- - Monday, May 2, 2016

ANALYSIS/OPINION:

Last fall, a group of senators introduced legislation to reduce prison sentences for various drug and firearm offenses and to enable prisoners to earn credit toward early release. Almost immediately, the bill ran into opposition from critics who worried it would let dangerous criminals out of jail and reverse the decades-long nationwide drop in crime.

On Thursday, the bill’s sponsors announced a series of revisions, intended to win over skeptics, that they claim address such concerns. Although some of these changes represent an improvement, they completely ignore the bill’s most glaring problem — the lack of any meaningful provision to address the deterioration of intent requirements in our criminal laws and regulations.

Criminal intent requirements, also called mens rea (Latin for “guilty mind”) requirements, require prosecutors to prove that a defendant acted with some degree of mental culpability. They prevent everyday Americans from becoming accidental criminals by unwittingly breaking the law or doing something no reasonable person would know was wrong. Regrettably, in recent years Congress and federal agencies have neglected such requirements and created thousands of crimes that require no proof of criminal intent or that are unclear as to what level of intent, if any, is necessary.

Strengthening mens rea protections has long been a priority for conservatives. Nearly a decade ago, scholars at the Heritage Foundation and the Federalist Society noted how the deterioration of criminal intent requirements threatens individual liberty. At least for a time, many liberals agreed. In 2013, the House of Representatives convened hearings at which Republicans and Democrats alike expressed concern about the absence of meaningful mens rea protections in much of our criminal code. The American Civil Liberties Union, the National Association of Criminal Defense Lawyers and other traditionally liberal groups authored reports with similar sentiments.

Largely as a culmination of these efforts, members in both the House and Senate introduced legislation last fall to set a default intent standard for all criminal laws and regulations that fail to specify such a requirement. Such a default would help protect individuals from being criminally prosecuted for accidental conduct or for doing things that shouldn’t be a crime in the first place.

Unfortunately, in the months after this legislation was introduced, what had been a broad-based consensus in favor of strengthening mens rea protections frayed. Liberal groups and their allies in Congress — whose priority has always been sentencing reform — began arguing that a default criminal intent standard would benefit corporate executives and give businesses greater opportunity to pollute the environment. According to these newly converted critics, the entire mens rea effort was really just a corporate giveaway.

One progressive senator, for instance, called the legislation “shameful” and suggested its primary purpose was to benefit white collar criminals; another compared it to a “Trojan horse” and insinuated that some groups were using criminal justice reform as a way to snooker Democrats into accepting provisions designed to make corporate prosecutions more difficult.

Of course, this rhetoric misrepresents reality. To begin with, these critics ignore that the default intent standard would apply only in situations where Congress has failed to specify any criminal intent whatsoever. Many of our most important environmental and public welfare statutes contain clear mens rea standards, meaning the legislation wouldn’t apply to them at all. And even where Congress has failed to specify the intent required for conviction, nothing prevents Congress from clarifying that it intended to create a strict liability crime. Indeed, those who support mens rea reform hope it will spur Congress to revisit sloppily drafted criminal laws and better identify the conduct it intended to proscribe.

Mens rea reform is not some sop to the corporate class, and it does not deserve to be caricatured as such. It is a principled response to a growing problem — the increasing criminalization of conduct that an average person would not know is wrong. Many of our modern criminal laws proscribe conduct that is not inherently bad, such as transporting water hyacinths or walking a dog on a leash longer than six feet. Such laws can easily ensnare individuals from all walks of life who have better things to do than memorize the tens of thousands of prohibitions littered throughout our criminal code.

Unfortunately, the revised criminal justice bill circulated by a group of reform-minded senators still contains no default criminal intent provision. For this reason alone, it remains a bad deal. The bill prioritizes the release of drug traffickers and smugglers over reforms to protect innocent individuals who should not be prosecuted in the first place. Much of the bill is a liberal wish list — the sort of legislation you would expect a Democratic, not a Republican, Congress to produce. That progressive activists support the Senate bill as is and oppose efforts to add meaningful mens rea protections should make clear what a raw deal the bill is for conservatives. Congress, and conservatives, can do better.

Orrin Hatch, a Utah Republican, is president pro tempore of the U.S. Senate.

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