Criminal justice reform is one of the few legislative issues that could move forward in this highly partisan election year. But this long-awaited reform is in serious danger because of efforts by big corporations and their allies to include a "get-out-of-jail-free" card for white collar offenders. A few members of Congress are insisting that so-called "mens rea reform legislation" be included in the bipartisan criminal justice reform bills that have been painstakingly negotiated in the House and Senate.
If we were to open these bills up to include other issues, there are plenty of items Democrats and Republicans would like to raise. Insisting on adding mens rea is a poison pill that threatens this long-term, bipartisan effort to reduce the prison population, prevent recidivism, and protect public safety.
Mens rea is a Latin term meaning "guilty mind" and in our legal system it represents the criminal intent or state of mind that a person must have in order to be held guilty of a crime. Of course, it is well-established in the American justice system that ignorance of the law is no excuse for breaking it. But supporters of mens rea legislation claim that many innocent Americans are being sent to jail for actions that a reasonable person wouldn't know were wrong.
Mens rea advocates cite a few prosecutions to justify their argument. But a few cases don't constitute a crisis, and in fact most of these cases were later dismissed or overturned
When you look closely at the specific cases highlighted to argue for reform, the details often don't live up to the hype. For instance, advocates have frequently pointed to the case of race-car driver Bobby Unser. Former Attorney General Ed Meese said at a recent Senate hearing that in 1996, Mr. Unser was "criminally prosecuted for wandering into federal land during a blizzard that nearly took his life." In fact, multiple courts found that Mr. Unser rode his snowmobile into a federal wilderness area for recreational purposes and that maps of the area were widely available. He was fined only $75 and not given a jail sentence.
If the cause of mens rea reform were so compelling, you would think advocates could offer more recent examples that involve more dramatic consequences than a small fine and no jail time for a well-to-do celebrity.
And rather than propose a solution targeted at the specific statutes they believe should be reformed, the corporate backers of these provisions have proposed a change that would institute a mens rea requirement across the criminal code, even where Congress intentionally did not include one.
The benefits of such a mandate are questionable, but the harm caused by the proposed mens rea reform legislation would be dramatic. By raising a new defense against corporate accountability, it would make it much harder to prosecute corporate crimes that endanger the environment or the health of consumers. For instance, a white-collar criminal could only be found guilty of bank fraud if he knew he was robbing a bank that was FDIC-insured. And it would be much harder to prosecute individuals that sell adulterated food or drugs, because prosecutors would have to prove the defendants knew that their actions would result in harm.
The Justice Department recently prosecuted Jensen Farms for selling cantaloupe contaminated with Listeria, which resulted in at least 33 deaths and 147 hospitalizations. This prosecution may well have been impossible if the mens rea bill had been law.
The harm would extend beyond corporate criminals as well. It would also make it much harder for the Justice Department to prosecute serious crimes like the obstruction of a sex trafficking investigation, failure to report child abuse, and child pornography. In one version of the legislation, a terrorist could only be found guilty for using a weapon of mass destruction if he specifically knew his victims were going to be U.S. nationals.
These are some of the reasons why mens rea legislation is strongly opposed by the Justice Department and law-enforcement groups like the Fraternal Order of Police, the National District Attorneys Association, and the Major Cities Police Chiefs Association; as well as civil-rights and consumer-protection groups like the Leadership Conference for Civil and Human Rights and Public Citizen.
For the first time in a generation, meaningful sentencing and corrections reform is within reach. The American people overwhelmingly support reducing our prison population. Bipartisan proposals in the Senate and House are making progress and President Obama strongly supports the efforts. These reforms will make our criminal justice system more humane and effective. Let's not let a last-minute and misguided proposal on mens rea stand in our way.