During last year’s stalled bipartisan effort on criminal-justice reform, one of the complications that arose was strong Republican interest in, and Democratic antipathy toward, an obscure topic in criminal law called mens rea reform.
Establishing mens rea, a Latin term usually translated as “guilty mind,” means proving criminal intent (including knowledge of an act’s illegality) in federal statutes carrying criminal penalties. Libertarians, in general, strongly believe that conviction for federal crimes should require establishment of mens rea unless the law otherwise specifies is a big and abiding deal for libertarians generally.
But it’s an even bigger deal for business-oriented libertarians and their Republican allies because of their fear that those who run afoul of corporate regulations might inadvertently find themselves in the hoosegow instead of just having to pay some annoying fine or change some company practice. And several key right-of-center supporters of criminal-justice reform (notably the Heritage Foundation and the Koch Brothers) have made it plain some sort of new mens rea statute is the price they will exact for continued efforts on behalf of the sentencing reforms and decarceration measures most liberals want.
Such demands are running up against serious Democratic resistance:
Democratic lawmakers and liberal activists are deeply critical of this effort, calling it a quiet attempt to make it ever more difficult for the federal government to prosecute corporations and their executives for crimes against the public welfare.
Last year Democratic and Republican supporters of criminal-justice reform agreed to set aside their differences on mens rea in order to get a sentencing-reform bill to the Senate floor, leaving the House to deal with it before the final bill was crafted. But Mitch McConnell deep-sixed effort because it conflicted with the law-and-order rhetoric of Donald Trump and his closest congressional allies (including criminal-justice reform nemesis Jeff Sessions).
With Trump now ensconced in the White House and Sessions frying other fish as attorney general, supporters of criminal-justice reform are trying to push the rock back up the hill. This time mens rea reform proponents have gone out of their way to enlist the support of left-leaning criminal-defense attorneys. But Democratic senators aren’t going along, as Matt Ford notes:
Rhode Island Senator Sheldon Whitehouse, a member of the Judiciary Committee, told me earlier this week that he wouldn’t support a sentencing-reform bill if it included the change to mens rea. “It would turn me into a warrior against it,” he emphasized. Chuck Schumer, the Democratic leader in the Senate, would also oppose such a bill, a spokesman confirmed.
It’s possible Senate Republicans will again relent on mens rea reform in hopes that the House will carry it through, and it’s also possible some formula on mens rea can be devised that Democrats won’t find objectionable:
Some Democrats indicated they’d be open to a more limited approach on intent standards. The office of Vermont Senator Patrick Leahy, another Democrat on the Judiciary Committee, said any mens rea reform would need to be narrowly tailored, not comprehensive and retroactive. Whitehouse said he’d be willing to discuss a version that focused on “crimes in which an individual human defendant was the target,” but that other senators hadn’t taken him up on the offer yet.
At the moment, some sort of reckoning on this issue remains an obstacle to broader progress on criminal-justice reform. At any moment, of course, Trump and Sessions could once again stomp on any delicate compromise and kill off criminal-justice reform entirely, and with it an extremely rare opportunity for bipartisan legislation. And with all the work that has gone into this issue, if the administration gets in the way there will be no doubt of its bad intent and guilty mind.