make additions to those which Congress has placed behind a statute.”). For example, a
plurality of the Supreme Court concluded that Congress did not unconstitutionally delegate its legislative authority in a
federal statute that allowed the Attorney General to make certain determinations about who should be subject to
criminal penalties for failure to register as a sex offender. Gundy v. United States, 588 U.S. 128, 145 (2019) (plurality
opinion).
The crime of treason is somewhat anomalous in that it is defined by the Constitution, although it has been codified by
Congress in a statute authorizing penalties for violations. U.S. CONST. art. III, § 3, cl. 1; 18 U.S.C. § 2381.
2 See, e.g., United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (“When Congress has identified a particular scourge
and, using reasoned judgment, articulated a response, courts must step softly and cede a wide berth to the Legislative
Branch’s authority to match the type of punishment with the type of crime.”).
3 For a discussion of the philosophical underpinnings of criminal punishment, see generally CRS Legal Sidebar
LSB10929, Can Retribution Justify the Revocation of Supervised Release? Courts Disagree., by Dave S. Sidhu (2023).
For a discussion of the line between criminal laws and noncriminal laws, see generally CRS Legal Sidebar LSB11033,
The Supreme Court’s Narrow Construction of Federal Criminal Laws: Historical Practice and Recent Trends, by Dave
S. Sidhu (2023).
4 See, e.g., 18 U.S.C. § 641 (criminalizing theft of public property); id. § 661 (proscribing theft in the special maritime
and territorial jurisdiction of the United States); id. § 667 (prohibiting theft of livestock); id. § 668 (authorizing
penalties for theft of certain artwork).
5 This report focuses only on substantive criminal law. The report does not address criminal procedure, which “is
concerned with the legal steps through which a criminal proceeding passes, from the initial investigation of a crime
through the termination of punishment.” WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 1:1 (3d ed. 2023). A
discussion of the federal rules of criminal procedure and Congress’s role in creating them may be found in CRS In
Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by Joanna R. Lampe (2022).
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penalties.6 This report discusses these four foundational elements of federal criminal law. It
begins with jurisdictional bases, which link criminal prohibitions to a source of constitutional
authority for Congress to legislate. The report describes the respective and relative authority of
the federal and state governments to enact criminal laws and summarizes several sources of
constitutional authority that Congress can potentially rely on in the criminal context. The report
then discusses considerations relevant to defining the proscribable conduct and the attendant
mental states required of a person to violate a given law. Finally, the report offers a brief overview
of the various types of criminal penalties Congress may consider imposing—including
imprisonment, capital punishment, fines, asset forfeiture, and restitution—as well as certain
constitutional limitations applicable to criminal penalty provisions.
Jurisdictional Basis
When enacting criminal laws, state legislatures have a luxury that Congress does not—a general
police power.7 The police power refers to the “inherent and plenary power of a sovereign to make
all laws necessary and proper to preserve the public security, order, health, morality, and justice.”8
The Constitution reserves the police power to state governments, meaning that legislating to
prohibit crime is a task that lies primarily within the purview of the states.9 In contrast, the
Constitution provides no such general police power to the federal government.10 Instead,
Congress can enact federal criminal statutes only pursuant to “one or more of its powers
enumerated in the Constitution.”11 Federal criminal statutes—whether expressly or not—must
therefore have a jurisdictional basis connecting the prohibited conduct to a source of
constitutional authority.12
At the federal level, the jurisdictional bases invoked by Congress may in turn inform the
substantive scope and framing of criminal legislation. For instance, intentionally killing another,
without more, may lack a nexus to a congressional source of authority for proscribing it (though
this conduct would surely constitute an offense subject to state law).13 A federal law could be
enacted, however, if it prohibits killing when it involves interstate commerce,14 racial violence
6 Models and formulations of the essential components of a criminal law and the meaning of each vary. See infra
“Requirement of a Voluntary Act” (describing, for example, the various ways the concept of an act has been
interpreted).
7 United States v. Morrison, 529 U.S. 598, 618 n.8 (2000) (“Moreover, the principle that ‘[t]he Constitution created a
Federal Government of limited powers,’ while reserving a generalized police power to the States, is deeply ingrained in
our constitutional history.” (quoting New York v. United States, 505 U.S. 144, 155 (1992))).
8 Police Power, BLACK’S LAW DICTIONARY (12th ed. 2024); see also Metro. Life Ins. Co. v. Massachusetts, 471 U.S.
724, 756 (1985) (“The States traditionally have had great latitude under their police powers to legislate as ‘to the
protection of the lives, limbs, health, comfort, and quiet of all persons.’” (quoting Slaughter-House Cases, 16 Wall. 36,
62, 21 L.Ed. 394 (1873)).
9 See U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.”); Morrison, 529 U.S. at 618 (“Indeed, we can think
of no better example of the police power, which the Founders denied the National Government and reposed in the
States, than the suppression of violent crime and vindication of its victims.”).
10 Morrison, 529 U.S. at 618.
11 Id. at 607.
12 See infra “Commerce Clause”; “Special Maritime and Territorial Jurisdiction”; “Federal Property as Jurisdictional
Basis”; “Federal Personnel as Jurisdictional Basis”; “Reconstruction-Era Amendments.”
13 E.g., CONN. GEN. STAT. ANN. § 53a–54a.
14 See, e.g., 18 U.S.C. § 249(a)(2)(B) (listing various circumstances, many of which involve commerce, that may
trigger a provision prohibiting willfully causing bodily injury to another because of certain biases).
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prohibited by the Thirteenth Amendment,15 a victim who is a federal employee, or a victim
located where the federal government has jurisdiction.16 Each of these illustrations reflects a
jurisdictional basis that Congress has used to enact criminal laws. This section provides an
abbreviated overview of several common jurisdictional bases in federal criminal legislation.
These bases are found primarily in Article I, Section 8 of the Constitution, which enumerates the
powers of Congress, and in Reconstruction Amendments to the Constitution, which empower
Congress to enforce these respective civil-rights-related amendments. A more comprehensive
overview of Congress’s legislative authority may be found in other CRS products.17
Necessary and Proper Clause
One constitutional source of authority relevant to federal criminal law is Congress’s power to “make all Laws
which shall be necessary and proper for carrying” out other Constitutional powers. U.S. CONST. art. I, § 8, cl. 18.
This provision—commonly known as the Necessary and Proper Clause—is “typically understood not as an
independent grant of congressional power, but as an extension of all the other powers vested in the federal
government, including Congress’s enumerated Article I powers.” CRS Report R45323, Federalism-Based Limitations
on Congressional Power: An Overview, coordinated by Kevin J. Hickey, at 22 (2023) (footnote omitted). As numerous
examples below illustrate, courts frequently interpret federal criminal statutes as grounded in a combination of the
Necessary and Proper Clause and some underlying source of congressional authority like the Property or Enclave
Clause. See United States v. Comstock, 560 U.S. 126, 156 (2010) (Alito, J., concurring) (explaining that “most
federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers
conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is
obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal
prison system”).
Commerce Clause
The Commerce Clause, found in Article I, Section 8, clause 3 of the Constitution, grants Congress
the power to “regulate Commerce with foreign Nations, and among the several States.”18 This
provision gives Congress fairly broad authority, and many federal criminal statutes rely on
Congress’s authority under the Commerce Clause.19 In United States v. Lopez, the Supreme Court
held that Congress’s authority to regulate interstate commerce under the clause extends to “three
broad categories of activity”:20
15 See, e.g., 18 U.S.C. § 249(a)(1) (criminalizing willfully causing bodily injury because of actual or perceived race,
color, religion, or national origin); see also United States v. Cannon, 750 F.3d 492, 498 (5th Cir. 2014) (explaining that
“§ 249(a)(1) rests solely on Congress's authority under § 2 of the Thirteenth Amendment”).
16 E.g., 18 U.S.C. §§ 1111(b), 1114.
17 See generally CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview,
coordinated by Kevin J. Hickey (2023).
18 U.S. CONST. art. I, § 8, cl. 3. The Commerce Power also extends to “Commerce . . . with the Indian Tribes.” Id.
19 E.g., 18 U.S.C. § 33(a) (imposing fines, imprisonment, or both for certain acts of destruction to “any motor vehicle
which is used, operated, or employed in interstate or foreign commerce”); id. § 1030(a)(6) (prohibiting computer
password trafficking if “such trafficking affects interstate or foreign commerce” or if it impacts a federal government
computer); id. § 1201(a)(1) (proscribing kidnapping when a “person is willfully transported in interstate or foreign
commerce”); id. § 1343 (criminalizing intentional participation in schemes to defraud involving wire, radio, or
television communications transmitted in interstate or foreign commerce); see also United States v. DiSanto, 86 F.3d
1238, 1244 (1st Cir. 1996) (“Congress has often invoked its authority under the Commerce Clause to
federalize criminal activity.”).
20 514 U.S. 549, 558 (1995).
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1. “Channels of interstate commerce,”21 generally the “physical conduits” necessary
for interstate commerce to take place,22 such as highways and
telecommunications networks;23
2. “Instrumentalities of interstate commerce, or persons or things in interstate
commerce,”24 such as “automobiles, airplanes, boats . . . shipment[s] of goods
. . . ‘pagers, telephones, and mobile phones’”;25 and
3. “Those activities having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.”26
Under the third category, Congress may regulate intrastate conduct if it involves an economic
activity that substantially affects interstate commerce when viewed in the aggregate.27 For
example, even purely local conduct, such as an individual’s “production of [a] commodity meant
for home consumption,” may fall within Congress’s commerce power if Congress has a rational
basis to conclude that in the aggregate such conduct substantially affects “supply and demand in
the national market for that commodity.”28
In United States v. Morrison, the Supreme Court outlined four relevant considerations in
determining whether conduct prohibited by a statute substantially affects interstate commerce.29
The first consideration is whether the prohibited activity is commercial or relates to an economic
enterprise.30 Second, courts look to whether the statute at issue contains an “express jurisdictional
element” limiting its reach to conduct affecting interstate commerce through case-specific
inquiry.31 The presence of an express jurisdictional factor weighs significantly in favor of a statute
being an appropriate exercise of Congress’s interstate commerce authority.32 Third, courts
examine whether the statute’s “express congressional findings” concern the effect of the
21 Id.
22 Cong. Rsch. Serv., ArtI.S8.C3.6.2 Channels of Interstate Commerce, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C3-6-2/ALDE_00013419/ (last visited Sept. 9, 2024).
23 United States v. Roof, 225 F. Supp. 3d 438, 452 (D.S.C. 2016).
24 Lopez, 514 U.S. at 558.
25 United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (internal citations omitted) (quoting United States v.
Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004), vacated, 544 U.S. 902 (2005)).
26 Lopez, 514 U.S. at 558–59 (citation omitted). At least some federal courts have interpreted the extent of Congress’s
power over foreign commerce under the clause to be different from its power over interstate commerce. See, e.g.,
United States v. Rife, 33 F.4th 838, 843–44 (6th Cir.) (holding that Congress’s power over foreign commerce contains
no equivalent to the third Lopez category), cert. denied, 143 S. Ct. 356 (2022); see also CRS Legal Sidebar LSB10767,
Congress’s Foreign Commerce Clause Power Questioned, by Charles Doyle, at 1–2 (2022) (surveying case law and
discussing Rife).
27 Taylor v. United States, 579 U.S. 301, 306 (2016).
28 Gonzales v. Raich, 545 U.S. 1, 19, 22 (2005).
29 529 U.S. 598, 610–12 (2000). For an example of how lower courts may apply these factors in practice, see generally
United States v. Roof, 225 F. Supp. 3d 438, 452–56 (D.S.C. 2016).
30 Morrison, 529 U.S. at 610.
31 Id. at 611–12; Roof, 225 F. Supp. 3d at 452; accord United States v. Gibert, 677 F.3d 613, 625 (4th Cir. 2012) (“We
next consider . . . whether the statute at issue contains an express element limiting the statute’s reach to activities
having an explicit connection with or effect on interstate commerce.”).
32 See United States v. Coleman, 675 F.3d 615, 620 (6th Cir. 2012) (“Where a statute lacks a clear economic purpose,
the inclusion of an explicit jurisdictional element suffices to ‘ensure, through case-by-case inquiry, that the [violation]
in question affects interstate commerce.”’ (brackets in original) (quoting United States v. Lopez, 514 U.S. 549, 561
(1995)); see also United States v. Hill, 927 F.3d 188, 204 (4th Cir. 2019) (“Notably, Defendant has not identified any
case—nor have we found any such case—in which a federal criminal statute including an interstate commerce
jurisdictional element has been held to exceed Congress’s authority under the Commerce Clause.”).
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prohibited conduct on interstate commerce.33 According to at least one federal district court,
“[c]ongressional findings may weigh in favor of the validity of a statute,” but their absence
“cannot weigh against the validity of a statute.”34 The fourth consideration is the degree of
attenuation between the prohibited conduct and its effect on interstate commerce.35
Select Examples of Interstate Commerce as Jurisdictional Basis
As discussed, statutes that contain a jurisdictional element—language limiting the statute to
conduct connected to or affecting interstate commerce—“may establish that the enactment is in
pursuance of Congress’ regulation of interstate commerce.”36 Some federal criminal statutes
enacted pursuant to Congress’s commerce authority refer to the jurisdictional basis in just a few
words.37 For example, a federal threat statute imposes criminal penalties on “whoever transmits in
interstate or foreign commerce any communication containing any demand or request for a
ransom or reward for the release of any kidnapped person . . . .”38 Courts have generally
concluded that the threat statute’s jurisdictional requirement may be satisfied where “a
communication actually crosses state lines, however briefly.”39 Such an event could occur, for
example, when a threatening communication, such as a phone call, is made from one state to a
recipient located in another.40 Alternatively, the requirement may be satisfied when the recipient
is located in the same state as the person making the threat if, for example, the threatening
communication is conveyed by a phone call or instant message routed through equipment or
computers located in a different state.41
33 Morrison, 529 U.S. at 612 (quoting Lopez, 514 U.S. at 562).
34 Roof, 225 F. Supp. 3d at 454.
35 Morrison, 529 U.S. at 612.
36 Id. For example, in Lopez, the Supreme Court concluded that Congress exceeded its Commerce Clause authority in
enacting a law that made it a crime “for any individual knowingly to possess a firearm at a place that the individual
knows, or has reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551 (quoting 18 U.S.C.
§ 922(q)(1)(A)). According to the Court, one issue with the statute was its lack of “a requirement that the possession be
connected in any way to interstate commerce.” Id. Congress subsequently amended the provision to apply only to
firearms that had moved in or otherwise affected interstate of foreign commerce, and federal courts “have generally
upheld it on the basis of the added textual link to commerce.” CRS Report R45629, Federal Firearms Laws: Overview
and Selected Legal Issues for the 116th Congress, by Michael A. Foster, at 16 (2019). For instance, one federal court
explained that because the revised provision “contains an interstate-commerce requirement, i.e., the firearm in question
must have been shipped or transported in interstate commerce, the statute ensures through case-by-case inquiry that the
firearm in question affects interstate commerce.” United States v. Danks, 221 F.3d 1037, 1039 (8th Cir. 1999).
37 See, e.g., 18 U.S.C. § 39(a)(1) (“Whoever, in or affecting interstate or foreign commerce, knowingly sells a traffic
signal preemption transmitter to a nonqualifying user shall be fined under this title, or imprisoned not more than 1 year,
or both.”); id. § 1231 (“Whoever willfully transports in interstate or foreign commerce any person . . . .”); id. § 2421A
(“Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce
. . . .”).
38 18 U.S.C. § 875 (emphasis added).
