Law & the Courts

On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility


In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas.

Without White House involvement, criminal-justice reformers have made significant bipartisan progress toward achieving some potentially positive changes to our current system. In May 2013, the House Judiciary Committee launched a bipartisan task force on over-criminalization. Bobby Scott, the ranking Democrat on the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, noted that “there are now over 4,000 federal criminal provisions, plus hundreds of thousands of federal regulations which impose criminal penalties, often without requiring that criminal intent be shown to establish guilt.”

On November 17, the task force released four bills addressing these concerns. One of them removed some criminal penalties from the books, one ensured that individuals who unknowingly violated a federal statute or regulation could be held criminally liable only if Congress expressly said so, one required federal agencies to report to Congress on their regulations that had criminal penalties, and one cleaned up footnotes and drafting errors in the federal code.

On the next day, the four bills — as well as a sentencing-reform bill supported by the president — sailed through committee, with unanimous support. Also on November 18, Senator Orrin Hatch (R., Utah) introduced his own criminal-justice reform bill, which paralleled, but differed in some respects from, the task-force bill on criminal intent, or “mens rea.” These bills would protect unknowing wrongdoers from going to jail for violating statutes in which Congress was silent as to whether individuals could be held strictly liable for the conduct in question.

Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”

The bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor.

These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.” To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets. But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.

In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor. It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.

Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.

The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.

If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.


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