My good friend Bill Otis has posted his opening statement from a Federalist Society event on Capitol Hill last week entitled “Criminal Justice Reform: Sentencing, Mens Rea, and the Path Going Forward.” As Bill notes, the event was not recorded.  However, as my perspective differs somewhat from Bill’s, I offer my opening remarks for the readers’ edification, and I would note that House Judiciary Committee has just introduced legislation, including a mens rea reform bill, that I indicated might be “introduced shortly” with more likely to follow:

"I would like to thank the Federalist Society for inviting me to participate in this timely debate on sentencing reform and mens rea reform. Sentencing reform addresses how long offenders should be incarcerated, and mens rea reform addresses who should go to prison in the first place. They are separate issues, but both fit neatly under the heading “criminal justice reform.”  Let me first address sentencing reform, and then I’ll address mens rea reform.

Sentencing Reform

"A bipartisan sentencing reform package recently passed out of the Senate Judiciary Committee on a 15-5 vote, in which all the Democrats voted for the bill, and a slim majority (6-5) of Republicans voted for the bill. The House Judiciary Committee will soon take up its own sentencing reform bill, which differs in some small but significant ways from the Senate bill. 

"The Senate bill contains mandatory minimum reform, the use of risk-and-needs assessment tools and certified programs to address prisoner needs and to try to reduce the risk of recidivism, and a variety of other important provisions. The House bill just covers sentencing reform, although rumor has it that other bipartisan bills will be introduced shortly. Since the most controversial part of the Senate bill is the mandatory minimum revisions, let me focus my attention there.

"First, let me say a few words about how I look at this issue, and then I want to say a few words about what the bill doesn’t do.  While some supporters of sentencing reform believe we have a “mass incarceration” problem and that we should let people out just for the sake of reducing prison populations, I do not. I think that we should lock up the right kind of offenders for the right length of time. But in saying that, I also recognize that these are tight budgetary times and that we are not likely to embark on a prison expansion program anytime soon. I also acknowledge that federal prisons are overcrowded (state prisons even more so) and that the Bureau of Prison’s budget is eating up a large and expanding portion of DOJ’s budget.

"I also don’t believe that federal prisons (or state prisons, for that matter) are crowded with people who have been convicted of simple drug possession, nor, by the way, have I ever heard any supporter of sentencing reform say that. The drug offenders who are in prison, for the most part, are there for drug dealing, sometimes in significant quantities. That having been said, approximately half of the offenders in federal prison are there for drug-related offenses, and, according to the Sentencing Commission, a quarter of those are low-level offenders, many of whom received mandatory minimum sentences.

"I also recognize that while folks refer to non-violent drug offenders, the potential for violence is inherent in most drug transactions, either from drug dealers using weapons to protect themselves or their turf or from the risk of overdose by the user.

"While the Senate bill does reduce the mandatory minimum sentences for some drug offenders, it does not eliminate any mandatory minimum sentences, does not reduce the current mandatory minimum sentences when the offense involves death or serious bodily injury, and, in fact, adds two new mandatory minimum sentences for certain domestic violence and terrorism-related offenses.

"The mandatory minimum reforms in the Senate bill differ from the bill as originally introduced in two significant ways. First, the reductions to the minimum sentences are more modest, and the focus is more on expanding the safety valve for relatively low-level offenders. This will ensure that major drug players, as well as those most likely to have information that might be useful to the government, still face pretty hefty mandatory minimum sentences and that those most deserving of a break will get one.  This is, in my view, is a more targeted approach and an improvement over the original version. 

"Second, the bill reduces some mandatory minimum sentences in firearms cases and those involving armed career criminals and makes these reductions potentially retroactive (although it would require approval by the original sentencing judge for that to happen). I am more dubious about the wisdom of these reductions, especially at a time when violent crime, after a long period of decline, appears to be spiking.  In that regard, I would note that the House version does not allow for retroactive application for those who have been convicted of a “serious violent felony.” I consider this an improvement too. The House bill also contains an enhancement for drug transactions involving fentanyl, an opioid that dramatically increases the potency of drugs and which has likely been responsible for the recent epidemic of drug overdoses.

"The fact is that the current drug mandatory minimums for drug dealing focus almost exclusively on the type of drug and quantity involved, and not at all on the relative culpability of the offender or his or her criminal past. There is a current safety valve in the law, but it is extremely narrow, so that very few people qualify for it.