39 United States v. Nissen, 432 F. Supp. 3d 1298, 1321 (D.N.M. 2020).
40 E.g., United States v. Li, 537 F. Supp. 2d 431, 435 (N.D.N.Y. 2008).
41 See United States v. Kammersell, 196 F.3d 1137, 1138–39 (10th Cir. 1999) (affirming § 875(c) conviction where
threat was sent via interstate message from Utah to a computer in Utah, through an AOL server in Virginia); Nissen,
432 F. Supp. 3d at 1321 (rejecting motion to dismiss on jurisdictional grounds an indictment charging § 875(c) in light
of evidence that a call made from cellphone in New Mexico to a recipient in New Mexico was routed to a switch in
Texas). At least one federal appellate court has examined whether use of the internet without proof that the message
crossed state lines could suffice for § 875(c) purposes given the inherent “cross-border nature” of the internet, but it
declined to resolve the issue, which it observed has divided other circuits in related contexts. United States v. Haas, 37
F.4th 1256, 1264–65 (7th Cir. 2022).
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As another example, 18 U.S.C. § 247(a)(1) makes it a crime to “intentionally deface[], damage[],
or destroy[] any religious real property42 . . . or attempt[] to do so” if that conduct is “in or affects
interstate or foreign commerce.”43 As an example of when this jurisdictional requirement is
satisfied in the context of § 247, a court concluded that § 247 encompassed the conduct of a
defendant who set several churches ablaze in different states.44 Although each church burning
occurred in a single state, the defendant’s conduct still affected interstate commerce because it
“entailed weeks of travel in a van (an instrumentality of commerce) along interstate highways (a
channel of commerce) and at least six separate interstate border crossings, all for the specific
purpose of spreading the evil of church burning through four different states.”45
Other federal criminal statutes also prohibit specified conduct when certain circumstances
implicating interstate or foreign commerce are present.46 For example, 18 U.S.C. § 116
criminalizes female genital mutilation47 if it occurs in one of several circumstances, including
when
•
•
•
the defendant or victim travels in interstate or foreign commerce in connection
with the offense;
the defendant transmits a communication related to the offense in interstate or
foreign commerce; or
a payment is made in interstate commerce in connection with the underlying
offense.48
Crimes Involving the U.S. Mail
Some federal criminal statutes criminalize conduct targeting or involving the U.S. mail. See, e.g., 18 U.S.C. § 1701
(criminalizing knowing and willful obstruction of the mail); id. § 1706 (authorizing criminal penalties for certain act
of damage to mail bags); id. § 2115 (prohibiting burglary of post offices). Federal criminal laws protecting the mail
are likely rooted in Congress’s power to “establish Post Offices and post Roads” under Article I, Section 8, clause
7 of the Constitution, in conjunction with its authority under the Necessary and Proper Clause. For example, in
U.S. v. Dittrich, the U.S. Court of Appeals for the Eighth Circuit relied on these provisions to reject a constitutional
challenge to 18 U.S.C. § 2114—a statute criminalizing robbery of the mail, among other things. 100 F.3d 84, 85
(8th Cir. 1996). The Dittrich court held that “a law making it a crime to steal property from a Post Office is well
within even the narrowest construction of the Necessary and Proper Clause.” Id. at 87.
42 In general, real property includes “[l]and and anything growing on, attached to, or erected on it, excluding anything
that may be severed without injury to the land.” Property, BLACK’S LAW DICTIONARY (11th ed. 2019).
43 18 U.S.C. § 247(a)(1), (b).
44 See, e.g., United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Congress’[s] power to regulate activities
that ‘affect’ commerce enables it to reach wholly intrastate conduct—that is, conduct that utilizes neither the channels
nor the instrumentalities of interstate commerce—but only when it has ‘a substantial relation to’ (meaning it
‘substantially affect[s]’) interstate commerce.” (brackets in original) (quoting United States v. Lopez, 514 U.S. 549,
558–59 (1995)).
45 Id. at 1228.; see also United States v. Doggart, 947 F.3d 879, 887 (6th Cir. 2020) (observing that if he had raised
interstate commerce challenge, defendant’s conduct would have implicated interstate commerce for § 247 purposes
“[b]ecause [defendant] planned an attack in New York from his home in Tennessee and planned to use
instrumentalities of interstate commerce to make the attack”).
46 E.g., 18 U.S.C. § 249(a)(2)(B).
47 For a discussion of the substantive scope of this statute, see generally CRS Legal Sidebar LSB10313, Congressional
Authority to Enact Criminal Law: Female Genital Mutilation (FGM), by Michael A. Foster (2019).
48 18 U.S.C. § 116(d).
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Special Maritime and Territorial Jurisdiction
Another common jurisdictional basis for federal criminal statutes is conduct occurring in the
special maritime and territorial jurisdiction of the United States (SMTJ).49 As one federal
appellate court has explained, SMTJ generally includes “areas where American citizens and
property need protection, yet no other government effectively safeguards those interests.”50 One
quintessential example is the “high seas,”51 which are included in the definition of SMTJ in 18
U.S.C. § 7, along with certain international waterways, federal lands, particular islands containing
deposits of bird guano,52 domestic aircrafts in flight,53 and in some instances even outer space.54
The constitutional source of authority for different areas included in SMTJ varies by type.55 For
example, 18 U.S.C. § 7(3) defines SMTJ to include “[a]ny lands reserved or acquired for the use
of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful
building.”56 The constitutional grounding for much of this provision is Article I, Section 8, clause
17,57 sometimes referred to as the Enclave Clause,58 which grants Congress legislative power
over, among other things, “all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other
needful Buildings.”59 The Enclave Clause “has been broadly construed” and extends beyond
properties “itemized” in the provision.60
49 See infra “Select Examples of SMTJ as Jurisdictional Basis.”
50 United States v. Corey, 232 F.3d 1166, 1171 (9th Cir. 2000). This is not to say that another government may not also
have laid claim to the territory or area in question. See United States v. Corey, 232 F.3d 1166, 1175 (9th Cir. 2000)
(“[T]he United States at times did assert criminal jurisdiction over territories claimed by another sovereign.”).
51 In general terms, the high seas are sometimes described as “[t]he ocean waters beyond the jurisdiction of any
country.” Sea, BLACK’S LAW DICTIONARY (12th ed. 2024). There is little case law examining the precise meaning of
high seas as used in the statutory SMTJ definition. See United States v. Zenon-Encarnacion, 185 F. Supp. 2d 127, 134
(D.P.R. 2001) (“Few cases have interpreted 18 U.S.C. § 7(1).”).
52 For a historical perspective on federal criminal jurisdiction over islands containing bird guano, see generally
Christina D. Burnett, The Edges of Empire and the Limits of Sovereignty: American Guano Islands, 57 AM. Q. 779
(2005); see also United States v. Corey, 232 F.3d 1166, 1174–75 (9th Cir. 2000) (discussing caselaw on whether “a
murder on the guano island of Navassa was . . . under U.S. jurisdiction”).
53 18 U.S.C. § 7.
54 See generally CRS Legal Sidebar LSB10869, If You Do the Space Crime, You May Do the Space Time, coordinated
by Peter G. Berris (2022); CRS Report WPD00038, Space Crime: Federal Jurisdiction in the “Final Frontier,” by
Peter G. Berris and Michael A. Foster (2022).
55 See generally BARBARA E. BERGMAN, THERESA M. DUNCAN, AND MARLO CADEDDU, 1 WHARTON’S CRIMINAL
PROCEDURE § 2:8 (14th ed. 2023).
56 18 U.S.C. § 7(3).
57 United States v. Gilbert, 94 F. Supp. 2d 157, 159 (D. Mass. 2000) (citing Bowen v. Johnston, 306 U.S. 19, 22,
(1939)).
58 Courts sometimes refer to the provision as the Federal Enclave Clause—for example, United States v. Gabrion, 517
F.3d 839, 854 (2008); or simply the Enclave Clause—for example, United States v. Alaska, 521 U.S. 1, 41 (1997).
59 U.S. CONST. art. I, § 8, cl. 17. “Absent consent by the state, the United States does not take jurisdiction over the
property. Instead it is simply an ordinary proprietor of the property.” Gilbert, 94 F. Supp. 2d at 160; accord BERGMAN,
ET AL., supra note 55, at § 2:8 (similar).
60 Gabrion, 517 F.3d at 847 (quoting Kleppe v. New Mexico, 426 U.S. 529, 542 n.11 (1976).
The Enclave Clause also has language relevant to regulating crime in the District of Columbia, giving Congress
“[p]ower . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles
square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government
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Another source of constitutional authority for portions of the SMTJ definition is Congress’s
power to “make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States” under Article IV, Section 3, clause 2,61 also known as the Property
Clause.62 As the U.S. Court of Appeals for the Sixth Circuit63 has explained, “[t]he Supreme
Court has given this Clause an ‘expansive’ reading and stated, unequivocally, that the federal
government ‘doubtless has a power over its own property analogous to the police power of the
several States.’”64
Select Examples of SMTJ as Jurisdictional Basis
Numerous federal criminal statutes expressly apply to conduct when it occurs in SMTJ. For
example, 18 U.S.C. § 81, among other things, imposes criminal penalties on whoever “within the
special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire
to or burns any building, structure or vessel, any machinery or building materials or supplies,
military or naval stores, munitions of war, or any structural aids or appliances for navigation or
shipping.”65 Other statutes that employ similar language referencing SMTJ include laws
governing assault,66 theft,67 sexual abuse,68 robbery,69 and kidnapping.70
Federal Property as Jurisdictional Basis
A number of federal criminal laws regulate particular activities when they occur on, or target,
federal buildings or land, such as military installations.71 As another example, 40 U.S.C. § 5104
authorizes various criminal penalties for a range of conduct and activities (such as acts of
physical violence and vandalism) on Capitol grounds or in Capitol buildings.72 Numerous other
federal criminal laws apply to particular national parks or federally protected lands.73 Congress
of the United States.” U.S. CONST. art. I, § 8, cl. 17. As one federal appellate court has explained, pursuant to the
Enclave Clause, “[w]hen Congress legislates with respect to the District of Columbia . . . it acts as a state government
with all the powers of a state government.” United States v. Jenkins, 734 F.2d 1322, 1325 (9th Cir. 1983).
61 U.S. CONST. art. IV, § 3, cl. 2.
62 Gabrion, 517 F.3d at 846.
63 This report references decisions by federal appellate courts of various regional circuits. For purposes of brevity,
references to a particular circuit in the body of this report (e.g., the Sixth Circuit) refer to the U.S. Court of Appeals for
that particular circuit (e.g., the U.S. Court of Appeals for the Sixth Circuit).
64 Gabrion, 517 F.3d at 846 (quoting Kleppe, 426 U.S. at 539–40).
65 18 U.S.C. § 81.
66
Id. § 113.
67 Id. § 661.
68 Id. § 2242.
69 Id. § 2111.
70 Id. § 1201(a)(2).
71 E.g., id. § 1382 (“Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast
Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful
regulation . . . Shall be fined under this title or imprisoned not more than six months, or both.”).
72 40 U.S.C. § 5104. For more information on § 5104, see generally CRS Report R46829, Domestic Terrorism:
Overview of Federal Criminal Law and Constitutional Issues, by Peter G. Berris, Michael A. Foster, and Jonathan M.
Gaffney (2021); CRS Legal Sidebar LSB10564, Federal Criminal Law: January 6, 2021, Unrest at the Capitol, by
Michael A. Foster and Peter G. Berris (2021).
73 See, e.g., 16 U.S.C. § 146 (criminalizing certain intrusions onto, or appropriation from, public lands at Wind Cave
National Park); id. § 256b (restricting hunting and fishing in Olympic National Park and authorizing criminal penalties
for violations); id. § 371 (authorizing fines and imprisonment for lying about eligibility for bathing in the Hot Springs
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may be able to rely on multiple sources of constitutional authority to enact or amend criminal
laws governing conduct on, or targeting, federal buildings and land, such as the Property and
Enclave Clauses, discussed above.74
Not all federal criminal statutes protecting federal property are focused on land and buildings.75
One example is 18 U.S.C. § 641, which makes it a crime to steal “any record, voucher, money, or
thing of value of the United States or of any department or agency thereof.”76 In United States v.
Von Stephens, the Ninth Circuit rejected an argument that § 641 exceeded Congress’s powers
under the Constitution as applied to the defendant.77 Von Stephens involved the theft of
government funds that were part of an aid program.78 The court concluded that the underlying aid
program was a valid exercise of congressional authority to “provide for the general welfare of the
United States” under Article 1, Section 8, clause 1 of the Constitution.79 According to the court,
the application of § 641 to theft from the aid program was necessary and proper for carrying out
that underlying power.80 The court indicated that in “protecting the government from theft,” the
statute facilitates the aid program by “helping to assure that federal funds will reach intended [aid
program] recipients.”81 Von Stephens illustrates how congressional authority to protect federal
property through criminal legislation may be premised on a combination of the underlying source
of constitutional authority relevant to the particular type of property and the Necessary and Proper
Clause.82
National Park); id. § 460n-5 (setting criminal penalties for violations of rules and regulations governing Lake Mead
National Recreation Area).
74 See supra notes 57–64 and accompanying text.
75 Some federal statutes do not specify the type of property to which they apply but in practice are often used to
prosecute conduct targeting federal buildings. One example is 18 U.S.C. § 1361, which authorizes various fines and
prison terms for willful injury of federal property and has been used in prosecutions for damage to government
buildings. See, e.g., United States v. N.B., No. 22-2492, 2023 WL 4881451, at *1 (8th Cir. Aug. 1, 2023) (per curiam)
(discussing § 1361 prosecution for damaging buildings managed by the Bureau of Land Management); United States v.
Lozano, No. 21-51076, 2022 WL 2713233, at *1 (5th Cir. July 13, 2022) (describing guilty plea under § 1361 by
defendant for “spray painting graffiti onto a federal building in El Paso, Texas”). That statute can also be used to
prosecute conduct targeting other types of government property. See U.S. DEP’T OF JUSTICE, CRIMINAL RESOURCE
MANUAL § 1663, https://www.justice.gov/archives/jm/criminal-resource-manual-1663-protection-governmentproperty-protection-public-records-and (explaining that the destruction of public records may violate § 1361); see also
United States v. Krause, 914 F.3d 1122, 1124–26 (8th Cir. 2019) (analyzing § 1361 as applied to incident that resulted
in destruction of an antenna array owned by the Federal Aviation Administration).
76 18 U.S.C. § 641.
77 774 F.2d 1411, 1413 (9th Cir. 1985) (per curiam).
78 Id. at 1412.
79 Id. at 1413. The authority to provide for the general welfare, described by the Ninth Circuit, has generally been
interpreted not as an independent power but rather as qualifying the power to tax and spend. See CRS Report R44729,
Constitutional Authority Statements and the Powers of Congress: An Overview, by Whitney K. Novak, at 14 (2023)
(“Importantly, the phrase general Welfare does not exist in isolation in the clause but is instead tied to the preceding
language in the clause regarding the raising of revenue.”); see also United States v. Butler, 297 U.S. 1, 64 (1936) (“The
view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been
authoritatively accepted.”).
