On September 19, Senator Chuck Grassley (R-IA) issued a press release stating that the bipartisan authors of a 2015 landmark criminal justice reform bill were preparing to reintroduce that legislation. The Sentencing Reform and Corrections Act of 2015 (PDF: 1,020 KB), to which Sen. Grassley will grant new life, was part of a widespread effort at criminal justice reform that appeared to have died with the 2016 election. A centerpiece of the effort would have clarified and enhanced the mens rea (or mental state) necessary for conviction: in the House version, a defendant could be convicted only if she knew she was engaged in criminal activity; the Senate version was even more defendant-friendly, requiring willful participation.
Criminal justice reform has a laudable overarching ambition—to reduce sentences and incarceration rates, especially for minor drug and firearms offenses. As Yale Law Professor Gideon Yaffe writes, this would benefit “those who are especially ill-treated by the criminal justice system: the poor and racial minorities.” But these efforts are being championed by some unusual suspects: Republican members of Congress, who don’t ordinarily vie for more leniency when it comes to street crime, and the Koch brothers, who also are not usually poster boys for the plight of the underclass, who are over-represented (PDF: 153 KB) in criminal prosecutions, convictions and America’s prisons.
Why then the newfound interest in mens rea reform? One answer—a cynical one, to be sure—is that mens rea reform stands to benefit not only those who commit low-level crimes on the street, but also those who occupy America’s executive suites. In particular, the reform efforts would rule out the conviction and punishment of executives for corporate crimes that the executives neither ordered, authorized, carried out, nor culpably failed to prevent. Grouped under the “responsible corporate officer” (RCO) doctrine, these offenses in effect allow for strict accomplice liability: the executive is culpable for a crime of his subordinate independent of whether he knew, or even should have known, about the crime in advance.
Strict criminal liability is widely reviled (PDF: 334 KB). Elsewhere, I have endeavored to defend the RCO doctrine on desert-based grounds. I will not rehearse those arguments here. I want instead to undertake the more modest task of responding to those liberals who are willing to go along with the conservative reform agenda, as a way of securing the kind of liberalization that would benefit those who are routinely subject to overly aggressive criminal law enforcement (and who do not have the resources for the white-shoe legal counsel that indicted executives have at their disposal).
Gideon Yaffe advances the argument forcefully. “It would be a shame,” he writes, “if partisan distrust kept Democrats from supporting a proposal favored by the right[.]” For “strengthening mens rea requirements will also help poor and minority people” and “the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime . . . without evidence of a criminal state of mind.”
The conservative Heritage Foundation, perhaps in a bid for liberal support, concedes that the two pending bills might work to the advantage of “some senior corporate management ‘fat cats.’” But in a line of argument that echoes Yaffe’s, it contends that “any remedy for any of the ills caused by overcriminalization will have that effect.” And it concludes that we “ought not to reject remedies for a serious problem because the neediest are not the only ones who will benefit from them.”
In response, we should note that the argument that helping the poor requires helping the rich involves a rhetorical sleight of hand. It would be one thing if criminal justice reform for the disadvantaged required a statutory change that increased leniency for the advantaged. If that were the case, then we would indeed have to resign ourselves to the fact that the “sun ‘rise[s] on the evil and on the good,’” as the Heritage Foundation pointedly reminds us. But it just isn’t the case that the prospects for reform are so limited.
To see that we could address the kinds of over-criminalization most affecting the poor without becoming overly lax with respect to the rich, consider that sentencing reform alone would go a long way to improving criminal justice outcomes for society’s most disadvantaged members, given the unduly harsh sentences low-level drug offenders currently receive, and given that African Americans are almost four times as likely as Whites to be prosecuted for minor drug offenses. Or we might have mens rea reform only for malum in se crimes, rather than the public welfare offenses to which the RCO doctrine extends.
So helping both the privileged and underprivileged is not a matter of linguistic or conceptual necessity so much as it is a matter of political pragmatism: liberals calculate that they will get congressional support for the kind of criminal justice reform they care about only if the reform bills add in provisions that serve the interests conservatives care about. (After all, the only people prosecuted under the RCO doctrine are, as the doctrine’s name suggests, corporate officers, who are among the highest earners in the United States.) As such, the pending bills would protect the most advantaged as well as the most disadvantaged members of society not because we have one and only one criminal law for all, but because some members of society are keen to ransom justice for the poor for the price of impunity for the rich.
I am not in a position to judge whether needed criminal justice reform is worth this price. But it is worth casting the proposed “compromise” for what it is: deserved fairness for the disadvantaged at the price of unwarranted leniency for the already advantaged. And once the political bargain at the heart of the bill is put plainly on the table, perhaps conservatives will feel somewhat more abashed for having proposed it in the first place.
Amy J. Sepinwall is an Associate Professor of Legal Studies & Business Ethics at Wharton, University of Pennsylvania. She is currently a Laurance S. Rockefeller Visiting Faculty Fellow at the University Center for Human Values, Princeton University.
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