November 26, 2015
So thankful for federal sentencing reform moving ahead in Congress... but...
this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President. The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts. Here are excerpts:
For more than a year, a rare coalition of liberal groups and libertarianminded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war. That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are wellknown conservative billionaires.
Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other whitecollar criminals.
The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.
Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws. Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.
If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.
The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills. Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system. Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing. Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were cosponsors of the bill.
Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.” But he said he was committed to finding a way to address the Justice Department’s concern....
“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration. He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions. “It is an unfair and unwarranted characterization,” he added.
Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said. If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)
November 26, 2015 at 09:13 AM | Permalink
I finally got a chance to look at the amended version of this legislation and it is actually a dud. It removed most of what we would reconsider reform. Besides knocking down some sentences just a tad -- it introduces a whole new bunch of mandatory minimums and it removed a crucial component that was contained in section 211: expungement of convictions for young adults. The original draft version permitted those young adults with federal criminal convictions before the age of 21 to apply for expungement. The new version limits it to those with juvenile convictions before the age of 18, thus, narrowing the field to just a few dozen to few hundred potential petitioners. This is incredibly disappointing. All in all, there is nothing to be thankful about in any of the sentencing reform legislation.
Posted by: An attorney | Nov 30, 2015 2:59:48 PM