80 Von Stephens, 774 F.2d at 1413.
81 Id.
82 Another illustration may be found in Sabri v. United States, a Supreme Court case involving a federal provision
“proscribing bribery of state, local, and tribal officials [or] entities that receive at least $10,000 in federal funds.” 541
U.S. 600, 602 (2004). The Court explained that “Congress has authority under the Spending Clause to appropriate
federal moneys to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding authority under the Necessary
and Proper Clause, Art. I, § 8, cl. 18, to see to it that taxpayer dollars appropriated under that power are in fact spent for
the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt
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Federal Personnel as Jurisdictional Basis
The protection of federal personnel serves as a jurisdictional basis underpinning a number of
federal criminal statutes.83 The constitutional grounding of such laws is generally the Necessary
and Proper Clause in conjunction with an underlying function belonging to the federal
government under the Constitution.84 For example, in United States v. Peltier, the Eighth Circuit
rejected a constitutional challenge to 18 U.S.C. § 1114, which prohibits the unlawful killing of
certain federal officers and employees.85 Addressing the Necessary and Proper Clause, the court
explained that “killing a federal officer engaged in his or her official duties affects the federal
government’s ability to execute its laws” and held that a “statute like § 1114 is ‘necessary in order
to insure uniformly vigorous protection of federal personnel.’”86 More broadly, the Supreme
Court observed as early as 1892 that “no one doubts the power of [C]ongress to provide for the
punishment of all crimes and offenses against the United States, whether committed within one of
the states of the Union or within territory over which [C]ongress has plenary and exclusive
jurisdiction.”87 Crimes targeting federal personnel in the course of their duties almost certainly
qualify as crimes against the United States.88
Select Examples of Federal Personnel as Jurisdictional Basis
A variety of federal criminal statutes protect federal personnel, including the following examples:
•
•
•
18 U.S.C. § 111 authorizes various prison terms for (among other things) forcibly
assaulting, resisting, opposing, impeding, intimidating, or interfering with certain
federal officers or employees.89
18 U.S.C. § 351 prohibits assassinating or kidnapping Members of Congress,
certain Cabinet officials, and Supreme Court Justices, among other things.90
18 U.S.C. § 1751 criminalizes assassinating or kidnapping the President or Vice
President of the United States.91
public officers are derelict about demanding value for dollars.” Id. at 605. Thus, the Court held that the federal bribery
provision at issue was a “valid exercise of congressional authority under Article I of the Constitution.” Id. at 602.
83 See infra “Select Examples of Federal Personnel as Jurisdictional Basis.”
84
See United States v. Peltier, 446 F.3d 911, 914 (8th Cir. 2006).
85 Id.
86 Id. (quoting United States v. Feola, 420 U.S. 671, 684 (1975)); accord Hinkson v. United States, No. 1:04-CR-127RCT, 2012 WL 3776023, at *14 (D. Idaho Aug. 28, 2012) (similar).
87 Logan v. United States, 144 U.S. 263, 283 (1892), abrogated on other grounds, Witherspoon v. State of Ill., 391 U.S.
510 (1968).
88 See Peltier, 446 F.3d at 914 (“Killing a federal officer engaged in his or her official duties affects the federal
government’s ability to execute its laws and is thus an offense that the United States can punish.”); Hinkson, No. 1:04CR-127-RCT, 2012 WL 3776023, at *14 (“The murder of an officer of the United States engaged in the performance
of official duties is undoubtedly a crime against the United States wherever committed.”).
89 18 U.S.C. § 111(a)(1). For more information on this statute, see generally Berris, Foster, and Gaffney, supra note 72
at 23–24. The same government officers and officials protected by Section 111 also fall within the scope of Section
1114 of Title 18 of the U.S. Code, which criminalizes the attempted or actual killing of such individuals. 18 U.S.C. §
1114.
90 18 U.S.C. § 351.
91 Id. § 1751.
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Reconstruction-Era Amendments
The Thirteenth, Fourteenth, and Fifteenth Amendments were ratified in the Reconstruction Era
following the Civil War. Each amendment announces certain rights (e.g., that the government
may not deprive individuals of the equal protection of the law) and authorizes Congress to
enforce these rights “by appropriate legislation.”92 Congress appears to have used these
enforcement authorities in the criminal law context (typically in conjunction with other powers).93
The Thirteenth Amendment
The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude . . . shall
exist within the United States, or any place subject to their jurisdiction,” and grants Congress the
power to enforce this guarantee “by appropriate legislation.”94 The Thirteenth Amendment does
not contain language limiting its prohibition of slavery or involuntary servitude to a particular
race.95 The Supreme Court has interpreted the Thirteenth Amendment as a “denunciation” of the
condition of slavery in general—“not a declaration in favor of a particular people”—and therefore
it “reaches every race and every individual.”96
The Supreme Court has also held that the Thirteenth Amendment permits Congress to pass laws
necessary to abolish not only the institution of slavery itself, but also “all badges and incidents of
slavery in the United State[s].”97 According to the Court, Congress has the authority to rationally
“determine what are the badges and the incidents of slavery” and to legislate accordingly.98 As a
result, courts generally defer to Congress’s determinations regarding the scope of badges and
incidents of slavery, so long as legislation “bears a rational relationship to the subject matter of
the Amendment.”99 Courts have concluded that badges and incidents of slavery include “most
forms of racial discrimination.”100
The Thirteenth Amendment is “unique among Reconstruction Era amendments” in that its
“Enforcement Clause lacks a state-action101 provision, instead empowering Congress to directly
regulate private conduct.”102 The types of criminal provisions premised on Congress’s Thirteenth
92 See generally CRS Report R47060, Overview of Federal Hate Crime Laws, by Peter G. Berris, at 46–50 (2022).
93 For additional information, see generally Hickey, supra note 17.
94 U.S. CONST. amend. XIII, §§ 1, 2.
95 Id.; see also WILLIAM J. RICH, MODERN CONSTITUTIONAL LAW, § 18:1 (3rd ed. 2023) (“Although originally enacted
to abolish slavery of African Americans, the Amendment uses more inclusive language.”).
96 See Hodges v. United States, 203 U.S. 1, 16–17 (1906), overruled in part by Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968); accord United States v. Hatch, 722 F.3d 1193, 1208 (10th Cir. 2013) (quoting this language in support of
proposition that Thirteenth Amendment protects all races).
97 Civil Rights Cases, 109 U.S. 3, 20 (1883).
98 Jones, 392 U.S. at 440.
99 RICH, supra note 95, at § 18:10; accord Jones, 392 U.S. at 440 (“Congress has the power under the Thirteenth
Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that
determination into effective legislation.”); United States v. Cannon, 750 F.3d 492, 500 (5th Cir. 2014) (“The Supreme
Court explained that courts should only invalidate legislation enacted under the Thirteenth Amendment if they
conclude that Congress made an irrational determination in deciding what constitutes ‘badges’ and ‘incidents’ of
slavery in passing legislation to address them.”).
100 Hatch, 722 F.3d at 1200, 1208. See also United States v. Nelson, 277 F.3d 164, 178 (2d Cir. 2002) (“[T]he
Thirteenth Amendment . . . extend[s] to protect the Jewish ‘race.’”).
101 For a discussion of state action, see infra notes 120–129.
102 United States v. Diggins, 36 F.4th 302, 306–07 (1st Cir.), cert. denied, 143 S. Ct. 383 (2022).
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Amendment authority illustrate the importance of this distinction, as discussed in the examples
below.103
Select Examples of the Thirteenth Amendment as a Jurisdictional Basis in
Federal Criminal Statutes
A number of hate crime statutes appear to be premised at least in part on Congress’s authority to
enact legislation under the Thirteenth Amendment.104 For example, in United States v. Hatch, the
Tenth Circuit rejected a challenge to Congress’s authority to enact 18 U.S.C. § 249(a)(1),105 which
among other things prohibits violence motivated by racial bias.106 The Tenth Circuit focused on
three “connected considerations” in concluding that § 249(a)(1) fit within Congress’s Thirteenth
Amendment authority to eliminate badges and incidents of slavery.107 First, the court emphasized
that § 249(a)(1) is “confined” to “aspects of race as understood in the 1860s when the Thirteenth
Amendment was adopted,” namely race, color, religion, or national origin.108 The Tenth Circuit
drew support for that conclusion in part from congressional findings buttressing the statute, such
as one finding that “members of certain religious and national origin groups were [historically]
. . . perceived to be distinct ‘races.’”109 Further, the court inferred additional support for this
conclusion from the fact that “Congress placed non-racial classifications—gender, sexual
orientation, gender identity, and disability,” which fall outside the scope of the Thirteenth
Amendment, in a separate paragraph of § 249.110 Second, the court noted that Congress “did not
seek to punish all violence against those who embody a trait that equates to ‘race,’” but “only
those who act ‘because of the [victim’s] actual or perceived race.’”111 According to the court, this
limitation “further confines the statute’s reach.”112 Third, the court, surveying the historical
relationship between violence and slavery, held that “Congress could rationally conclude that
physically attacking a person of a particular race because of animus toward or a desire to assert
superiority over that race is a badge or incident of slavery.”113 Other courts have employed similar
reasoning to reach the same conclusion with respect to § 249(a)(1)114 and other federal hate crime
103 See infra “Select Examples of the Thirteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes.”
104 See, e.g., Church Arson Prevention Act of 1996, Pub. L. No. 104–155, § 2, 110 Stat 1392 (codified at 18 U.S.C. §
247) (“Congress has authority, pursuant to section 2 of the 13th amendment to the Constitution, to make actions of
private citizens motivated by race, color, or ethnicity that interfere with the ability of citizens to hold or use religious
property without fear of attack, violations of Federal criminal law.”); Cannon, 750 F.3d at 498 (“[Section] 249(a)(1)
rests solely on Congress’s authority under § 2 of the Thirteenth Amendment.”); Hatch, 722 F.3d at 1196 (“The portion
of the Hate Crimes Act under which Hatch was charged and convicted—18 U.S.C. § 249(a)(1)—is a lawful exercise of
the powers granted to Congress by Section 2 of the Thirteenth Amendment.”).
105 722 F.3d at 1206.
106 18 U.S.C. § 249.
107 Hatch, 722 F.3d at 1202, 1205.
108 Id. at 1205.
109 Id. (quoting 18 U.S.C. § 249 note (reprinting Pub. L. No. 111–84, § 4702(8))).
110 Id. (noting that Congress’s placed nonracial classifications in a paragraph that “explicitly linked those classifications
to the Commerce Clause or Congress’s power over federal territories”).
111 Id. at 1206 (quoting 18 U.S.C. § 249(a)(1)).
112 Id.
113 Id.
114 United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018) (citing Hatch with approval and concluding that with §
249(a)(1), “Congress rationally determined that racially motivated violence constitutes a badge and incident of
slavery”); United States v. Cannon, 750 F.3d 492, 502 (5th Cir. 2014) (reviewing congressional findings supporting §
249, observing that “racially motivated violence was essential to the enslavement of African–Americans and was
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statutes.115 For instance, the Second Circuit held that § 245(b)(2)(B) “falls comfortably” within
Congress’s Thirteenth Amendment power to determine the badges and incidents of slavery since
it prohibits racially motivated violence, which has a “long and intimate historical association with
slavery and its cognate institutions.”116
The Fourteenth Amendment
In relevant part, the Fourteenth Amendment provides that “[n]o State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”117 Section Five of the Fourteenth
Amendment grants Congress the power to “enforce, by appropriate legislation, the provisions of
this article.”118
There are two important limits to Congress’s Section Five power.119 First, the Supreme Court has
indicated that “the Fourteenth Amendment, by its very terms, prohibits only state action.”120
Accordingly, Congress’s power to enact legislation under Section 5 is limited to legislation
addressed at remedying state action.121 State action may come in a number of forms122 Perhaps
most relevant to the criminal law context, the state action requirement may be satisfied where an
individual acts under color of law.123 Generally, an individual’s actions are under color of law if
widely employed after the Civil War in an attempt to return African–Americans to a position of de facto enslavement,”
and holding that in “light of these facts, we cannot say that Congress was irrational in determining that racially
motivated violence is a badge or incident of slavery”); United States v. Earnest, 536 F. Supp. 3d 688, 717 (S.D. Cal.
2021) (citing Hatch with approval, reviewing congressional findings, and joining “the other courts in concluding that
Congress rationally determined racially motivated violence is a badge and incident of slavery, and translated that
determination into the HCPA pursuant to its powers under Section 2 of the Thirteenth Amendment”).
115
See, e.g., United States v. Allen, 341 F.3d 870, 884 (9th Cir. 2003) (collecting cases holding that “the enactment of §
245(b)(2)(B) was a constitutional exercise of Congress’s authority under the Thirteenth Amendment” and agreeing);
United States v. Nelson, 277 F.3d 164, 178, n.14 (2d Cir. 2002) (“Congress’[s] power to enforce the Thirteenth
Amendment by enacting § 241 . . . is clear and undisputed.”).
116 Nelson, 277 F.3d at 189–90.
117 U.S. CONST. amend. XIV, § 1.
118 Id. § 5.
119 For more information on Section Five of the Fourteenth Amendment see Hickey, supra note 17 at 17–22.
120 United States v. Morrison, 529 U.S. 598, 621 (2000). Compare Civil Rights Cases, 109 U.S. 3, 11 (1883) (rejecting
the power of Congress to regulate private conduct under the Fourteenth Amendment and concluding that the
Amendment governs only State action), with United States v. Guest, 383 U.S. 745, 782 (1966) (Brennan, J.,
concurring) (“A majority of the members of the Court expresses the view today that [Section 5 of the Fourteenth
Amendment] empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth
Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the
conspiracy.”) (footnote omitted). For an examination of the development of the Court’s Fourteenth Amendment
precedent, see generally Morrison, 529 U.S. at 620–27.
121 Morrison, 529 U.S. at 621–22; see generally Cong. Rsch. Serv., Amdt14.S5.2 Who Congress May Regulate,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S5-2/ALDE_00000851/ (last
visited Sept. 9, 2024).
122 For example, official state conduct, such as the enactment of legislation, qualifies. See, e.g., Brown v. Bd. of Educ.,
347 U.S. 483, 493, 495 (1954), supplemented by 349 U.S. 294 (1955) (holding that state-mandated school segregation
violated the Fourteenth Amendment); see also RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL
LAW-SUBSTANCE & PROCEDURE § 16.1(a) (July 2024 Update) (“When a legislature, executive officer, or a court takes
some official action against an individual, that action is subjected to review under the Constitution, for the official act
of any governmental agency is direct governmental action and therefore subject to the restraints of the Constitution.”).
123 See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982) (explaining that in the context of civil lawsuits brought
against state officials pursuant to a federal statute, “the statutory requirement of action ‘under color of state law’ and
the ‘state action’ requirement of the Fourteenth Amendment are identical.”).
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their conduct involves “[m]isuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.”124 Typically, individuals
acting under color of law will be government employees or officials.125 There are also some
instances in which the conduct of private individuals or entities may be attributed to the state
itself,126 although determining whether that is the case is a “necessarily fact-bound inquiry.”127
The Supreme Court has said128 that there must be a “‘close nexus between the State and the
challenged action’ [so] that seemingly private behavior ‘may be fairly treated as that of the State
itself.’”129
Second, there is a significant distinction between Congress legislating to remedy actual
constitutional violations and Congress legislating to regulate conduct that may not be forbidden
by the substantive scope of the Fourteenth Amendment. Section Five enforcement authority does
not grant Congress the “power to decree the substance of the Fourteenth Amendment.”130 Rather,
Section Five authorizes it to enact laws to “remedy or prevent unconstitutional actions.”131 In
other words, Congress may use Section Five to enforce the rights guaranteed by the Fourteenth
Amendment; however, it may not alter the substantive scope of the rights themselves.132 The
Supreme Court has acknowledged that the line between laws that remedy unconstitutional actions
and laws that make a substantive change to the Fourteenth Amendment is “not easy to discern,”133
but ordinarily legislation is remedial under Section Five of the Fourteenth Amendment when
there is “congruence and proportionality between the injury to be prevented or remedied and the
means adopted to that end.”134 Relevant factors in determining whether Fourteenth Amendment
legislation is congruent and proportional include (1) the scope of the constitutional right at issue
in the legislation; (2) whether Congress has identified a historical pattern of the states violating
124 Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
125 See infra note 149 and accompanying text. Federal courts have held that some criminal laws that encompass conduct
committed under color of law can apply to federal officials and employees as well as state ones. See Screws, 325 U.S.
at 108 (explaining in context of federal criminal law prohibiting deprivation of civil rights under color of law that one
“who acts under ‘color’ of law may be a federal officer or a state officer” and “may act under ‘color’ of federal law or
of state law”); United States v. Otherson, 637 F.2d 1276, 1278 (9th Cir. 1980) (similar). As a general matter, Congress
has much greater leeway to regulate the conduct of federal officials and employees than it does with state officials and
employees. See CRS Report R46530, Police Reform and the 116th Congress: Selected Legal Issues, by April J.
