- - Thursday, February 18, 2016


Any workable criminal justice system requires justice as well as punishment, and the American system requires reform, and a lot of it. Justice has retreated, leaving only the crime. Nearly everyone, Democrat and Republican, understands that, and reform legislation is working now through both the House and the Senate. The system now costs too much and produces too little that’s good.

The United States imprisons more men and women than any other country, including Russia and China. In some states the cost of the prison system approaches that of spending on education, neither prisons nor schools offering a reasonable return on the money spent. Many of the people who are locked up are not a threat to anyone, and they return to society angry, bitter and on their way back to prison from the moment they walk out the prison gates. In some states more than half of them will be back within a year or two.

Harsh and ineffective drug laws often punish recreational drug users who are a threat to no one but themselves — and they do indeed threaten great harm to themselves — but to treat them as if they are bank robbers, terrorists, or child molesters is nothing short of abuse. Mandatory minimum sentences, once thought to be the cure-all of crime, can put the barely guilty away for years for minor violations of the law.

Worse, men and women are going to prison to punish crimes that make no sense. Often the guilty are convicted of crimes they didn’t know were crimes, and had no intention of breaking. Law enforcement agencies spend time and resources that could be used elsewhere to enforce such laws.

Some crimes are clearly crimes — murder, rape, robbery, embezzling, stealing — and everybody knows they’re crimes. These are crimes committed with a “guilty mind” or, in Latin, called “mens rea.” Before a prosecutor, judge and jury sends someone to prison, the state has an obligation to prove that the guilty person knew or should have known that what he did was against the law, and he did the deed, anyway.

There are more than 4,500 federal laws and regulations that carry prison sentences for violators, and it’s virtually impossible for the average person — and probably some Philadelphia lawyers, too — to know that. Sen. Orrin Hatch of Utah, a Republican and a former chairman of the Senate Judiciary Committee, insists that reform has to include a requirement that a “guilty mind” be proved as a condition for sending an offender to prison.

Mr. Hatch vows to fight for this requirement and says if Congress enacts reforms that don’t go that far the opportunity to make real reforms will have been lost. This is that bipartisan problem that Republicans and Democrats together can fix.

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