The big hurdle — “mens rea” — that could derail criminal justice reform

For the first time in decades, a bipartisan coalition in Congress has made strides towards reforming the criminal sentencing laws that have lead to skyrocketing incarceration rates, particularly among blacks and latinos.

But a pet cause of some corporate interests and Republicans may prevent the bipartisan coalition from actually achieving reform.

“Mens rea”

At issue is mens rea, the legal concept that an individual or corporation can’t be prosecuted for a crime unless they were aware that they were violating a statute of criminal law. Many, but not all, crimes already include mens rea requirements. But some Republicans in both the Senate and the House of Representatives want to make it the default for all federal criminal statutes.

Rep. Bob Goodlatte (R-VA), the chairman of the House Judiciary Committee, decides which criminal reform bills will advance and which ones will linger and die in committee. And according to Goodlatte, the bipartisan sentencing reform bill will not advance unless a mens rea bill goes along with it.

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte told a reporter for the Atlantic. “It has to be overcome. This is a critical element to doing justice in this country.”

That’s a problem for sentencing reform advocates because The White House, which could veto the final bill, is strongly against a universal change in federal mens rea standards. If the mens rea proposal became law:

“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, a killer could only be found guilty of certain firearm crimes if he knew the gun traveled in interstate commerce, and a white-collar criminal could only be found guilty of bank fraud if he knew he was robbing a bank that was FDIC-insured,”

an unnamed White House official told the Huffington Post. “In the President’s view, criminal justice reform should only make the system better, not worse.”

While they have not issued an official veto threat, the administration’s concerns with the bill make a later veto threat likely.

Where is the push for mens rea reform coming from?

According to Bob Goodlatte and Senator Orrin Hatch (R-UT), the main proponent of mens rea reform in the Senate, Congress has failed in recent years to enact clear mens rea provisions when enacting new federal crimes.

They point to cases where individuals have been prosecuted for doing things like:

• rescuing a woodpecker from their cat (in violation of the Migratory Birds Act), and
• bringing a skull discovered on a hunting trip to the U.S. forest service (removing an archeological artifact from federal lands).

But corporate interests have been pushing for the change in recent years as well. Prior to last year, federal lobbying on mens rea was rare, but in 2015 the U.S. Chamber of Commerce reported lobbying on issues related to mens rea in 10 separate lobbying disclosure reports. The Chamber did not report lobbying on the issue during any prior years.

Koch Industries, one of the largest privately held corporation in America, has submitted four lobbying reports since 2006 that list mens rea as an issue they lobbied on, the second highest amount among all organizations that report their lobbying activities, behind only the Chamber. They also disclosed lobbying on “issues related to unnecessary and excessive criminal provisions in Federal legislation” in several other reports, a topic that may have included discussions of mens rea.

What critics say

Critics of mens rea reform argue that it would make it more difficult for the government to prosecute white-collar crime for recklessness or negligence.

“If this proposal were to pass, it would provide cover for top-level executives, which is not something we think would be in the best interest of the American people,” Deputy U.S. Attorney General Sally Yates told NPR.

According to a report by the New York Times, Koch Industries became interested in mens rea reform after being charged in 2000 with violating the Clean Air Act by failing to install emission control devices on waste management units that were required by law.

While Koch Industries supports mens rea reform generally, after huddling with the White House in December, Koch’s general counsel, Mark Holden, has agreed that his company can support a criminal sentencing reform that does not include mens rea reform.

Where to from here?

The judiciary committees in both the House and the Senate have already voted to advance the bipartisan criminal sentencing legislation to the floor of their respective chambers. But in the House, the bill was passed in conjunction as a package of legislation with Rep. James Sensenbrenner’s (R-WI) bill to reform mens rea, the Criminal Code Improvement Act of 2015.

While House Judiciary Committee Chairman Bob Goodlatte says that the sentencing reform bill can’t be delinked from the mens rea reform bill, Senate Judiciary Chairman Sen. Chuck Grassley (R-IA) has doubled down on his opposition to the House’s mens rea bill, arguing it would give defendants a way to claim ignorance to escape convictions.

“Imposing a default standard for mens rea to thousands of existing crimes and elements of crimes would cause serious unintended consequences,” Grassley wrote in an op-ed for the Wall Street Journal. “It would create numerous new issues to litigate, and make obtaining pleas and convictions much harder in important cases.”

Ultimately though, how the criminal sentencing bill moves forward — with the mens rea bill or without it, or even at all — is up to Majority Leader Mitch McConnell (R-KY) in the Senate and Speaker Paul Ryan (R-WI) in the House.

Whether or not these bills are brought to the floor for votes, and how the votes shake out, will ultimately determine their fate, but the fact that the sentencing reform bill and the mens rea reform bill are still technically separate pieces of legislation in both chambers means that a clean criminal sentencing reform bill is still possible if Ryan and McConnell advocate for it.