Anderson, Joanna R. Lampe, and Whitney K. Novak, at 1 (2020) (describing Congress’s “plenary authority to regulate
federal law enforcement officers and agencies”).
126 Burton v. Wilmington Parking Auth., 365 U.S. 715, 716 (1961) (holding that state action occurred within the
context of the Fourteenth Amendment when a private coffee shop refused to serve an African American customer, and
that coffee shop was situated in a government-run parking garage, and a lessee of a government authority).
127 Lugar, 457 U.S. at 939.
128 The Court has used several different tests to determine whether a private entity qualifies as a state actor. See
Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 809 (2019) (collecting caselaw and describing tests).
129 Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro.
Edison Co., 419 U.S. 345, 351 (1974)); see also Hickey, supra note 17 at 17–18 (surveying caselaw on determining
whether there is sufficiently close nexus between state and private individual to amount to state action for Fourteenth
Amendment purposes).
130 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
131 Id. at 519.
132 Id. (observing Congress has been given “the power ‘to enforce,’ not the power to determine what constitutes a
constitutional violation”).
133 Id.
134 Id. at 520; RICH, supra note 95, at § 35:84 (“In City of Boerne v. Flores, the Supreme Court distinguished between
the remedial and substantive scope of the Fourteenth Amendment, ruling that Congress had power to determine the
former, but not the latter.” (footnote omitted)).
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the particular right; and (3) whether the right at issue and the purported violations are “so out of
proportion to a supposed remedial or preventive object that it cannot be understood as responsive
to, or designed to prevent, unconstitutional behavior.”135
The congruence and proportionality requirement does not apply when legislation enforces actual
violations of the Fourteenth Amendment—for example, where those violations must be proven
and vindicated in court.136 One example of this type of enforcement legislation is 18 U.S.C.
§ 242—criminalizing deprivation of constitutional rights under color of law137—discussed in
more detail below.138
Select Examples of the Fourteenth Amendment as a Jurisdictional Basis in
Federal Criminal Statutes
As with the Thirteenth Amendment, hate crime laws are one area where Congress has appeared to
invoke its authority under Section Five of the Fourteenth Amendment (sometimes in conjunction
with other sources of authority).139 Case law examining the limits of Congress’s Fourteenth
Amendment power in the context of these statutes is scarce, however.140 Federal courts have
135 Hickey, supra note 17 at 19 (collecting cases and quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86 (2000)).
136 Hickey, supra note 17 at 21; see also United States v. Georgia, 546 U.S. 151, 158–59 (2006) (discussing
congressional authority to legislate to enforce actual violations of the Fourteenth Amendment).
137 Section 242 refers to “rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States.” 18 U.S.C. § 242. The Supreme Court has construed that language as limited to the “deprivation of a
constitutional right” where that right “has been made specific either by the express terms of the Constitution or laws of
the United States or by decisions interpreting them.” United States v. Lanier, 520 U.S. 259, 267, 271–72 (1997)
(quoting Screws v. United States, 325 U.S. 91, 104 (1945) (plurality opinion)). In practice, according to one observer,
“[t]he vast majority of cases under Section 242 have involved deprivation of the Fourteenth Amendment right to due
process of law.” ZACHARY J. WOLFE, HATE CRIMES LAW, § 6:18 (2024).
138 See infra “Select Examples of the Fourteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes.”
139 See, e.g., Screws, 325 U.S. at 98 (explaining that predecessor to § 242 “was enacted to enforce the Fourteenth
Amendment”); CRS Legal Sidebar LSB10495, Federal Police Oversight: Criminal Civil Rights Violations Under 18
U.S.C. § 242, by Joanna R. Lampe, at 1 (2020) (discussing origins of § 242); S. REP. NO. 90-721, at 6–8 (1967)
(discussing sources of constitutional authority for § 245); see also United States v. Price, 383 U.S. 787, 805 (1966)
(“We cannot doubt that the purpose and effect of § 241 was to reach assaults upon rights under the entire Constitution,
including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.”).
140 But see, e.g., United States v. Glover, 672 F. Supp. 3d 1072, 1081 (D. Or. 2023) (“The Court concludes that [18
U.S.C.] § 242 was a constitutional exercise of Congress’s § 5 enforcement power.”); United States v. Cooney, 217 F.
Supp. 417, 419 (D. Colo. 1963) (similar).
As of July 22, 2024, targeted searches yielded little relevant material on this issue. For example, with respect to 18
U.S.C. § 245 these searches entailed searching within results on Westlaw of federal cases citing to § 245 for the
following terms and connector searches: TI(United States) AND (245 /p fourteenth /p congress); TI(United States)
AND (245 /p fourteenth /p enact!); TI(United States) AND (245 /p fourteenth /p legislat!). Equivalent searches were
conducted for 247, 249 and 42 U.S.C. § 3631. For 18 U.S.C. §§ 241 and 242—where there is a larger body of caselaw
in general—equivalent searches were conducted of reported federal cases only.
When discussing the substantive scope of § 241, which criminalizes conspiracies against civil rights, the Supreme
Court in United States v. Price held that the provision protected against violations of Fourteenth Amendment rights,
although there was no state action issue in that case, which involved the indictments of several municipal police
officers in connection with official actions. 383 U.S. at 790, 799–800, 804; see also United States v. Guest, 383 U.S.
745, 755–56 (1966) (cautioning that the Fourteenth Amendment reaches only state action, but determining that there
were sufficient state action allegations in § 241 indictment at issue).
Before the Supreme Court’s opinion in Morrison, which expressly restricted the Fourteenth Amendment to state action,
supra note 120 and accompanying text, the Eighth Circuit had concluded in United States v. Bledsoe that hate crime
statutes reaching private action could be premised at least in part on the Fourteenth Amendment.728 F.2d 1094, 1097
(8th Cir. 1984) (examining the Thirteenth and Fourteenth Amendments as sources of authority for § 245). Post(continued...)
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sometimes declined to address Fourteenth Amendment challenges to hate crime statutes and have
instead resolved them under other constitutional provisions such as the Thirteenth Amendment.141
The government has also sometimes declined to rely on the Fourteenth Amendment in defending
federal hate crime statutes against constitutional challenges, seemingly due to the difficulty of
satisfying the state action requirement with respect to conduct undertaken by private
individuals.142
One exception is 18 U.S.C. § 242,143 which some federal courts have described as grounded in
Congress’s Section Five power.144 The provision, which can be traced back to the Reconstruction
Era,145 criminalizes the willful deprivation of federally protected rights under color of law.146 In
general terms, an action is taken “under color of law” when it involves the misuse of power by an
individual “clothed” with legal authority,147 a requirement that may often overlap with the
concept of state action.148 In practice, those acting under color of law for § 242 purposes are
Morrison, in an unreported order, one federal district court interpreted Bledsoe and noted that the Eighth Circuit had
also separately grounded its holding in that case on the Thirteenth Amendment, which can reach private action. United
States v. Maybee, No. 11-30006, 2011 WL 2784446, at *4 (W.D. Ark. July 15, 2011), aff’d, 687 F.3d 1026 (8th Cir.
2012).
There are also a number of federal cases declining to extend City of Boerne’s congruence and proportionality
requirement to the Thirteenth Amendment in the context of federal hate crime statutes. See, e.g., United States v.
Hougen, 76 F.4th 805, 815 (9th Cir. 2023), cert. denied, 144 S. Ct. 1121 (2024), and cert. denied, 144 S. Ct. 1121
(2024) (collecting cases); United States v. Diggins, 36 F.4th 302 (1st Cir.), cert. denied, 143 S. Ct. 383 (2022).
141 See, e.g., United States v. Sandstrom, 594 F.3d 634, 660 (8th Cir. 2010) (“Because we hold that § 245 is a valid
exercise of Congress’s power under the Thirteenth Amendment, we need not address the remaining
constitutional challenges to § 245.”); see also United States v. Beebe, 807 F. Supp. 2d 1045, 1059 (D.N.M. 2011)
(resolving constitutional challenge to 18 U.S.C. § 249(a)(1) on Thirteenth Amendment grounds and therefore not
reaching defendant’s Fourteenth Amendment challenge to the provision), aff'd sub nom. United States v. Hatch, 722
F.3d 1193 (10th Cir. 2013); United States v. Furrow, 125 F. Supp. 2d 1178, 1180 (C.D. Cal. 2000) (declining to discuss
Fourteenth Amendment challenge to § 245 and instead resolving challenge with respect to commerce power).
To illustrate, in United States v. Lane, the Tenth Circuit examined the jurisdictional basis for § 245(b)(2)(C), which
criminalizes violently interfering with a person because of a protected characteristic such as race and because of that
person’s enjoyment of certain employment or labor-related rights. 883 F.2d 1484, 1487 (10th Cir. 1989). The
defendants argued that Congress enacted the provision solely under its Fourteenth Amendment authority, but the
government instead defended the provision as based on the Commerce Clause. Id. The Court agreed with the
government and therefore did not decide whether § 245(b)(2)(C) was also rooted in the Fourteenth Amendment, an
issue it found “less clear” based on legislative history. Id. at 1492.
142 See, e.g., United States v. Nelson, 277 F.3d 164, 174 (2d Cir. 2002) (acknowledging that the government declined to
pursue argument under the Fourteenth Amendment and speculating on its reasoning).
143 Section 242 has been used by prosecutors to charge individuals with bias-motivated crimes, although its reach is not
limited to that context. See Berris, supra note 92, at 18.
144 See, e.g., United States v. Glover, 672 F. Supp. 3d 1072, 1081 (D. Or. 2023) (“The Court concludes that [18 U.S.C.]
§ 242 was a constitutional exercise of Congress’s § 5 enforcement power.”); United States v. Cooney, 217 F. Supp.
417, 419 (D. Colo. 1963) (Similar).
145 Berris, supra note 92, at 18. For a discussion of additional caselaw interpreting this requirement, see Berris, supra
note 92, at 18–19.
146 18 U.S.C. § 242.
147 United States v. Classic, 313 U.S. 299, 326 (1941).
148 One federal appellate court has treated the Fourteenth Amendment state action requirement and the “under color of
law” requirement of § 242 as “coextensive.” United States v. Davis, 971 F.3d 524, 529 n.2 (5th Cir. 2020). For
example, in one case the Fifth Circuit rejected an appeal from defendants convicted under 18 U.S.C. §§ 241 and 242.
United States v. Causey, 185 F.3d 407, 416 (5th Cir. 1999). Although § 241 lacks an “under color of law” requirement,
the Fifth Circuit had previously interpreted it to require proof of state action. Id. at 413. The Fifth Circuit treated that
requirement similarly to the “under color of law” requirement of § 242 and analyzed the convictions under both statutes
through the lens of whether the defendants had acted under color of law. Id. at 413–16.
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typically law enforcement officers and corrections personnel,149 but can also include other public
officials and potentially private persons when acting in conjunction with government
personnel.150
The Fifteenth Amendment
The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on account of race, color, or
previous condition of servitude.”151 Section Two of the Fifteenth Amendment grants Congress the
“power to enforce this article by appropriate legislation.”152 Much of the jurisprudence on the
scope of Congress’s Section Two authority involves broad voting rights legislation focused on
state policies such as the use of literacy tests as a limitation on voting eligibility.153 There, the
Supreme Court has said that “Congress may use any rational means to effectuate the
constitutional prohibition of racial discrimination in voting,”154 although the Court has
subsequently recognized additional limitations.155
There is some indication that Congress has invoked the Fifteenth Amendment as at least a partial
jurisdictional basis for some federal criminal provisions as discussed below,156 but a dearth of
caselaw examining the constitutionality of these laws in the context of the Fifteenth Amendment
means that it is difficult to ascertain the exact contours of Congress’s Section Two authority in
the criminal law arena.157 One limitation appears certain: the Fifteenth Amendment has
traditionally been limited to state action.158 Accordingly, a law prohibiting interference by
149 Cf. Statutes Enforced by the Criminal Section, U.S. DEP’T OF JUST. (Aug. 15, 2023),
https://www.justice.gov/crt/statutes-enforced-criminal-section (“Those prosecuted under the statute typically include
police officers, sheriff’s deputies, and prison guards.”).
150
Berris, supra note 92, at 19–20.
151 U.S. CONST. amend. XV, § 1.
152 Id. § 2. Other provisions of the Constitution authorize Congress to protect primary and general elections for federal
positions, including through criminal laws. See, e.g., United States v. Classic, 313 U.S. 299, 320 (1941) (holding that
the necessary and proper clause—in conjunction with Article I, Section 4, of the Constitution authorizing Congress to
enact laws governing the “manner of holding elections”—made permissible the enactment of a federal criminal law
securing certain voting rights as well as its application in context of interference by individuals with a primary
election); see also, generally RICH, supra note 95, at § 35:78 (“[I]t has been settled that Congress has complete
constitutional power to provide civil and criminal remedies when a person is unlawfully denied the right to vote in
federal elections, including primaries.”).
153 See generally Cong. Rsch. Serv., Amdt14.S2.2 Federal Remedial Legislation, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt15-S2-2/ALDE_00013501/#ALDF_00025012 (last visited Sept. 9,
2024).
154 South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
155 See Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 553 (2013) (holding in the context of the Fifteenth Amendment that
“Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense
in light of current conditions”). For more information on this topic, see generally CRS Legal Sidebar LSB10954,
Recent Developments in the Rights of Private Individuals to Enforce Section 2 of the Voting Rights Act, by L. Paige
Whitaker (2024); CRS Legal Sidebar LSB11002, Allen v. Milligan: Supreme Court Holds That Alabama Redistricting
Map Likely Violated Section 2 of the Voting Rights Act, by L. Paige Whitaker (2023); CRS Testimony TE10033,
History and Enforcement of the Voting Rights Act of 1965, by L. Paige Whitaker (2019).
156 See infra “Select Examples of the Fifteenth Amendment as a Jurisdictional Basis.”
157 See, e.g., United States v. Sandstrom, 594 F.3d 634, 659–60 (8th Cir. 2010) (declining to consider whether Congress
exceeded its authority under the Fifteenth Amendment to enact 18 U.S.C. § 245 and instead resolving the dispute on
Thirteenth Amendment grounds).
158 See, e.g., James v. Bowman, 190 U.S. 127, 139 (1903) (“These authorities show that a statute which purports to
punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the 15th
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government actors with voting would be state action and be valid under the Fifteenth
Amendment.159 As discussed above, private conduct may also be considered state action for
purposes of the Fifteenth Amendment in certain circumstances.160 For example, the Supreme
Court has found state action present in the “exercise by a private entity of powers traditionally
exclusively reserved to the State.”161 One such power recognized by the Court includes the
administration of elections.162 In Terry v. Adams, a three-Justice plurality of the Supreme Court
ruled that the exclusion of African Americans from a primary election violated the Fifteenth
Amendment, although the primary was unofficial, unregulated by state government, and run by a
“self-governing voluntary club.”163 According to the plurality, the primary contravened the
Fifteenth Amendment because it was still integral to the elective process and the outcome of the
general election.164
Select Examples of the Fifteenth Amendment as a Jurisdictional Basis in Federal
Criminal Statutes
Some federal caselaw suggests that various federal hate crime provisions may be grounded in part
in the Fifteenth Amendment.165 For example, in a 1966 opinion, the Supreme Court examined the
application of 18 U.S.C. § 241—a statute prohibiting conspiracies to interfere with civil
rights166—to several Mississippi law enforcement officers in connection with the murders of three
civil rights workers.167 Although decided on Fourteenth Amendment grounds, the Court seemed
to view the statute as grounded at least partially in the Fifteenth Amendment, observing, “We
cannot doubt that the purpose and effect of [§ 241] was to reach assaults upon rights under the
entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not
Amendment upon Congress to prevent action by the state through some one or more of its official representatives.”);
accord RICH, supra note 95, at § 12:20 (“The Fifteenth Amendment was, by traditional construction, limited to state
action.”).
