A fight in the Senate over whether to make it harder for government prosecutors to prove criminal intent is threatening to block the bipartisan goal of passing criminal justice reform.
At issue is the concept of “mens rea,” or the mental state of a defendant. Under current law, prosecutors in many cases must show defendants knew their conduct was a violation of the law before they can be charged.
According to some estimates, there are nearly 5,000 federal criminal statutes throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses in the Code of Federal Regulations. Many of them lack mens rea standards, which Republicans in particular say can allow innocent mistakes or accidents to be treated as crimes.
Republicans have been pushing to expand the kinds of cases for which prosecutors must show that the defendant was aware he or she was breaking the law by proposing the creation of a federal mens rea standard. This new standard could be used in cases where the standard doesn’t exist or isn’t clear as so to protect everyday Americans from unknowingly breaking laws.
A bill put forth by Sen. Orrin Hatch, R-Utah, dubbed the Mens Rea Reform Act of 2015, expands the types of crimes for which prosecutors would have to show defendants knew their conduct was breaking criminal law.
And in the House, Rep. Jim Sensenbrenner, R-Wis., has made a similar legislative proposal. His bill says that, “If the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.”
House Judiciary Committee Chairman Bob Goodlatte, R-Va., supports that bill, and he and Hatch have said an expanded mens rea bill is needed to protect people all over the country.
“Our bills say that in situations in which a federal criminal law fails to provide a clear standard of criminal intent, a default standard will apply. The purpose of the bills is to ensure that Congress does not erode the important protections criminal intent requirements provide. Criminal intent requirements ensure that honest, hard-working Americans do not become criminals because they accidentally do something unlawful or violate an obscure law,” Goodlatte and Hatch wrote in a joint op-ed published Wednesday.
Goodlatte also warned that until some agreement is reached on mens rea, criminal justice reform is impossible. “I think a deal that does not address this issue [mens rea] is not going anywhere in the House of Representatives,” he said in a panel this month.
“The mens rea provision within the Criminal Code Improvement Act is an essential component of criminal justice reform because it protects honest Americans and small businesses who unknowingly commit violations that no reasonable person would think was a crime,” Sensenbrenner told the Washington Examiner in a statement about mens rea reform. “In addition, the legislation will improve our current standards and reduce our bloated criminal code, creating increased transparency, fairness and accountability within our justice system.”
But not everyone agrees. Some Democrats see it as an attempt by Republicans to make it harder for prosecutors to bring charges against companies.
Sen. Patrick Leahy of Vermont, the top Democrat on the Senate Judiciary Committee told his Senate colleagues: “All of this progress is now at risk because some are demanding sweeping changes that would make it harder to hold corporations accountable when they sell food that sickens consumers, endangers workers or poisons our water supply.”
The Justice Department opposes adding mens rea to the criminal justice reform bills sitting in the House and Senate Judiciary committees, as does the White House.
“There is no need for a sweeping, one-size-fits-all, default mens rea,” Leslie Caldwell, assistant attorney general for the DOJ’s Criminal Division, told the Senate panel Wednesday. “The vast majority of federal criminal statutes already require the government to prove beyond a reasonable doubt some level of mens rea for at least one or more elements of the crime — whether expressly, or as a matter of binding judicial precedent.”
The changes Hatch’s bill would have on federal law would be “broad and bad,” Caldwell reiterated, adding the DOJ supports the proposal in the Sentencing Reform act that “would require a review of existing federal laws on a case by case basis” and move from there.
According to Caldwell, the proposed mens rea reform bill would not only make prosecuting top corporate criminals harder than it is now, but it would also make prosecuting child pornographers more difficult, among other challenges.
Even some Republicans are wary of a change. Sen. John Cornyn of Texas, the majority whip, is concerned what the focus and subsequent bill on mens rea reform could do, and indicated he doesn’t want the criminal justice reform bill to be stalled by the mens rea debate.
“I worry that if we begin to add additional things to that legislation, it is going to weigh it down to the point where we will not be able to pass anything this year,” Cornyn said at Wednesday’s hearing, citing a “small window of opportunity” to pass bipartisan criminal justice reform.
Todd Cox, Senior Fellow at the Center for American Progress, says the Sensenbrenner bill goes about addressing mens rea in a way that will do more harm then good.
The proposed mens rea reforms in the Criminal Code Improvement Act is “a blanket approach that would have very serious implications for our ability to enforce the bedrock regulatory safeguards,” Cox told the Washington Examiner.
The Senate Judiciary Committee has already passed bipartisan criminal justice reform legislation that reduces mandatory minimum sentences for nonviolent drug offenses and reduce prison terms in an effort to reduce recidivism, among other things. The Sentencing Reform Corrections Act was approved in late October in a 15-5 vote and has garnered strong support from President Obama, and doesn’t include a mens rea standard.
None of the criminal justice reform bills in either the Senate or House Judiciary Committees have been brought to the floor for votes.
