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January 13, 2016

Might misguided mens rea reform concerns derail federal sentencing reform's momentum?

The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge."  Here is how the article starts:

The stars seem to have aligned.  An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.

Even with that common ground, however, tensions are bubbling up.  A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system.  That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event.  The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision.  “It has to be overcome.  This is a critical element to doing justice in this country.”

The disagreement points to the possibility that negotiations will break down.  It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise.  The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.

At stake is a question of fairness.  Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity.  Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.

That conflict could derail sentencing reform.  Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.

As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country."  Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.

Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform.  Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries.  Blah. 

Some recent and older related posts:

January 13, 2016 at 01:55 PM | Permalink


I think this horrible story will hurt more:


Posted by: federalist | Jan 13, 2016 9:31:00 PM

I have addressed the mens rea many times.

A Latin phrase, the language used only one place, in church. Supernatural power. Impossible to do. Copied, word for word, from the analysis of mortal sin in the Catechism at Paragraph 1857. Violation of the Establishment Clause by its supernatural state and copying from a religious text.

We have often reviewed the worthless nature of eyewitness testimony. We have demanded that it be verified by physical evidence, especially in death penalty cases. Most exonerations have come from refutation of witness testimony by DNA technology.

Now we are not just into false memories of physical events by witnesses. We are into testimony about internal motivations by drunk people, with no recall of the crime themselves in half the cases.

Posted by: Supremacy Claus | Jan 14, 2016 9:04:20 AM

On Jan. 6, the White House organized a briefing at the OEOB to mobilize its allies to support its sentencing reform agenda. The White House staff raised the obstacle of mens rea reform. They said that enacting a default standard of "knowing" would be utterly unacceptable.
My recollection is that in the proposed revision of title 18, U.S.C. (Criminal Code), reported in 1980 by the House Judiciary Committee (then controlled by Democrats) the legislation proposed that, "in the absence of language to the contrary, a knowing state of mind will be required for conduct, results and circumstances. This comports with the usual interpretations of the general intent requirement of current law." (H. Report 96-1396, p. 35, Sept. 25, 1980 to accompany H.R. 6915, 96th Cong.).

The White House identified a couple of crimes that it felt needed a different state of mind. Surely the Administration could identify those offenses and include specific amendments in the mens rea legislation.

I suspect that many career bureaucrats in federal prosecutorial agencies don't want sentencing reform, and they have latched onto this issue, exaggerated its importance, and will try to use it to scuttle the bipartisan reform.

Posted by: Eric Sterling | Jan 14, 2016 11:00:08 AM

"Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal."

Mens rea reform wouldn't do this. Very few crimes require knowledge that the acts were illegal (e.g., anti-kickback statutes); rather it's knowledge of the act.

Posted by: federalist | Jan 14, 2016 12:26:39 PM

Lack of knowledge of the million laws and regulations on the books is not an accepted excuse to crime. That is why each of us is guilty of three federal falonies a day.

Mens rea refers to intent and knowledge of what the defendant was doing in the actus reus, in the criminal and harmful act.

Posted by: Supremacy Claus | Jan 14, 2016 11:36:13 PM

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