Notable GOP Senators talk up mens rea reform while FIRST STEP Act and SRCA languish in their chamber

Senators Chuck Grassley and Orrin Hatch have this notable new commentary in the Washington Examiner under the headline "Mens rea reform and the criminal justice reform constellation." Here are excerpts:

A growing chorus of voices from across the country and political spectrum are calling out for reforms to our nation’s criminal justice system, and rightfully so.  Our criminal justice system should be tough but fair.  Criminal behavior should be punished, but the punishment should fit the crime. And those we send to prison should be afforded opportunities to participate in programs that prepare them to rejoin society when they complete their sentences.

As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization.  There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count.  And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation.  We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.

Fairness and justice demand that we clarify our criminal laws.  Statutes and regulations that impose criminal penalties should be clearly written so they prevent and punish criminal conduct even as they the safeguard the liberty of the innocent.  That’s why it is important that Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve introduced, to improve clarity in existing criminal laws and regulations and encourage greater care when crafting future ones.

Our bill recognizes that the mens rea standard that works for one crime might not be appropriate for another.  It improves on past proposals to impose a one-size-fits-all mens rea standard to all laws and regulations that lack such clarity.  Instead, it empowers Congress and federal agencies to fill in the gaps with the appropriate level of intent required to constitute a crime.  The bill calls on the federal government to identify the criminal statutes and regulations that lack a mens rea requirement.  This will allow Congress to clarify the mens rea standard in criminal statutes through the legislative process.  The bill then directs federal agencies to put in place a clear mens rea standard for all regulatory crimes through a transparent process that invites public input on what the appropriate mens rea standard should be. Under our bill, agencies have six years to issue new rules to clarify the required level of intent. If the agencies don’t offer this clarification, they won’t be able to enforce the regulation....

We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape.  Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.

While I share the Senators affinity for mens rea reform, at this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act.  One would hope that the current chair of the Senate Judiciary Committee (Grassley) and a powerful former chair (Hatch) could actually help get some legislation enacted, but the mysteries of government continue to mysterious prevent the passage of legislation that has widespread support in both houses of Congress.

It has now been nearly two months since the FIRST STEP passed the House by a huge margin (details here) and it has now been more than five months since the SRCA passed the Senate Judiciary Committee by a significant margin (details here). Prez Trump has suggested he will sign whatever bill gets delivered to his desk.  But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon. Sigh.