Senate Seeks Path Through Criminal-Justice Minefield

Lawmakers are negotiating over an issue that could hold the key to compromise—or blow up a delicate bipartisan balance.

Sen. Chuck Grassley
AP Photo/J. Scott Applewhite
Ben Geman
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Ben Geman
Jan. 19, 2016, 8:49 p.m.

Crim­in­al-justice re­form, so the the­ory goes, is one of the few areas where Con­gress could reach a bi­par­tis­an deal in 2016. That the­ory however, is about to be tested.

A Sen­ate pan­el is diving in­to one of the most con­tro­ver­sial parts of crim­in­al-justice re­form Wed­nes­day, in a hear­ing that should provide clues about wheth­er a com­prom­ise is pos­sible.

The Ju­di­ciary Com­mit­tee will ex­plore ef­forts to ex­pand the types of crimes for which pro­sec­utors must show that de­fend­ants knew their con­duct was il­leg­al, a top­ic known as “mens rea” (or “guilty mind”).

The pub­lic hear­ing on the “ad­equacy of crim­in­al in­tent stand­ards in fed­er­al pro­sec­u­tions” will un­fold amid private Cap­it­ol Hill ne­go­ti­ations over the top­ic, which could af­fect pro­sec­u­tion of white-col­lar and cor­por­ate crime.

It’s a stick­ing point in what’s already an un­cer­tain ef­fort to re­form crim­in­al-justice policy, one of the few areas where a deal between the White House and Cap­it­ol Hill re­mains an elec­tion-year pos­sib­il­ity.

Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell has not yet agreed to bring le­gis­la­tion to the floor, but his coun­ter­part, House Speak­er Paul Ry­an, has been open about want­ing it on this year’s agenda, and Pres­id­ent Obama also ex­pressed hope in last week’s State of the Uni­on speech.

The Ju­di­ciary Com­mit­tee already cleared bi­par­tis­an crim­in­al-justice-re­form le­gis­la­tion last fall that would ease harsh man­dat­ory-min­im­um sen­tences for cer­tain non­vi­ol­ent drug of­fenses, and re­duce pris­on terms of some in­mates who take part in pro­grams that cut risk of re­cidiv­ism. But it does not ex­pand mens rea.

Le­gis­la­tion has also cleared a com­mit­tee in the House. But House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte has drawn a line in the sand by ar­guing that any crim­in­al-justice pack­age must also in­clude mens rea pro­vi­sions to gain trac­tion.

The col­lec­tion of crim­in­al-justice bills ap­proved by Good­latte’s com­mit­tee with bi­par­tis­an back­ing in­clude one meas­ure with this lan­guage: “If the of­fense con­sists of con­duct that a reas­on­able per­son in the same or sim­il­ar cir­cum­stances would not know, or would not have reas­on to be­lieve, was un­law­ful, the Gov­ern­ment must prove that the de­fend­ant knew, or had reas­on to be­lieve, the con­duct was un­law­ful.”

Polit­ic­al di­vides over the is­sue threaten to un­ravel the bi­par­tis­an re­form push. But Sen. Dick Durbin, the Sen­ate’s No. 2 Demo­crat and a co­spon­sor of the bi­par­tis­an sen­ten­cing-re­form bill, said ne­go­ti­ations are on­go­ing.

“Chair­man Good­latte has staked [out] his po­s­i­tion that it needs to be in­cluded; many of us feel on our side that it com­plic­ates the bill and it should be con­sidered sep­ar­ately. I hope we can find some com­mon ground,” Durbin told re­port­ers in the Cap­it­ol Tues­day even­ing. “We haven’t reached an agree­ment yet.

“These ne­go­ti­ations star­ted weeks ago when the pres­id­ent called us all in the White House and the at­tor­ney gen­er­al agreed to work with Chair­man Good­latte and Demo­crats as well on try­ing to find something that we can both agree on,” Durbin ad­ded, re­fer­ring to a meet­ing Obama hos­ted in early Decem­ber with law­makers work­ing on the is­sue.

A spokes­wo­man for Ry­an de­murred when asked about mens rea. “Speak­er Ry­an per­son­ally be­lieves that we should take a hard look at re­form­ing our crim­in­al-justice sys­tem, but ul­ti­mately, it will be up to the con­fer­ence to de­cide the path for­ward,” said spokes­wo­man Ash­Lee Strong.

Find­ing a com­prom­ise on mens rea could be dif­fi­cult.

A num­ber of Demo­crats and pro­gress­ive act­iv­ists fear that mens rea would sap pro­sec­utors’ power to tackle white-col­lar crimes on fin­an­cial fraud, en­vir­on­ment­al and work­er pro­tec­tions, food safety, and more.