159 See United States v. Raines, 362 U.S. 17, 25 (1960) (“[W]hatever precisely may be the reach of the Fifteenth
Amendment, it is enough to say that the conduct charged—discrimination by state officials, within the course of their
official duties, against the voting rights of United States citizens, on grounds of race or color—is certainly, as ‘state
action’ and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such
discrimination is ‘appropriate legislation’ under it.”).
In one opinion stemming from a hate crime prosecution, the Court recounted the 1870 remarks of Sen. Pool regarding
the enactment of what is now 18 U.S.C. § 241 (prohibiting conspiracies against civil rights). United States v. Price, 383
U.S. 787, 805 (1966). The Court explained that Sen. Pool viewed the purpose of § 241 as punishing violations of the
Fourteenth and Fifteenth Amendments, including by individuals. Id. In that case, the Court approved of the application
of § 241 in the prosecution of several law enforcement officers, although it resolved the issue on Fourteenth
Amendment grounds. Id.
160 See Terry v. Adams, 345 U.S. 461, 462–63 (1953) (plurality opinion).
161 Jackson v. Metro Edison Co., 419 U.S. 345, 352 (1974).
162 See id. (citing Nixon v. Condon, 286 U.S. 73 (1932)).
163 Id. at 463, 470.
164 Id. at 469 (discussing how private primary relates to official primary and general election overseen by government).
165 See, e.g., United States v. Comstock, 560 U.S. 126, 136 (2010) (citing Ex parte Yarbrough, 110 U.S. 651 (1884));
see also United States v. Otherson, 637 F.2d 1276, 1280 (9th Cir. 1980) (chronicling historical relationship between
§ 242 and the Fifteenth Amendment); United States v. Boone, 110 F. Supp. 3d 909, 916–17 (S.D. Iowa 2015)
(describing origins of § 242 and its relationship to the Fifteenth Amendment); United States v. Solomon, 419 F. Supp.
358, 368 (D. Md. 1976) (explaining that “[p]ursuant to its power to regulate interstate commerce and to enforce, by
appropriate legislation, the provisions of the thirteenth, fourteenth, and fifteenth amendments, Congress has enacted
numerous enforcement schemes involving the Attorney General” and listing 18 U.S.C. § 242 as an example).
166 CRS In Focus IF12333, Hate Crimes: Key Federal Statutes, by Peter G. Berris, at 1 (2023).
167 Berris, supra note 92, at 18.
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merely under part of it.”168 Some legislative history also suggests that Congress invoked its
Fifteenth Amendment authority (along with other powers) to enact at least parts of 18 U.S.C.
§ 245.169 Among other things, § 245 prohibits interference with any person affording others an
opportunity to vote without discrimination on account of race.170 That prohibition encompasses
violations by state actors.171 These aspects of § 245 seem to track the contours of the Fifteenth
Amendment in that the offense could cover interference with voting rights by a state actor
motivated by racial animus. However, caselaw examining the Fifteenth Amendment in the
context of § 245 is scarce—constitutional challenges to the statute tend to be resolved on other
grounds than the Fifteenth Amendment.172 For instance, in one case involving a fatal racially
motivated shooting, the defendants appealed their convictions under § 245 on the grounds that
“Congress lacked the authority to enact it pursuant to its Commerce Clause powers, the
Thirteenth Amendment, the Fourteenth Amendment, or the Fifteenth Amendment.”173 The Tenth
Circuit upheld the convictions but resolved the challenge on Thirteenth Amendment grounds and
did not reach the question of whether the statute could be viewed as grounded in the Fifteenth
Amendment.174
Prohibited Conduct (Actus Reus)
Another core component of a federal criminal law is an actus reus or “forbidden act”175—“[t]he
wrongful deed that comprises the physical components of a crime.”176 Without an actus reus, a
criminal law will almost certainly be held invalid.177 A number of considerations underlie this
aspect of criminal law, including the difficulty of proving thoughts without physical
manifestations and “the notion that the criminal law should not be so broadly defined to reach
those who entertain criminal schemes but never let their thoughts govern their conduct.”178
168 United States v. Price, 383 U.S. 787, 805 (1966).
169 S. REP. NO. 90-721, at 6–8 (1967).
170 18 U.S.C. § 245(b)(4)(B).
171 Section 245 covers violations regardless of whether they were committed “under color of law.” Id. § 245(b).
172 As of July 22, 2024, a search on Westlaw of reported federal cases citing to 18 U.S.C. § 245 yields only two
examples that reference the “Fifteenth Amendment” in the same paragraph as a citation to § 245.
173 United States v. Sandstrom, 594 F.3d 634, 659 (8th Cir. 2010).
174 Id. at 660.
175 United States v. Apfelbaum, 445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a
criminal actus reus are generally required for an offense to occur.”); see also MODEL PENAL CODE § 2.01 explanatory
note at 213 (AM. L. INST. 1985) (calling requirement that “the guilt of the defendant be based upon conduct, and that
the conduct include a voluntary act or an omission to perform an act” a “fundamental predicate for all criminal
liability”).
176 Actus Reus, BLACK’S LAW DICTIONARY (12th ed. 2024); see also United States v. Gumbs, 283 F.3d 128, 132 n.3 (3d
Cir. 2002) (same).
177 United States v. Zayac, 765 F.3d 112, 120 (2d Cir. 2014) (“Criminal liability ordinarily requires the ‘concurrence of
an evil-meaning mind with an evildoing hand.’” (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)); see
also Apfelbaum, 445 U.S. at 131 (discussing requirement of mens rea and actus reus); United States v. Ayon-Brito, 981
F.3d 265, 270 (4th Cir. 2020) (“It has been long established ‘that criminal penalties may be inflicted only if the accused
has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in
historical common law terms, has committed some actus reus.’” (quoting United States v. Ayala, 35 F.3d 423, 426 (9th
Cir. 1994))).
178 See LAFAVE, supra note 5, at § 6.1(b).
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The terminology and formulations used to describe and characterize actus reus vary.179 This
report uses the term prohibited conduct to capture the act or omission comprising a criminal
offense, as well as other external circumstances and consequences that are elements of the
offense.180 For example, if a statute criminalizes killing a federal official,181 this report would
refer to the prohibited conduct as including the physical action taken (such as squeezing the
trigger or thrusting the knife) as well as the victim’s status (being a federal official) and the result
(death of the victim).182
The exact issues that will arise when identifying and describing prohibited conduct may vary
based on subject matter. Federal criminal laws are often enacted in response to an issue of
societal concern, which lawmakers conclude merits prosecution and punishment.183 For example,
Congress enacted the mail fraud statute (18 U.S.C. § 1341) in the late 1800s at least in part to
counteract the potential use of the mail for financial deceit targeting rural Americans. 184
Congressional concern about racially motivated violence prompted the enactment of hate crime
statutes like 18 U.S.C. § 245 in the 1960s.185 Growing fears about the dangers of computer
hacking motivated the creation of the Computer Fraud and Abuse Act in the 1980s.186 Identifying
the underlying issue motivating a legislative effort may be relatively straightforward (e.g., fraud,
racial violence, computer hacking), but translating the issue into specific conduct that is
prohibited in a federal criminal statute potentially implicates a number of nuanced legal
questions.
As a hypothetical, consider the issue of fraud associated with fertility treatments.187 Legislation
criminalizing fertility fraud could raise a number of legal and conceptual questions that inform
the scope of the prohibited conduct. For instance, what does it mean to commit fertility fraud?
Does fertility fraud refer to deceptive advertising or promises with respect to the outcomes of
relevant medical services, the act of inseminating a patient with biological material other than that
material consented to by the patient, the omission of relevant information to a patient, or
179 Compare, e.g., State v. Paule, 2024 UT 2, ¶ 29 2024 WL 371416 (Utah Feb. 1, 2024) (“Actus reus refers to the
‘physical components of a crime,’ which include ‘[t]he voluntary act or omission’ and ‘the attendant circumstances’ of
a crime.” (quoting actus reus, BLACK’S LAW DICTIONARY (11th ed. 2019))), with, e.g., Cruz v. Blair, 255 Ariz. 335, 532
P.3d 327, 334 (2023) (“Thus, actus reus is the performance of conduct which can be either: (1) performance of a
voluntary act, or (2) failure to perform a duty imposed by law which the person is physically capable of performing.”);
see also see LAFAVE, supra note 5, at § 6.1(a) (discussing act requirement and different definitions of act).
180 This construction diverges somewhat from other models. See, e.g., MODEL PENAL CODE § 1.13(5) (AM. L. INST.
1985) (“‘conduct’ means an action or omission and its accompanying state of mind, or, where relevant, a series of acts
and omissions”). This report breaks out mental state as a separate element below. See infra “Mental State.”
181 E.g., 18 U.S.C. § 351.
182 Rather than including them in the definition of “conduct,” other models would treat separately (1) the victim’s status
as a federal official and (2) the killing. For such models, these would be a circumstance and a result, respectively—both
elements of the offense. § 1.13. General Definitions., MODEL PENAL CODE § 1.13(9) (AM. L. INST. 1985) (defining
“element of an offense”); but see LAFAVE, supra note 5, at § 6.1(a) (discussing some approaches that treat acts (or
omissions), results, and circumstances as part of the prohibited conduct).
183 But see, e.g., note 1 and accompanying text (describing origin of the federal treason statute).
184 CRS Report R41930, Mail and Wire Fraud: A Brief Overview of Federal Criminal Law, by Charles Doyle, at 1
(2019).
185 Berris, supra note 92, at 21.
186 CRS Report R47557, Cybercrime and the Law: Primer on the Computer Fraud and Abuse Act and Related Statutes,
by Peter G. Berris, at 3–4 (2023).
187 For a short primer on this topic, see generally CRS In Focus IF12168, Fertility Fraud: Federal Criminal Law Issues,
by Peter G. Berris (2022).
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something else?188 Can any person be responsible for a violation or only a certain subset of
individuals, such as a donor or medical provider?189 Is there a jurisdictional basis for federal
legislation, as discussed above?190 The answers to these questions may all shape the contours of
the prohibited conduct in a fertility fraud bill.
This section provides an overview of some of the legal considerations associated with translating
a matter of societal concern into prohibited conduct in federal criminal legislation.
Requirement of a Voluntary Act
For a criminal law to be valid, the prohibited conduct must generally involve a voluntary act by
the defendant,191 and in practice “[m]ost crimes are committed by [an] affirmative action rather
188 Two bills introduced in the 118th Congress illustrate some of the potential variety. For example, the Protecting
Families from Fertility Fraud Act of 2023 would prohibit “misrepresent[ing] the nature or source of DNA used in
assisted reproductive technology . . . or assisted insemination . . . .” H.R. 451, 118th Cong. (2023). In contrast, the
Fighting Fertility Fraud Act of 2023 would criminalize “provid[ing] materially false or misleading information relating
to assisted reproduction, including—(1) the human reproductive material provided or used for assisted reproduction;
(2) the identifying information of the gamete provider including their name, birth date, or address at the time of gamete
provision; or (3) a gamete provider’s medical history including any known physical and mental health illness, the
social, genetic, family medical history of the gamete provider, or the gamete provider’s educational level, ethnicity,
religious background.” H.R. 3710, 118th Cong. (2023). H.R. 3710 would also criminalize providing “(A) human
reproductive material for assisted reproduction other than the selected human reproductive material for which patient
gave consent in writing to use; or (B) a patient with human reproductive material in assisted reproduction without the
gamete provider’s consent or in a manner or to an extent other than that to which the gamete provider consented to.” Id.
189 The two fertility fraud bills discussed above, see supra note 188, illustrate two different possibilities. The Protecting
Families from Fertility Fraud Act of 2023 would apply to “whoever” engages in the prohibited conduct, H.R. 451,
118th Cong. (2023), whereas The Fighting Fertility Fraud Act of 2023 has one provision that would apply to a “person,
health professional, or health facility” and one that would encompass only violations committed by “a health care
professional or health facility.” H.R. 3710, 118th Cong. (2023).
190 See supra “Jurisdictional Basis.” The two fertility fraud bills discussed above, see supra note 188, each include
sections that would limit their applicability to circumstances implicating commerce or the SMTJ. The Protecting
Families from Fertility Fraud Act of 2023, H.R. 451, 118th Cong. (2023); The Fighting Fertility Fraud Act of 2023,
H.R. 3710, 118th Cong. (2023).
191 See LAFAVE, supra note 5, at § 6.1 (“A bodily movement, to qualify as an act forming the basis of criminal liability,
must be voluntary.”). For example, the Model Penal Code (discussed below) states that “[a] person is not guilty of an
offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which
he is physically capable.” MODEL PENAL CODE § 2.01(1) (AM. L. INST. 1985). Similar statements appear frequently in
state jurisprudence. See, e.g., State v. Pena, 178 N.J. 297, 304 (2004) (describing as “bedrock” the “accepted
requirements for criminal liability: proof of ‘a voluntary act and a culpable state of mind [are] the minimum conditions’
for imposing criminal liability.” (quoting State v. Sexton, 160 N.J. 93, 98 (1999))); State v. Armstard, 43,333 (La. App.
2 Cir. 8/13/08), 991 So. 2d 116, 123, writ denied, 2008-2440 (La. 1/16/09), 998 So. 2d 89 (“In order for there to be
criminal conduct, even criminal negligence, there must be an act or failure to act, where ‘act’ refers to an external
manifestation of will through voluntary muscular movement which produces consequences.”). Federal jurisprudence
more typically refers broadly to the requirement of an actus reus to trigger criminal liability, without necessarily
addressing the underlying need for a voluntary act. See, e.g., United States v. Apfelbaum, 445 U.S. 115, 131 (1980)
(“In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to
occur.”); United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (“It has been long established ‘that criminal
penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society
has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus.’” (quoting
United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994))); but c.f. Hill v. Murphy, 785 F.3d 242, 247 (7th Cir. 2015)
(describing actus reus as “the guilty act” and explaining that an act is a “voluntary muscular contraction” (quoting
O.W. HOLMES, JR., THE COMMON LAW 91 (1881)); United States v. Herrera Garcia, No. 23-CR-504 (JSR), 2024 WL
1667661, at *4 (S.D.N.Y. Apr. 18, 2024) (“[A] fundamental principle of criminal law: that a defendant is only guilty of
a crime if a defendant commits an actus reus (a conscious, volitional act) with the requisite mens rea (a guilty mind).”).
The voluntariness requirement reflects a judgment that “[t]he deterrent function of the criminal law would not be
served by imposing sanctions for involuntary action, as such action cannot be deterred.” LAFAVE, supra note 5, at
§ 6.1(c).
