In response to a rumor that he had passed away during a trip overseas, Samuel Clemens (better known as Mark Twain) responded, “The reports of my death are greatly exaggerated.”
The same could be said of criminal justice reform.
Last year, despite significant bipartisan support in Congress, criminal justice reform crashed on the shoals of an election year, the opioid crisis, and ongoing and escalating tensions between police officers and the communities they serve.
To its credit, Congress is not giving up. While the recent spikes in violent crime and the continuing opioid crisis are certainly causes for concern, Congress is right to consider whether there may be smarter, more efficient, more humane, and more cost-effective ways to address crime while at the same time enhancing public safety.
This is a principled piece of legislation that takes a scalpel-like, measured response to some of the excesses of mandatory minimum sentences that have resulted in disproportionate sentences being imposed on some low-level drug offenders who have modest criminal records, and who are the bottom of the totem pole of large-scale drug conspiracies.
The 2015 version of the bill also called for an inventory of federal criminal offenses, among other salutary measures.
Another criminal justice bill that died in the last Congress, but which may be reintroduced, is the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act.
Originally introduced by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.,—both former prosecutors—the bill would enhance public safety by directing the attorney general to develop a robust, scientifically sound, and statistically valid post-sentencing risk-and-needs assessment tool that incorporates both static and dynamic factors.
The bill would require all eligible offenders to undergo regular risk-and-needs assessments to determine whether they represent a low, moderate, or high risk of reoffending.
In addition, it would provide incentives to eligible offenders who participate in and successfully complete programs or engage in other productive activities that are designed to meet their particular needs, and which would decrease the likelihood that they would recidivate once released.
There is also the Mens Rea Reform Act of 2017. This bill, introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Sens. Mike Lee, R-Utah; Ted Cruz, R-Texas; David Perdue, R-Ga.; and Rand Paul, R-Ky., is designed to enact mens rea reform.
Mens rea is Latin for “guilty mind” and refers to criminal intent in a crime. Mens rea reform is a measure long supported by former Attorneys General Ed Meese and Michael Mukasey, and by Heritage scholars (see here, here, here, and here).
As one of us (John Malcolm) stated recently:
Proof of mens rea—a guilty mind—has traditionally been required to punish someone for a crime because intentional wrongdoing is more morally culpable than accidental wrongdoing; our justice system has usually been content to evaluate accidents that injure others as civil wrongs, but criminal punishment has been reserved for people who do bad acts on purpose. But that has changed as legislators and regulators have begun to see the criminal justice system, not as a forum for ascertaining moral blameworthiness and meting out punishment accordingly, but as just another tool in the technocratic toolbox for shaping society and preventing social harm.
Hatch, along with House Judiciary Chairman Bob Goodlatte, R-Va., deserves a lot of credit for keeping this issue on the front burner.
Mens rea reform is a matter of fundamental fairness. By having adequate mens rea standards, we ensure that moral blameworthiness is front and center in the criminal justice system.
In a press release, Hatch said that “[r]ampant and unfair overcriminalization in America calls for criminal justice reform, which starts with default mens rea legislation.”
Lee said, “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law.”
And Cruz added that mens rea reform “needs to be enacted to protect the rights of all Americans.”
While this should be a nonpartisan issue, some Democratic legislators have criticized mens rea reform, characterizing it as solely a tool for the wealthy and powerful to evade responsibility for criminal acts.
For example, Whitehouse told RealClearPolitics that mens rea reform is merely a “corporate protection” scheme.
This is not true. The Supreme Court has recognized that the lack of adequate—or in some cases, any—mens rea standards can pose problems in distinctly “blue collar” criminal cases too.
Some people or entities intentionally pollute our air and water, or deliberately engage in other conduct knowing that there is a substantial risk that it will cause harm, and in those cases, criminal prosecution is entirely appropriate.
But it is also inevitable that bad outcomes will occur from time to time by sheer accident and by unwitting or negligent acts.
The intent of the actor should make a difference in whether he is criminally prosecuted or is dealt with through the civil or administrative justice systems. We should not be so cavalier about labeling anyone a criminal—with all of the collateral consequences that flow from that—when they unwittingly do something that causes harm.
After all, as Justice Oliver Wendell Holmes Jr. once observed, “Even a dog distinguishes between being stumbled over and being kicked.”
Restoring moral blameworthiness to greater prominence in our criminal laws will revitalize our criminal justice system and preserve its moral authority, which, in turn, will engender respect for the rule of law.
Congress deserves a lot of credit for pursuing criminal justice reform. These are serious issues that should be debated in a full and frank manner, with everyone keeping an open mind throughout the process.
This is not an issue where Congress should be leading from behind. Let the debate begin.