The group Pub­lic Cit­izen, whose pres­id­ent Robert Weiss­man will testi­fy Wed­nes­day, re­leased a state­ment on the eve of the hear­ing warn­ing that “cor­por­ate in­terests are at­tempt­ing to add meas­ures to the re­form le­gis­la­tion that would make it much harder to pro­sec­ute com­pan­ies and ex­ec­ut­ives that swindle the pub­lic, en­danger their work­ers, pois­on the en­vir­on­ment or oth­er­wise threaten con­sumers.”

The Justice De­part­ment has sim­il­arly ex­pressed con­cern that de­fend­ants could es­cape pro­sec­u­tion by claim­ing ig­nor­ance of the law. And in testi­mony pre­pared for Wed­nes­day’s hear­ing, a seni­or de­part­ment of­fi­cial warned that a “de­fault” mens rea re­quire­ment would “frus­trate” law en­force­ment, mak­ing it tough­er to pro­sec­ute crimes ran­ging from child por­no­graphy to cor­por­ate fraud to as­sault­ing and killing fed­er­al of­ficers.

For in­stance, the testi­mony from As­sist­ant At­tor­ney Gen­er­al Leslie Cald­well notes: “Fed­er­al stat­utes pro­hib­it­ing a wide range of white col­lar crimes pro­tect the pub­lic from fraud­u­lent con­duct by cor­por­a­tions and their of­ficers, dir­ect­ors, and em­ploy­ees. Ap­ply­ing a de­fault mens rea to these stat­utes might in­su­late culp­able in­di­vidu­als, es­pe­cially seni­or cor­por­ate ex­ec­ut­ives, who de­lib­er­ately close their eyes to what oth­er­wise would be ob­vi­ous to them.”

Sen­ate Re­pub­lic­ans have dif­fer­ent views about wheth­er to push for mens rea. Sen. John Cornyn, the cham­ber’s No. 2 Re­pub­lic­an and spon­sor of the bi­par­tis­an sen­ten­cing-re­form bill, isn’t tak­ing a hard line. He sup­ports mens rea lan­guage but said last month that “I don’t want to kill this bill over that.”

But Re­pub­lic­an Sen. Or­rin Hatch said mens rea is vi­tal.

“If you don’t put mens rea in there, you are al­low­ing ir­re­spons­ible pro­sec­utors to in­dict people without any basis oth­er than ru­mor,” he said in the Cap­it­ol Tues­day even­ing.

Asked Tues­day in the Cap­it­ol if in­clu­sion of mens rea is needed to steer a bill through the full Sen­ate, Hatch replied: “I think it is. Well, we could pass it sep­ar­ately, but I think it is ne­ces­sary. I think any an­ticrime bill that doesn’t have mens rea in it is a de­fi­cient bill.”

Sen­ate Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley, a lead back­er of the bill that cleared his com­mit­tee last year without mens rea, told re­port­ers Tues­day that the point of Wed­nes­day’s hear­ing is to “get some un­der­stand­ing among people of what the prob­lem is and how it fits in with the bill.

“I don’t have any idea how it fits in­to the floor con­sid­er­a­tion of the bill,” Grass­ley said. “But it is something that has been ex­pressed to me that is very es­sen­tial that we try to work something out, both with­in the Sen­ate and then even­tu­ally between the Sen­ate and the House.”

Grass­ley is ap­proach­ing the hear­ing with cau­tion. He said Tues­day that he’s “very con­cerned” that the ef­fort to ad­dress mens rea could jeop­ard­ize the wider crim­in­al-justice-re­form pack­age.

And while Good­latte has taken a tough line, not all ad­voc­ates of mens rea agree it needs to be part of the cur­rent ef­fort—in­clud­ing the Koch broth­ers. The bil­lion­aire con­ser­vat­ive act­iv­ists are part of the crim­in­al-justice-re­form push, and while they say mens rea should be broadened, they don’t want the dis­pute to upend the wider ne­go­ti­ations.

“We sup­port the Sen­ate Ju­di­ciary crim­in­al justice re­form bill that does not have mens rea re­form. We also sup­port the House Ju­di­ciary bill that has mens rea re­form and was sup­por­ted by Demo­crats … and Re­pub­lic­ans in the House,” said Mark Hold­en, gen­er­al coun­sel for Koch In­dus­tries, in an email.

“As I have said sev­er­al times, we want to see com­pre­hens­ive fed­er­al crim­in­al justice re­form passed as soon as pos­sible, and we will sup­port a bill that does not have mens rea re­form,” he said.

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