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than by [a] non-action.”192 Here the term act is generally construed fairly narrowly, although
formulations vary.193 For example, one construction may be found in the influential Model Penal
Code (MPC), a major work of legal scholarship first produced by the American Law Institute in
1962, which was intended to establish a comprehensive model statute that American jurisdictions
could use to revise their criminal codes.194 The MPC defines an act as a “bodily movement
whether voluntary or involuntary,”195 but involuntary acts may not create criminal liability under
the MPC.196 Examples of involuntary acts under the MPC include “(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting
from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.”197
Omission and Possession
There are at least two categories of offenses that satisfy the act requirement even though they do
not necessarily involve an act (if act is narrowly defined to refer to a bodily movement). The first
of these categories includes statutes imposing criminal liability for “an omission to act where
there is a legal duty” to do so.198 The MPC, for example, defines an omission as a “failure to
act.”199 To illustrate with a federal statute, 18 U.S.C. § 2258 imposes criminal liability for failure
to report child abuse where mandated by law.200
The second category comprises statutes imposing criminal liability for possession.201 Possession,
as one legal scholar has explained, “is not, strictly speaking, an act (bodily movement) or an
omission to act.”202 Regardless, numerous federal statutes criminalize possession,203 and such
statutes have been upheld by courts.204
192 See LAFAVE, supra note 5, at § 6.1(a) (“There are analytical difficulties in calling an omission an act, and thus it is
better simply to acknowledge that either an act or an omission to act contrary to a legal duty suffices.”); id. at § 6.1(e)
(“Though possession is not, strictly speaking, an act (bodily movement) or an omission to act, crimes based upon
possession are generally upheld.”).
193 Id. at § 6.1(a).
194 See David M. Treiman, Recklessness and the Model Penal Code, 9 AM. J. CRIM. L. 281, 284–85 (1981) (describing
MPC as “model for” reforming common-law mens rea principles reflected in statutes of the time).
195 MODEL PENAL CODE § 1.13(2) (AM. L. INST. 1985).
196 Id. § 2.01.
197 Id.
198 LAFAVE, supra note 5, at § 6.1.
199 MODEL PENAL CODE § 1.13(4) (AM. L. INST. 1985).
200 E.g., 18 U.S.C. § 2258.
201 See, e.g., United States v. Abdulle, 564 F.3d 119, 127 (2d Cir. 2009) (“The actus reus element for the possession
charge required the government to then prove that Mohamed in fact possessed cathinone . . . .”); United States v.
Planck, 493 F.3d 501, 505 (5th Cir. 2007) (“For the possession statute in issue, however, the actus reus is the
possession of child pornography; the Government need only prove the defendant possessed the contraband at a single
place and time to establish a single act of possession and, therefore, a single crime.”); United States v. Rodriguez, 961
F.2d 1089, 1092 (3d Cir. 1992) (“[T]he actus reus for this offense is possession . . . .”).
202 LAFAVE, supra note 5, at § 6.1(e).
203 See, e.g., 18 U.S.C. § 487 (criminalizing possession of counterfeit dies for coins); 18 U.S.C. § 931 (prohibiting
possession of body armor by violent felons); 21 U.S.C. § 844 (covering possession of controlled substances).
204 See, e.g., Baender v. Barnett, 255 U.S. 224, 225 (1921) (rejecting challenge to statute criminalizing possession of
counterfeit dies); accord LAFAVE, supra note 5, at § 6.1(e) (“[C]rimes based upon possession are generally upheld.”).
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Status Offenses
Status offenses comprise one category that may pose a particular issue with respect to the act
requirement. As one legal scholar has explained, status offenses are crimes such as vagrancy,
which are “often defined in such a way as to punish status (e.g., being a vagrant) rather than to
punish specific action or omission to act.”205 On a number of occasions, examples of which
follow, the Supreme Court has invalidated laws establishing status offenses.
In its 1957 opinion in Lambert v. California,206 the Court reversed a conviction under an
ordinance that made it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a
period of more than five days without registering” and required “any person having a place of
abode outside the city to register if he comes into the city on five occasions or more during a 30day period.”207 The Court explained that the law criminalized “conduct that is wholly passive—
mere failure to register,” which it viewed as “unlike the commission of acts, or the failure to act
under circumstances that should alert the doer to the consequences of his deed.”208 As a result, the
Court held that the ordinance violated the defendant’s due process right to notice.209 Following
Lambert, however, a number of mandatory registration laws have survived constitutional
challenges.210 For instance, in examining an indictment for a violation of the federal Sex Offender
Registration and Notification Act (SORNA), the Ninth Circuit agreed with the government that
“Lambert is inapplicable because convicted sex offenders are generally subject to registration
requirements in all fifty states, and [the defendant] was aware that he was obligated to register as
a sex offender.”211
In a 1962 opinion in Robinson v. California,212 the Court reversed a conviction under a state law
that criminalized addiction to narcotics without requiring any additional act by the defendant.
According to the Court, the statute was distinguishable from “one which punishes a person for the
use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior
resulting from their administration,” since it instead made “the ‘status’ of narcotic addiction a
criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’”213
The Court held that the law, “which imprisons a person . . . afflicted [by narcotics addiction] as a
criminal, even though he has never touched any narcotic drug within the State or been guilty of
any irregular behavior there, inflicts a cruel and unusual punishment” in violation of the Eighth
Amendment, as incorporated against the states through the Fourteenth Amendment.214
Status offenses can often be “reformulated and redrafted to conform to basic principles of
criminal justice.”215 For instance, if a “statute that penalizes being an alcoholic or drug addict is
impermissible,” a “statute that penalizes appearing in public in an intoxicated state” may be
205 LAFAVE, supra note 5, at § 6.1(d).
206 355 U.S. 225 (1957).
207 Id. at 226.
208 Id. at 228.
209 Id. at 228–30.
210 See CRS Report R42692, SORNA: A Legal Analysis of 18 U.S.C. § 2250 (Failure to Register as a Sex Offender), by
Charles Doyle, at 24 (2021) (surveying cases).
211 United States v. Elkins, 683 F.3d 1039, 1049 (9th Cir. 2012).
212 370 U.S. 660 (1962).
213 Id. at 666.
214 Id. at 667–68. For a discussion of incorporation under the Fourteenth Amendment see generally Cong. Rsch. Serv.,
Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-4-3/ALDE_00013746/ (last visited Sept. 9, 2024).
215 LAFAVE, supra note 5, at § 6.1(d).
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permissible.216 The Supreme Court’s 1968 opinion in Powell v. Texas217 illustrates this distinction.
Powell stemmed from the conviction of a defendant under a state law making it a crime to “get
drunk or be found in a state of intoxication in any public place, or at any private house except [a
person’s] own.”218 The defendant argued that he had a compulsion to drink and that the law
amounted to cruel and unusual punishment pursuant to Robinson.219 A four-Justice plurality of the
Court disagreed and explained that the defendant was convicted “not for being a chronic
alcoholic, but for being in public while drunk on a particular occasion.”220 In other words, the
plurality concluded that the law did not seek “to punish a mere status” as the law at issue in
Robinson did, but instead punished a voluntary act, being in public while intoxicated.221 In a
concurring opinion, Justice White said that the result would have been different if the public
intoxication were an unavoidable result of chronic alcoholism.222 For example, according to
Justice White, the Eighth Amendment would prohibit criminalizing public intoxication for
chronic alcoholics who are homeless because “they have no place else to go and no place else to
be when they are drinking.”223 Four dissenting Justices would have agreed with that conclusion.224
The primary point of departure between Justice White and the dissenting Justices was over the
record in Powell—Justice White agreed with the ultimate result in Powell because “nothing in the
record indicates that [the defendant] could not have done his drinking in private or that he was so
inebriated at the time that he had lost control of his movements and wandered into the public
street.”225 The dissenting Justices concluded, however, that the “appellant is a ‘chronic alcoholic’
who, according to the trier of fact, cannot resist the ‘constant excessive consumption of alcohol’
and does not appear in public by his own volition but under a compulsion’ which is part of his
condition.”226Another example of the distinction between an impermissible status offense and a
seemingly permissible conduct-based offense may be found in 8 U.S.C. § 1326, which in relevant
part provides that “any alien who (1) has been arrested and deported or excluded and deported,
and thereafter (2) enters, attempts to enter, or is at any time found in, the United States . . .
[without the consent of the Attorney General] shall be fined . . . or imprisoned . . . or both.”227
Some federal appellate courts have rejected the argument that “the ‘found in’ provision of § 1326
impermissibly punishes aliens for their ‘status’ of being found in the United States.”228 In United
States v. Ayala, the Ninth Circuit distinguished § 1326 from the law at issue in Robinson,
explaining that “[a] conviction under § 1326 for being ‘found in’ the United States necessarily
216 Id.; see also Powell v. State of Tex., 392 U.S. 514, 517 (1968) (plurality opinion).
217 Powell, 392 U.S. at 517.
218 Id. (quoting Vernon's Ann. Texas Penal Code, Art. 477 (1952)).
219 Id. at 532.
220 Id.
221 Id.
222 Id. at 551–52 (1968) (White, J., concurring).
223 Id.
224 Id. at 570 (Fortas, J., dissenting).
225 Id. at 553 (1968) (White, J., concurring).
226 Id. at 570 (Fortas, J., dissenting).
227 United States v. Ayala, 35 F.3d 423, 424 (9th Cir. 1994) (quoting 8 U.S.C. § 1326). For more information on
§ 1326, see generally CRS In Focus IF11410, Immigration-Related Criminal Offenses, by Kelsey Y. Santamaria
(2023).
228 Ayala, 35 F.3d at 425–26; accord United States v. Tovias-Marroquin, 218 F.3d 455, 457 (5th Cir. 2000).
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requires that a defendant commit an act: he must re-enter the United States without permission
within five years after being deported.”229
Federal appellate courts had split on the issue of whether the Robinson and Powell distinction
between impermissible status offenses and permissible conduct-based offenses allowed
“criminalizing conduct that is an unavoidable consequence of one’s status.”230 In the 2024
opinion City of Grants Pass v. Johnson, the Supreme Court examined this issue in the context of a
municipal ordinance criminalizing sleeping or camping in public.231 In a divided opinion, the
Ninth Circuit concluded that the ordinance constituted cruel and unusual punishment, citing to
Powell’s concurrence and dissent for the proposition that “a person cannot be prosecuted for
involuntary conduct if it is an unavoidable consequence of one’s status.”232 The Ninth Circuit
observed that this would be the inevitable outcome for some of the involuntary homeless
population in Grants Pass, which exceeded the available shelter space in the jurisdiction.233
The Supreme Court disagreed, concluding that the camping ordinance was not a status offense of
the type barred in Robinson (which lacked a mental state or act requirement), because the
ordinance in Grants Pass required “actions like ‘occupy[ing] a campsite’ on public property ‘for
the purpose of maintaining a temporary place to live.’”234 The Court likened the facts of Grants
Pass to those of Powell and relied on the Powell plurality’s distinction between laws
criminalizing status and those criminalizing acts, even if on some level those acts may be an
involuntary result of the underlying status.235 Although the Court did not reconsider Robinson, it
reiterated that the Cruel and Unusual Punishments Clause of the Eighth Amendment focuses on
the method or kind of punishment a government may impose, rather than on the question of what
a government may criminalize.236 Additional analysis of Grants Pass and its broader implications
for status offenses and homelessness laws may be found in other CRS products.237
Inchoate Offenses
The prohibited conduct in a federal criminal statute need not be completed conduct (e.g., causing
bodily injury to another)238 but can also include attempt (e.g., intending to cause bodily injury to
229 Ayala, 35 F.3d at 426; accord Tovias-Marroquin, 218 F.3d at 457; see also United States v. Ayon-Brito, 981 F.3d
265, 270 (4th Cir. 2020) (“In short, the conduct element of a § 1326 violation is ‘entry’ (or ‘attempted entry’), not
‘found.’”).
230 CRS Legal Sidebar LSB11203, The Eighth Amendment and Homelessness: Supreme Court Upholds Camping
Ordinances in City of Grants Pass v. Johnson, by Whitney K. Novak and Dave S. Sidhu, at 1 (2024).
231 City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 2202, 2213 (2024).
232 Johnson v. City of Grants Pass, 72 F.4th 868, 893 (9th Cir. 2023), cert. granted sub nom. City of Grants Pass,
Oregon v. Johnson, 144 S. Ct. 679 (2024), and rev'd and remanded sub nom. City of Grants Pass, Oregon v. Johnson,
144 S. Ct. 2202 (2024).
233 Id. at 894.
234 Grants Pass, 144 S. Ct. at 2216–18.
235 Id. at 2220 (“This case is no different from Powell. Just as there, the plaintiffs here seek to expand Robinson’s
‘small intrusion ‘into the substantive criminal law.’ Just as there, the plaintiffs here seek to extend its rule beyond laws
addressing ‘mere status’ to laws addressing actions that, even if undertaken with the requisite mens rea, might ‘in some
sense’ qualify as ‘involuntary.’ And just as Powell could find nothing in the Eighth Amendment permitting that course,
neither can we.”).
236
Id. at 2215.
237 See generally Novak and Sidhu, supra note 230.
238 E.g., 18 U.S.C. § 249(a)(1).
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another and taking a substantial step to do so),239 conspiracy (e.g., agreement between two or
more persons to cause bodily injury to another),240 and solicitation (e.g., inducing someone else to
cause bodily injury to another).241 Attempt, conspiracy, and solicitation are sometimes described
as inchoate offenses, a term that refers to “[a] step toward the commission of another crime, the
step in itself being serious enough to merit punishment.”242 The act requirement generally does
not pose an issue for inchoate offenses, because the step itself involves an act.243 For example,
attempt requires proof of an “overt act qualifying as a substantial step toward completion of his
goal.”244 Similarly, conspiracy generally requires proof of “an agreement between two or more
persons to pursue an unlawful objective.”245 The formation of such an agreement will “require
more than just a thought—some manner of concurrence with the proposal is needed,”246 which
could entail acts such as conversing247 with or sending letters to and from co-conspirators.248
Some federal conspiracy statutes additionally require proof of an overt act.249 Solicitation will
generally necessitate communication that involves an act such as typing messages250 or
speaking.251 In other words, although the ultimate goal of attempt, conspiracy, or solicitation may
not necessarily result, each still “requires some activity beyond the mere entertainment of the
intent.”252
Thoughts and Speech
The conduct prohibited by a criminal law must be more than mere internal thoughts, which in and
of themselves cannot be criminalized.253 In part, this is because thoughts are not an act that would
239 E.g., id. For an overview of federal attempt law, see generally CRS Report R42001, Attempt: An Overview of
Federal Criminal Law, by Charles Doyle (2020).
240 E.g., 18 U.S.C. §§ 249(a)(6), 371. For an overview of federal conspiracy law, see generally CRS Report R41223,
Federal Conspiracy Law: A Brief Overview, by Charles Doyle (2020).
241 E.g., 18 U.S.C. § 373.
242 Offense, BLACK’S LAW DICTIONARY (12th ed. 2024); see also Doyle, supra note 240, at 15 (“Conspiracy and attempt
are both inchoate offenses, . . . forms of introductory misconduct that the law condemns lest they result in some
completed form of misconduct.”).
243 LAFAVE, supra note 5, at § 6.1(b).
244 United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007).
245 United States v. Nicholson, 961 F.3d 328, 338 (5th Cir. 2020).
246 United States v. Ojedokun, 16 F.4th 1091, 1105 (4th Cir. 2021).
247 See, e.g., United States v. Fisch, 851 F.3d 402, 407 (5th Cir. 2017) (discussing conversations as evidence of entering
criminal conspiracy).
248 See, e.g., United States v. Wardell, 591 F.3d 1279, 1288 (10th Cir. 2009) (listing letter sent by defendant as
evidence of unlawful agreement to assault a witness).
249 Nicholson, 961 F.3d at 338.
250 E.g., United States v. White, 698 F.3d 1005, 1008 (7th Cir. 2012) (per curiam).
251 E.g., United States v. Buckalew, 859 F.2d 1052, 1053 (1st Cir. 1988).
252 LAFAVE, supra note 5, at § 6.1(b).
253 See United States v. Apfelbaum, 445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a
criminal actus reus are generally required for an offense to occur.”); United States v. Zayac, 765 F.3d 112, 120 (2d Cir.
2014) (“Criminal liability ordinarily requires the ‘concurrence of an evil-meaning mind with an evildoing hand.’”
