In the opening essay, Professor Teles lays out the problems he sees in meaningful criminal justice reform because of infighting on the political right. For the most part, I agree with his analysis regarding the conflicts within the Republican coalition and the obstacles they presented up to this point in the 114th Congress. But that is not the whole story of why we don’t have a comprehensive federal bill in the imminent lame duck Congress. And the much larger problem—the American appetite for criminal punishment—is not something that neatly cuts down partisan lines at the federal or local levels.
In 2013, the House Judiciary Committee established an Overcriminalization Task Force. It was a bipartisan group that lacked the legal powers of an official subcommittee, but nevertheless held hearings to discuss pressing matters in the federal criminal justice system.
One of the early areas of agreement in the Task Force was the need for mens rea reform. For those unfamiliar with arcane Latin legal terms, mens rea is the ancient concept that for someone to be held accountable for a criminal act, they had to have a “guilty mind” or criminal intent. For example, if you accidentally pick up the wrong bag at the airport terminal, you should not be charged with theft because you made a mistake trying to retrieve your bag.
On the other side of the coin, for some crimes, legislatures have designated what are known as strict liability offenses. That is, whether or not a person knew he was committing a crime, the person is criminally liable for the act. A common variety of this is selling alcohol to an underage person or providing a firearm to a felon.
Finally, instead of either of these explicit instructions to guide prosecutions, Congress has failed to set any scienter requirements—that is, what level of knowledge is required for a person to be held criminally liable—in many of the myriad laws and regulations that carry criminal penalties.[i] An absence of clarity gives prosecutors a wide amount of latitude in whether to bring criminal charges for violations that a person didn’t know existed. To remedy the ambiguity, a default mens reaprovision was to be included in federal criminal justice reform to close the gaps where they exist. This provision would not preclude or override any strict liability laws or other explicit scienterrequirements already on the books. It would simply say that absent Congressional clarity, the courts should assume that criminal liability is commensurate with mens rea.
At some point between those hearings in 2013, in which Representatives Bobby Scott (D-VA) and John Conyers (D-MI) led other Democrats in calling for mens rea reform, and 2015, many Democrats and their allies turned against a default mens rea provision. Despite mens rea reform support from traditionally left-of-center organizations like the American Bar Association and the National Association of Criminal Defense Lawyers, the White House and others came out strongly against the provision. Even the executive director of the ACLU wrote a letter to the editor in the New York Times echoing that position. The fear, it seems, is that corporate wrongdoers will get away with environmental and other regulatory crimes if the government strengthens the scienterrequirements.[ii]
Read the rest at Cato Unbound.