"As things stand, there are an awful lot of low-level drug offenders—too many, in my view—spending an awfully long period behind bars—too long, in my view—taking up a prison cell—which I consider very valuable real estate—when there are plenty of other offenders who belong there who present a greater risk to public safety.  

"When it comes to the existing drug mandatory minimums and how they apply to low-level drug offenders, I think the pendulum has swung too far, and that many of these reforms make sense. As I have noted elsewhere, many states have already implemented some of these reforms, and crime rates have, for the most part, continued to drop.

"The government has said that it needs the current mandatory minimum laws to induce “little fish” to cooperate against “big fish.” Again, these reforms do not eliminate any mandatory minimum sentences, so there are still plenty of incentives for defendants with useful information to cooperate. And Justice Department statistics seem to bear out that defendants are still cooperating at the same rate even though prosecutors have been given greater discretion when it comes to even charging mandatory minimum offenses in drug cases.

Mens rea reform

"Let me now turn to mens rea reform, which, to my disappointment, was not in the Senate bill and which has not been yet introduced in the House, although I am hoping that will change soon.

"Mens rea reform addresses those who should not be convicted of crimes in the first place. A mens rea requirement represents perhaps the greatest bulwark against overcriminalization, that is, the misuse and overuse of criminal penalties to address societal problems. As the Supreme Court said last term in the Elonis case, mens rea is what separates wrongful conduct from otherwise innocent conduct.

"We say that ignorance of the law is no excuse, but it is a reality. It has been estimated that there are nearly 5,000 federal criminal statutes and well over 300,000 federal criminal regulations. Nobody knows how many there are and what they are, not even the federal government. 

"Many of these laws do not proscribe inherently morally blameworthy conduct and, hence, are not malum in se crimes.  And many of these laws contain weak mens rea requirements or no mens rea requirements. This means that reasonable, otherwise law-abiding people can end up being convicted of crimes and deprived of their liberty, plus a host of collateral consequences, for unwittingly committing acts that cause some harm, even when that person had no knowledge of the law and certainly no intent to violate the law.  

"Let me say one thing that mens rea reform isn’t. Mens rea reform is not pro- or anti-regulation. You can think we are overregulated or under-regulated. Mens rea reform is totally agnostic on that point. Mens rea reform says nothing about who should be sanctioned through the civil justice or administrative system or how severely they should be sanctioned.

"All mens rea reform says is that when it comes to potentially labeling somebody a criminal, Congress ought to think long and hard about a mens rea requirement, and that courts should not interpret congressional silence with respect to a mens rea element to mean that Congress intended to enact a strict liability crime, which courts have done on occasion. 

"The moral stakes are too high to leave this to chance. Courts should not be left to guess whether congressional silence meant Congress’ intention to create a strict liability crime or whether a court should imply that Congress meant for the court to devise its own reasonable mens rea standard. As a general matter, courts should not be revising or supplementing statutes passed by the legislature.

"Moreover, to those who think that mens rea reform would undermine environmental or civil rights laws, I would respond that while some environmental and civil rights laws have weak mens rea standards, virtually all of them have mens rea standards, and therefore a default mens rea provision wouldn’t even apply, much less weaken those laws.

"While Congress has the ability to adopt whatever mens rea requirement it deems appropriate, and can even enact a strict liability offense if it so desires, it should make its intentions clear in the statute itself. And that if it doesn’t, a default mens rea standard should be inserted that would separate those who act with a bad intent and may be deserving of a criminal sanction from those who act without such an intent and who should not be treated as criminals. 

"Big companies and heavily-regulated industries have reams of lawyers on speed-dial who can keep them apprised of the details of these arcane laws and regulations. It is the little guy—mom-and-pop businesses and individuals—who is most at risk by the lack of adequate mens rea standards.

"There is a unique stigma that is associated with being branded a criminal. Not every bad act that occurs has to result in a criminal prosecution. In the overwhelming majority of instances, civil and administrative penalties—which can be quite severe—should suffice."

In 1952, in Morissette v. United States, the Supreme Court said: “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

Put another way, Oliver Wendell Holmes, Jr. once said, “Even a dog distinguishes between being stumbled over and being kicked.” The threat and reality of criminal prosecution should be reserved for those who do the latter, not the former. 

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Read part 1 of this series by Bill Otis.