(quoting Morissette v. United States, 342 U.S. 246, 251 (1952)); In re Leroy T., 285 Md. 508, 513 (1979) (describing
as “a basic premise of Anglo-American law” the idea “that no crime is committed by the mere harboring of evil intent
not accompanied by an act, or an omission to act where there is a legal duty to act”); State v. McGrath, 574 N.W.2d 99,
101 (Minn. Ct. App. 1998) (“One basic premise of Anglo–American criminal law is that no crime can be committed by
bad thoughts alone.”); LAFAVE, supra note 5, at 6:1 (“Bad thoughts alone cannot constitute a crime; there must be an
act, or an omission to act where there is a legal duty to act.”). In addition to such concerns, the criminalization of mere
(continued...)
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satisfy the act requirement discussed above.254 Criminalizing thought, without more, would also
raise broader constitutional concerns.255 For instance, the First Amendment bars the imposition of
a criminal punishment for “abstract beliefs” alone.256
The articulation of thoughts in speech may satisfy the act requirement.257 As one scholar has
explained, “[m]ere thoughts must be distinguished from speech; an act sufficient for criminal
liability may consist of nothing more than the movement of the tongue so as to form spoken
words.”258 Even if speech may be an act for criminal law purposes, its criminalization can raise
First Amendment issues, as discussed in other CRS products.259 Nevertheless, a number of federal
criminal statutes inherently prohibit conduct that may incidentally or primarily involve speech,
such as those prohibiting transmitting threats in interstate commerce,260 perpetrating certain
hoaxes,261 solicitation,262 and possessing child sexual abuse materials.263
Other Elements
In addition to acts or omissions, prohibited conduct in a federal criminal law may include
numerous other elements that will vary based on the focus and scope of the law. For example, the
MPC lists as possible elements facts that
•
are “included in the description of the forbidden conduct in the definition of the
offense; or”
thought would raise serious questions about proof. See Diaz v. United States,144 S. Ct. 1727, 1742 (2024) (Gorsuch, J.
dissenting) (“no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are
demonstrated by outward actions” (quoting 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 21 (1769)).
254 See United States v. Ojedokun, 16 F.4th 1091, 1104–05 (4th Cir. 2021) (“It is an axiomatic principle of the criminal
law that thoughts alone may not be punished—every criminal offense must proscribe some conduct, some actus reus.”);
see also supra “Requirement of a Voluntary Act.”
255 See United States v. Schwimmer, 279 U.S. 644, 654–55 (1929) (Holmes, J., dissenting) (“[I]f there is any principle
of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not
free thought for those who agree with us but freedom for the thought that we hate.”), overruled in part by Girouard v.
United States, 328 U.S. 61, 66 (1946); Cf. United States v. Ballard, 322 U.S. 78, 86 (1944) (“Freedom of thought,
which includes freedom of religious belief, is basic in a society of free men.”).
256 For example, in Dawson v. Delaware, the Supreme Court concluded that the admission of evidence regarding the
“abstract beliefs” of a defendant at a capital sentencing proceeding violated his First Amendment rights where “on the
present record one is left with the feeling that the . . . evidence was employed simply because the jury would find these
beliefs morally reprehensible.” 503 U.S. 159, 168 (1992); see also United States v. Miller, 767 F.3d 585, 592 (6th Cir.
2014) (examining the “line separating constitutional regulation of conduct and unconstitutional regulation of beliefs”
and interpreting a federal hate crime statute as “[r]equiring a causal connection between a defendant’s biased attitudes
and his impermissible actions [that] ensures that the criminal law targets conduct, not bigoted beliefs that have little
connection to the crime.”).
257 LAFAVE, supra note 5, at § 6.1(b). For instance, speech integral to criminal conduct may generally be criminalized.
See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (“It rarely has been suggested that the
constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of
conduct in violation of a valid criminal statute.”).
258 LAFAVE, supra note 5, at § 6.1(b).
259 E.g., CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion (2024) (hereinafter
Categories of Speech); CRS In Focus IF12308, Free Speech: When and Why Content-Based Laws Are Presumptively
Unconstitutional, by Victoria L. Killion (2023).
260 E.g., 18 U.S.C. § 875.
261
E.g., 18 U.S.C. § 1038.
262 E.g., 18 U.S.C. § 373.
263 See Killion, Categories of Speech, supra note 259, at 2.
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•
•
•
•
“establish[] the required kind of culpability; or”
“negative[] an excuse or justification for such conduct; or”
“negative[] a defense under the statute of limitations; or”
“establish[] jurisdiction or venue.”264
In practice, it can be difficult to fully distinguish between categories such as these in particular
federal criminal laws.265 For example, if an offense states that the victim must be a federal
employee acting in the course of their official duties, that might be both a requisite fact “included
in the description of the forbidden conduct” and a requisite fact establishing jurisdiction.266
Circumstances
Criminal statutes may include circumstance elements.267 Unlike offense elements proscribing
actions or conduct, circumstance elements are sometimes defined as comprising facts in existence
when the prohibited actions are performed.268 For example, if it were “a crime to jaywalk at 2:00
p.m., the ‘conduct element’ would be ‘jaywalking,’ while the ‘circumstance element’ would be
the time-of-day requirement.”269 In a statute criminalizing harboring a person for whom an arrest
warrant has been issued,270 the circumstance element is the issuance of an arrest warrant.271 In
federal criminal laws, many circumstance elements relate to specific characteristics of the
offender or victim. For example, in a statute criminalizing “having intercourse with a person
under 14 years old,” the age of the victim would be the circumstance element.272
264 MODEL PENAL CODE § 1.13(9) (AM. L. INST. 1985). Conduct under the MPC also includes a mental state, which is
itself therefore an element for MPC purposes. Id. § 1.13(4). This report addresses mental states as a separate building
block. See infra “Mental State.”
265 MODEL PENAL CODE § 1.13 explanatory note at 211 (AM. L. INST. 1985) (“[I]n federal law . . . many factors that
ought the be viewed as merely jurisdictional (e.g., use of the mails or movement in interstate commerce) are often
viewed as if they were of the essence of the offense involved.”).
266 For example, 18 U.S.C. §§ 111 and 1114 protect certain federal employees acting in the course of their official
duties from assault or unlawful killing, among other things. Some cases describe the element requiring that the victim
be a federal employee acting in the course of his or her official duties as a jurisdictional one. See, e.g., United States v.
Wallace, 368 F.2d 537, 538 (4th Cir. 1966) (“An attack which would constitute a common law offense of battery, for
which the actor could be prosecuted and convicted in a state court, was made by the statute triable and punishable in a
federal court if the victim was, in fact, a federal official engaged in the performance of his official duties.”). Some cases
describe the fact that the victim is a federal officer engaged in performance of official duties as affecting the scope of
the statute’s protections, which could be viewed as a matter of the contours of prohibited conduct. See, e.g., Bennett v.
United States, 285 F.2d 567, 570 (5th Cir. 1960) (examining which officers are protected by federal statutes protecting
certain employees).
267 See United States v. Rodriguez-Moreno, 526 U.S. 275, 280 n. 4 (1999) (describing circumstance element in statute
barring certain transactions involving laundered money).
268 See United States v. Brennan, 452 F. Supp. 3d 225, 234 (E.D. Pa. 2020) (differentiating between circumstance and
conduct elements in the context of establishing venue for a criminal prosecution and collecting cases); see also
Circumstance, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining attendant circumstance as “[a] fact that is
situationally relevant to a particular event or occurrence. A fact-finder often reviews the attendant circumstances of a
crime to learn, for example, the perpetrator's motive or intent.”). The MPC defines element of an offense as including
attendant circumstances, but does not in turn define attendant circumstances. MODEL PENAL CODE § 1.13(9) (AM. L.
INST. 1985).
269 Brennan, 452 F. Supp. 3d at 234.
270 18 U.S.C. § 1071.
271 United States v. Spivey, 956 F.3d 212, 215–16 (4th Cir. 2020).
272 Paul H. Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1 BUFF. CRIM. L. REV. 225, 235–36
(1997).
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Offender or Victim Specifics
One key question in considering the scope of a federal criminal law is identifying whom it covers.
Many federal criminal statutes are general in this regard.273 For example, 18 U.S.C. § 331 applies
to “[w]hoever fraudulently alters, defaces, mutilates, impairs, diminishes, falsifies, scales, or
lightens any of the coins coined at the mints of the United States . . . .”274 In contrast, other federal
criminal provisions include language limiting their applicability to offenders based on particular
characteristics.275 For instance, 18 U.S.C. § 2251(b)—one of several federal criminal statutes
prohibiting various conduct associated with child sexual abuse material—applies only to parents,
legal guardians, or others with control or custody of the child.276 As another illustration, federal
law mandates reporting of child abuse in some circumstances and imposes criminal penalties for
failing to make such a report,277 with this regime applying only to foster parents, physicians,
nurses, social workers, psychologists, and teachers, among other enumerated categories.278 Such
limitations are not unique to the context of child-abuse-related statutes. For instance, a federal
statute criminalizes possession of biological agents or toxins in certain circumstances by
restricted persons such as fugitives from justice, individuals indicted or convicted of felonies, and
unlawful users of controlled substances.279
Relatedly, while some federal criminal statutes are generally applicable to offending conduct
targeting “any person”280 or the government,281 some offenses apply only to conduct targeting
certain types of victims.282 Criminal laws protecting minors comprise one common category.283
Certain criminal statutes also apply where the victims are individuals in federal custody,284
prospective voters,285 federal officials,286 and foreign officials,287 among others.288
Not all distinctions based on victim or offender specifics are permissible. For example, a criminal
law that protects or punishes individuals of some races, colors, or national origins, but not others,
273 See, e.g., 18 U.S.C. § 37 (restricting violence at international airports when committed by “[a] person who” engages
in particular behaviors); id. § 287 (authorizing criminal penalties for “[w]hoever makes” certain fraudulent claims); id.
§ 1301 (prohibiting importation of lottery tickets in certain circumstances and authorizing penalties for “[w]hoever”
engages in prohibited conduct).
274 Id. § 331 (emphasis added).
275 See, e.g., id. § 645 (prohibiting certain acts of embezzlement committed by a “United States marshal, clerk, receiver,
referee, trustee, or other officer of a United States court, or any deputy, assistant, or employee of any such officer”); id.
§ 648 (proscribing certain acts of embezzlement committed by “an officer or other person charged by any Act of
Congress with the safe-keeping of the public moneys”); Id. § 2381 (authorizing criminal penalties for treason
committed by those “owing allegiance to the United States”).
276 Id. § 2251(b).
277 Id. § 2258; 34 U.S.C. § 20341.
278 34 U.S.C. § 20341(b).
279 18 U.S.C. § 175b.
280 E.g., id. § 249(a)(1).
281 E.g., id. § 2384.
282 See infra notes 283–288.
283 E.g., 18 U.S.C. §§ 2243(a), 2251, 2251A, 2252, 2252A.
284 E.g., id. § 2243(c).
285 E.g., id. § 594.
286
E.g., id. § 111.
287 E.g., id. § 1116.
288 E.g., id. § 1344 (making it a crime, to among other things “defraud a financial institution”).
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could run afoul of constitutional provisions mandating equal protection under the law.289
Similarly, a statute that protects some religions but not others would raise significant
constitutional questions under the First Amendment.290
Results
Some criminal laws authorize punishment (or increased punishment)291 only when a particular
result occurs.292 In general, “[h]omicide offenses, personal injury offenses, and property
destruction offenses” are examples of laws that “require a resulting physical harm.”293 At the
federal level, laws requiring proof of particular results294 include (as examples) an antihacking
provision that applies where certain actions result in damage to a computer,295 a hate crime law
barring causing bodily injury because of particular biases,296 and a statute authoring certain
penalties for drug trafficking offenses that result in death.297
289 The Equal Protection Clause of the Fourteenth Amendment bars states from depriving anyone within their
jurisdiction of the equal protection of the law. U.S. CONST. amend. XIV, § 1. Although that provision expressly applies
only to the states, id., the Supreme Court has held that the Due Process Clause of the Fifth Amendment requires
identical “[e]qual protection analysis . . . as that under the Fourteenth Amendment” with respect to the federal
government. Buckley v. Valeo, 424 U.S. 1, 93 (1976); see also Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954),
supplemented sub nom. Brown v. Bd. of Educ., 349 U.S. 294 (1955) (discussing interaction between the principles of
due process and equal protection). In discussing equal protection requirements, the Supreme Court has expressed
extreme skepticism of laws that draw distinctions “according to race” or ancestry. E.g., Loving v. Virginia, 388 U.S. 1,
11 (1967) (explaining that at a minimum, “the Equal Protection Clause demands that racial classifications, especially
suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’” and, “if they are ever to be upheld, they must be
shown to be necessary to the accomplishment of some permissible state objective, independent of the racial
discrimination which it was the object of the Fourteenth Amendment to eliminate.”) (quoting Korematsu v. United
States, 323 U.S. 214, 216 (1944)); see also Bolling, 347 U.S. at 499 (“Classifications based solely upon race must be
scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.”). For a
discussion of race-based classifications and equal protection, see generally Cong. Rsch. Serv., Amdt14.S1.8.1.1
Overview of Race-Based Classifications, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/
amdt14-S1-4-1-1/ALDE_00000816/ (last visited Sept. 9, 2024).
290 See McCreary Cty., Ky. v. ACLU, 545 U.S. 844, 860 (2005) (explaining that when the government manifests “a
purpose to favor one faith over another, or adherence to religion generally,” it contravenes the “value of official
religious neutrality” under the Establishment Clause of the First Amendment); Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 540 (1993) (striking down local ordinance on the grounds that it discriminated against
specific religion in violation of the First Amendment protection of free exercise of religion); see also generally Susan
Gellman & Susan Looper-Friedman, Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the
Establishment Clause), 10 U. PA. J. CONST. L. 665 (2008) (evaluating the possible role of the Equal Protection Clause
in the context of laws differentiating between religions). For discussion of First Amendment issues that might be
relevant were a criminal statute to give preference to a particular religion, see generally Cong. Rsch. Serv., First
Amendment: Amdt1.2.1 Overview of The Religion Clauses, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-2-1/ALDE_00013267/ (last visited Sept. 9, 2024).
291 See infra “Punishment.”
292 The MPC, for instance, includes results in its definition of elements of an offense but does not define the term.
Robinson, supra note 272, at 235–36.
293 Id. at 235.
294 Even where results do not necessarily occur, the proscribed conduct may still sometimes be prosecuted as attempt.
See generally Doyle, supra note 239.
295
See Berris, supra note 186, at 18–21 (2023) (describing 18 U.S.C. § 1030(a)(5)).
296 See Berris, supra note 92, at 33–38 (2022) (discussing 18 U.S.C. § 249).
297 21 U.S.C. § 841(b).
