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February 12, 2016

"A Republican Crime Proposal That Democrats Should Back"

The title of this post is the headline of this New York Times op-ed authored by Gideon Yaffe discussing federal mens rea reform.  Here are excerpts:

These days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind.  That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.

As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be.  Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it.  Ordinary citizens may assume that this common-sense requirement is already the law of the land.  And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it.  But over the years, exceptions to the principle have become common because mens rea requirements have not been consistently detailed in laws....

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling.  The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes.  Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm.  Their opposition is a major stumbling block to passage of the larger bill.  But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people....

The Justice Department opposes the proposed mens rea measure on the ground that it would have prevented convictions of corporate executives whose products caused harm.  But it is entirely possible that the government could have proven mens rea had it been required to try.  Furthermore, criminal conviction is not the only way to make corporations pay for their harms: Tort liabilities and civil penalties are not constrained by mens rea requirements.  Senator Patrick Leahy, Democrat of Vermont, opposes strengthening mens rea requirements across the board, arguing that each problematic statute should be revised individually.  But it would take years to revamp thousands of laws....

The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted.  Ohio and Michigan have already passed mens rea reform laws.  And in the wake of federal legislation, other states, including New York, would likely follow their lead.

Democrats should push for even more sweeping changes to unjust “felony murder” laws, which permit murder convictions for anyone participating in a felony in which someone dies, even if no one involved could have been expected to foresee that happening.  We know that adolescents are far less aware than adults of the risks their conduct involves, but since felony murder does not require proof of mens rea, adolescent defendants can’t offer evidence of their distorted perceptions of risk.

For liberals, the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime — or even stopped by the police — without evidence of a criminal state of mind.

Some recent and older related posts:

February 12, 2016 at 04:40 PM | Permalink


Off topic. I just thought I would state that I enjoy the blog here and appreciate the work of the author and the people who comment. Often I am simply flippant but I do not mean to offend and do enjoy what I learn here.

Posted by: Liberty1st | Feb 12, 2016 11:04:26 PM

"a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling"

This isn't the sort of thing that I think is up there in respect to federal criminal law problems and it highlights just the sort of thing Democrats would be worried about. Mislabeling drugs would be one of the easiest cases to make where "knowing mislabeling" might in certain cases make it hard to penalize those who do not provide enough care in the commercial sector.

Also, having LESS means of dealing with corporate wrongdoing is not a great selling point to Democrats and others too when people of various ideological sentiments are upset at the power of big money.

The felony murder issue is quite different from this sort of thing and adolescents in particular clearly a special case as would other groups of defenders who might have some mitigating factor.

Posted by: Joe | Feb 13, 2016 10:20:42 AM

Strict liability offenses, which don't require mens rea, have a long history as being important to protect the public. Executives can have willful blindness to harms that hurt workers, consumers and communities. In this day and age, structured unaccountability is standard operating procedure for many corporations, and this means rea "reform" plays into their hands.

Posted by: Paul | Feb 13, 2016 10:29:49 AM

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