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Jurisdiction and Venue
As discussed above, federal criminal statutes routinely contain jurisdictional elements that
connect the offense to a source of constitutional authority for Congress to legislate.298 Common
examples include requirements that the offense occurs in the special maritime and territorial
jurisdiction of the United States (SMTJ),299 is committed in or affecting interstate or foreign
commerce,300 or targets federal lands or employees.301
Although less common, some federal criminal statutes contain provisions concerning venue—the
“proper place” for a prosecution to occur or the geographical area “over which a trial court has
jurisdiction.”302 For example, 40 U.S.C. § 5104 criminalizes a wide array of behavior when it
occurs in U.S. Capitol buildings or on Capitol grounds.303 A related statute, 40 U.S.C. § 5109,
specifies that the venue for violations of § 5104—depending on the particular violation—is either
in the U.S. District Court for the District of Columbia or the Superior Court for the District of
Columbia.304 Venue is one area where Congress’s flexibility is potentially limited significantly by
two constitutional provisions.305 The first—Article III, Section 2 of the Constitution—restricts the
permissible location of criminal trials, requiring that they “be held in the State where the said
Crimes shall have been committed; but when not committed within any State, the Trial shall be at
such Place or Places as the Congress may by Law have directed.”306 The second—the Sixth
Amendment—provides among other things that a criminal defendant enjoys the right to a trial
“by an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law.”307 In tandem, both provisions generally
limit the permissible geographical location for a criminal trial to within the state where a given
crime occurred.308
Void-for-Vagueness
Prohibited conduct in a criminal statute must be defined with “sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). The Supreme Court has emphasized that while this
vagueness “doctrine focuses both on actual notice to citizens and arbitrary enforcement,” the “more important
aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the
requirement that a legislature establish minimal guidelines to govern law enforcement.’” Id. at 357–58 (quoting
Smith v. Goguen, 415 U.S. 566, 574 (1974)). Laws that do not meet this requirement may be struck down as voidfor-vagueness in violation of constitutional due process protections. For example, in Kolender, the Supreme Court
298 See supra “Jurisdictional Basis”
299 See supra “Special Maritime and Territorial Jurisdiction.”
300 See supra “Commerce Clause.”
301 See supra “Federal Property as Jurisdictional Basis,” “Federal Personnel as Jurisdictional Basis.”
302 Venue, BLACK’S LAW DICTIONARY (12th ed. 2024).
303 40 U.S.C. § 5104.
304 Id. § 5109.
305 See infra notes 306-307.
306 U.S. CONST. art. III, § 2, cl. 3 (emphasis added); see also FED. R. CRIM. P. 18 (codifying constitutional venue
provision). The Federal Rules of Criminal Procedure allow the defendant to seek a change of venue in certain
circumstances. FED. R. CRIM. P. 21. Transfer of venue is mandatory “if the court is satisfied that so great a prejudice
against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.”
Id. The court has discretion to “transfer the proceeding, or one or more counts, against that defendant to another district
for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” Id.
307 U.S. CONST. amend. VI (emphasis added).
308 Circumstance elements may not establish venue. See United States v. Bowens, 224 F.3d 302, 310 (4th Cir. 2000)
(“Thus, only the essential conduct elements of an offense, not the circumstance elements, provide a basis for venue.”).
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considered “a facial challenge to a [state] criminal statute that require[d] persons who loiter or wander on the
streets to provide a ‘credible and reliable’ identification and to account for their presence when requested by a
peace officer under circumstances that would justify a stop under” a particular Fourth Amendment precedent. Id.
at 353. The Kolender Court explained that the law contained “no standard for determining what a suspect has to
do in order to satisfy the requirement to provide a ‘credible and reliable’ identification” and therefore “vest[ed]
virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the
statute.” Id. at 358. As a result, the Court held that the law was unconstitutionally vague under the Due Process
Clause of the Fourteenth Amendment. Id. at 353.
As a general rule, the more open-ended the prohibited conduct, the more likely it is to be vague, although where
possible federal courts may avoid vagueness by employing a narrow construction of a criminal law. See, e.g., Dubin
v. United States, 599 U.S. 110, 129–31 (2023).
When drafting a statute, Congress may narrow its scope not only by carefully delineating the conduct prohibited,
but also sometimes by requiring proof of a heightened mental state. Compare, e.g., United States v. Fischer, 64
F.4th 329, 351–52 (D.C. Cir.) (Walker, J. concurring) (explaining the relationship between a mental state and an
act requirement and observing the danger of a “breathtaking” scope if a statute has “a broad act element and an
even broader mental state”), cert. granted, 144 S. Ct. 537 (2023), and vacated and remanded, 144 S. Ct. 2176 (2024)
with, e.g., Fischer, 64 F.4th at 382 (Katsas, J. dissenting) (disagreeing that a narrow mental state requirement could
provide “meaningful limits” in an obstruction statute if its prohibited conduct is interpreted broadly). The next
section of this report discusses mental states.
Mental State
As one federal appellate court has explained, a “basic tenet of criminal law provides that actus
non facit reum nisi mens sit rea.”309 According to some legal scholars, the phrase, which means
“the act is not culpable unless the mind is guilty,” has been in use for “at least approximately one
thousand years.”310 Embodied in the phrase is the “universal and persistent” notion that “an injury
can amount to a crime only when inflicted by intention.”311 In contemporary American law, the
concept of mens rea, or a “guilty mind,” reflects this idea that a crime generally must consist of
not only a “harmful act” but also a “mental element” or criminal intent sufficient to justify
punishment.312 Courts and legal scholars sometimes use a variety of phrases to describe all or part
of this mental-state requirement, including “guilty mind,” scienter, criminal intent, and mens
rea.313
309 United States v. Bates, 96 F.3d 964, 967 (7th Cir. 1996), aff'd, 522 U.S. 23 (1997); see also LAFAVE, supra note 5,
at § 5.1(a) (similar).
310 Matthew R. Ginther & Francis X. Shen, et al., Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt,
71 VAND. L. REV. 241, 245 n.10 (2018); see also Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV. 974, 974 (1932)
(stating that the phrase has been used “[f]or hundreds of years . . . with unbroken cadence”).
311 Morissette v. United States, 342 U.S. 246, 250 (1952).
312 Id. at 250–51. This principle addresses broader notions of the purposes of criminal law and its effectiveness in
deterring, reforming, and/or punishing, that is, what sorts of behaviors are justly proscribed and can reasonably be
expected to be curtailed by the threat of criminal penalties. See, e.g., id. (observing that the concept of a mental element
in criminal law “is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the
rational basis for a . . . substitution of deterrence and reformation in place of retaliation and vengeance as the
motivation for public prosecution”); Stephen J. Morse, Inevitable Mens Rea, 27 HARV. J.L. & PUB. POL’Y 51, 61 (2003)
(“If the criminal law operates by guiding the conscious actions of persons capable of understanding the rules and
rationally applying them, it would be unfair and thus unjustified to punish and to inflict pain intentionally on those who
did not act intentionally or who were incapable of the minimum degree of rationality required for normatively
acceptable cooperative interaction.”).
313 See, e.g., Elonis v. United States, 575 U.S. 723, 734 (2015) (referencing, in a single paragraph, the terms criminal
intent, scienter, mens rea, and guilty mind); see also LAFAVE, supra note 5, at § 5.1 (describing mental part of crime as
“variously called mens rea (‘guilty mind’) or scienter or criminal intent”). At least one legal scholar has advocated for
(continued...)
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This section provides a brief introduction to select mental-state issues that are likely to be of
particular relevance in enacting, amending, or analyzing federal criminal legislation. Additional
analysis and detail may be found in CRS Report R46836, Mens Rea: An Overview of State-ofMind Requirements for Federal Criminal Offenses, by Michael A. Foster (2021).
Selecting a Mental-State Requirement
Where on a spectrum of mental culpability must someone fall to incur criminal liability, and what
terminology should be used to identify that point? At the federal level, selecting a mental state
that corresponds to a particular level of culpability is complicated by inconsistently interpreted,
nebulous, and sometimes-overlapping terms of art.314 To understand the development and current
status of federal mental-state requirements, it is useful to trace the common-law underpinnings of
such requirements and the treatment of mental states in the influential Model Penal Code (MPC).
Background on Mental-State Requirements at Common Law
As discussed, a crime traditionally has been understood to consist of the concurrence of both a
proscribed act (the actus reus) and a “guilty mind” (or mens rea).315 The concept of a mental
element—mens rea, scienter, state of mind, criminal intent, or an equivalent term—being
necessary for a prohibited act to be sufficiently blameworthy to justify criminal punishment has
endured for hundreds of years, if not longer.316 By the middle of the 20th century, the commonlaw development of particular state-of-mind requirements on a crime-by-crime basis (and their
inconsistent codification, in whole or in part, in state criminal codes) led to considerable disarray
and confusion.317
This confusion is perhaps best reflected in the development of the concepts of “general intent”
and “specific intent” as a shorthand way to describe the mens rea classifications of common-law
crimes. At a high level, many such offenses—for example, murder, battery, and larceny—can be
characterized as either “specific intent” or “general intent” crimes.318 In one formulation,
“specific intent” denotes an intent to “achieve some additional consequence” or “commit some
the use of the word fault as a more accurate descriptor of this element of criminal offenses. See id. (“The unadorned
word ‘fault’ is thus a more accurate word to describe what crimes generally require in addition to their physical
elements.”).
314 See infra “Federal Approach to Mental States.”
315 LAFAVE, supra note 5, at § 5.1.
316 See Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and
Present, 1993 UTAH L. REV. 635, 642 (1993) (tracing origins of a mental element in crime to “the earliest known legal
systems” but acknowledging that “systematic mens rea requirements” did not exist in Anglo-Saxon law “until at least
the thirteenth century”).
317 Morissette, 342 U.S. at 252 (“The unanimity with which [courts] have adhered to the central thought that
wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions
of the requisite but elusive mental element.”); See Treiman, supra note 194, at 284 (“Before 1960, most states had
criminal codes that were little more than statutory versions of the common law . . . . Each crime was defined in virtual
isolation from others and consequently, the meaning of terms would vary from crime to crime, with no attempt at
consistent definition . . . .”).
318 United States v. Bailey, 444 U.S. 394, 403 (1980); Robert Batey, Judicial Exploitation of Mens Rea Confusion, at
Common Law and Under the Model Penal Code, 18 GA. ST. L. REV. 341, 343–43 (2001). As discussed in more detail
infra, a third category of so-called regulatory or strict-liability offenses requires no culpable mental state at all. See
Morissette, 342 U.S. at 252–53 (acknowledging offenses “with very different antecedents and origins” that “depend on
no mental element but consist only of forbidden acts or omissions”).
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further act” beyond the commission of “the proscribed act.”319 For example, larceny likely would
be considered a specific intent crime, as it often requires obtaining control over the property of
another (the proscribed act) with the intent “to deprive the owner of the stolen property
permanently.”320 By contrast, in the words of one federal appellate court, “a general intent crime
requires only that the act was volitional (as opposed to accidental), and the defendant’s state of
mind is not otherwise relevant.”321 For instance, battery at common law “consisted of ‘the
unlawful application of force to the person of another,’ including an offensive touching.”322 This
crime would be considered a general intent crime, because it does not “require any specific intent
either to injure or to touch offensively, but rather only a more general intent to commit the
unlawful act” of applying force.323
Though the examples of larceny and battery might suggest relative clarity, delineation between
“specific intent” and “general intent” crimes in fact can be problematic due to inconsistent
usage324 and the inherently imprecise contours of these concepts.325 For example, a crime might
be considered a “general intent” crime because it does not require a specific mental state with
respect to some consequence or result beyond the proscribed act (as in the battery example), but
this does little to clarify the meaning of the mens rea requirement that the crime does have.
Though the definition of general intent given above distinguishes only between volition and
accident, the concept of intentionality has long been “slice[d] . . . more finely than accident versus
non-accident.”326
Exacerbating these definitional and line-drawing problems at common law was the proliferation
of different mens rea terms that often provided little clarity as to what sort of mental state was
actually required. “Terms such as willfully, corruptly, maliciously, feloniously, wrongfully,
unlawfully, wantonly, intentionally, purposely, with criminal negligence, and culpably” were all
used (among others), sometimes “to describe what was probably the same mental state,”
sometimes to describe different mental states, and often without “any further definition.”327 The
result was “seemingly infinite shades of meaning along [a] continuum upon which” the concepts
319 Eric A. Johnson, Understanding General and Specific Intent: Eight Things I Know for Sure, 13 OHIO ST. J. CRIM. L.
521, 525, 527 (2016); see also United States v. Lamott, 831 F.3d 1153, 1156 (9th Cir. 2016) (“In a crime requiring
‘specific intent,’ the government must prove that the defendant subjectively intended or desired the proscribed act or
result.”).
320 Johnson, supra note 319, at 525.
321 Lamott, 831 F.3d at 1156. Defining general intent solely in terms of volition is of dubious usefulness, as any crime
proscribing an affirmative act requires that the act be voluntary. See LAFAVE, supra note 5, at § 6.1(c) (“At all events, it
is clear that criminal liability requires that the activity in question be voluntary.”).
322 United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009) (quoting 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 16.2, at 552 (2d. ed. 2003)).
323 Id.
324 See United States v. Bailey, 444 U.S. 394, 403 (1980) (“Sometimes ‘general intent’ is used in the same way as
‘criminal intent’ to mean the general notion of mens rea, while ‘specific intent’ is taken to mean the mental state
required for a particular crime. Or, ‘general intent’ may be used to encompass all forms of the mental state requirement,
while ‘specific intent’ is limited to the one mental state of intent. Another possibility is that ‘general intent’ will be used
to characterize an intent to do something on an undetermined occasion, and ‘specific intent’ to denote an intent to do
that thing at a particular time and place.” (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON
CRIMINAL LAW 201–02 (1972))).
325 See CRS Report R46836, Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses, by
Michael A. Foster, at 3–5 (2021) (discussing scholarship on specific and general intent and explaining that
“Additionally, even classifying a crime as requiring either specific or general intent might not necessarily serve to
elucidate the requisite mental state in a meaningful way”).
326 Francis X. Shen & Morris B. Hoffman, et al., Sorting Guilty Minds, 86 N.Y.U. L. REV. 1306, 1310 (2011).
327 Treiman, supra note 194, at 284.
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of specific and general intent resided.328 It was in the context of this “variety, disparity, and
confusion of [judicial] definitions of the requisite but elusive mental element”329 that the drafters
of the MPC sought to establish “relatively clear definitions of mental requirements and relatively
straightforward rules regarding how to read these requirements into criminal statutes”330 through
what it termed general “culpability” rules.331
MPC Approach to Mental States
Many states have, in whole or part, supplanted “confused, vague, and inconsistent” approaches to
mental states drawn from the common law with the more systematic approach to state-of-mind
requirements found in the MPC’s “culpability” provisions.332 Federal courts also have looked to
MPC principles for guidance in interpreting federal law,333 notwithstanding the fact that federal
criminal statutory law (largely codified at Title 18) contains no uniform mens rea standards or
generally applicable definitions of mental-state terms (as discussed below).334
One of the MPC’s culpability provisions’ core achievements is eliminating the distinction
between specific and general intent offenses and “reduc[ing] nearly eighty miscellaneous
culpability terms to five carefully defined levels.”335 These levels have become a prevalent, if not
the predominant, prism through which courts view state-of-mind distinctions.336 The five MPC
levels of culpability are (1) purpose; (2) knowledge; (3) recklessness; (4) negligence; and (5)
strict liability.337 The MPC also clarifies the relationship between these different culpability levels
and the offense elements to which they apply by dividing elements into three categories: (1)
conduct; (2) attendant circumstances; and (3) results.338 The element categories are not defined,
328 Batey, supra note 318, at 341.
329 Morissette v. United States, 342 U.S. 246, 252 (1952).
330
Batey, supra note 318, at 401; see also Ronald L. Gainer, The Culpability Provisions of the Model Penal Code, 19
RUTGERS L.J. 575, 579 (1988) (explaining that the MPC drafters “were required to resolve an approach to culpability”
and “appeared to recognize that the fundamental need was clarity”).
331 MODEL PENAL CODE § 2.02 (AM. L. INST. 1985).
332 Treiman, supra note 194, at 284–85 (indicating that as of 1981, nearly two-thirds of states had revised their criminal
codes based on the MPC, and many revisions included the MPC’s section on culpability); see Paul H. Robinson &
Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 NEW CRIM. L. REV. 319, 326 (2007)
(identifying “thirty-four [state] enactments [that] were influenced in some part by the Model Penal Code”).
333 E.g., United States v. Bailey, 444 U.S. 394, 406 (1980) (looking to “[p]rinciples derived from common law as well
as precepts suggested by the” MPC to discern level of culpability); Voisine v. United States,
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