A Sensible Sensenbrenner Bill

Debate is raging over the House Judiciary Committee’s  approval of a slate of criminal justice reform bills likely to be packaged together on the House floor. While there is general consensus about the wisdom of reducing severe sentences for nonviolent drug offenders, not everyone is happy with a component in one of the bills that aims to reduce criminal prosecutions of some white-collar crimes.

The divisive bill, authored by Rep. Jim Sensenbrenner (R-Wis.), with co-sponsors that include Rep. John Conyers (D-Mich.) and Rep. Sheila Jackson Lee (D-Texas), would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” rather than having simply violated the letter of the law.

Such a requirement, known as “mens rea” — Latin for “the mind [must be] guilty” — is already part of many statutes but absent from others, which has led to charges that it is too easy to be held criminally accountable for unknowing violations of laws.  Opponents of the proposed change claim that it is being promoted by corporations that do not want to be held responsible for crimes, in particular those that may endanger the environment or public safety.

Among those opponents is the Obama administration. A White House official said the bill “would undermine public health and safety, including laws that protect our environment and ensure food and drug safety.”  The administration has long advocated easing harsh sentencing laws for minor offenses, but is drawing the line at the Sensenbrenner bill.

Justice Department officials argue that a mens rea provision like the one being proposed would have prevented the filing of charges and resultant guilty pleas in cases like that of a Colorado company that inadequately cleaned its cantaloupes, resulting in a food-borne illness that was cited as a possible factor in a number deaths.

Opponents of the bill also point to the fact that it is being supported by Koch Industries, headed by Charles Koch, a favorite target for opprobrium by Democrats who revile the industrialist’s support of conservative causes. Critics point to the fact that a criminal case filed 15 years ago against Koch Industries claimed that it covered up releases of hazardous air pollution at a Texas oil refinery. The charges resulted in a guilty plea by the company and a $25 million penalty.

The critics fail to mention, though, that it was the Koch company itself that discovered the problems and notified the authorities.  When it became aware of the violation, it acted responsibly. Yet despite that, the company was pressured to enter a guilty plea and accept a large fine. If anything, the refinery case argues for the Sensenbrenner bill, since the continued lack of a mens rea provision in laws like the one the company unwittingly violated will only prevent companies from acting responsibly as Koch Industries did.

Even some liberals, like the Democratic co-sponsors of the Sensenbrener bill, who aren’t necessarily fond of its mens rea provision, are supporting it all the same, because the bill would reform federal prison sentencing by ending the federal “three strikes” rule and limit the use of mandatory 10-year sentences for offenders who have not committed violent or major felonies. Those Democrats see the current session of Congress as a rare chance to address what they see as a broad unfairness in the criminal justice system, and are reluctant to oppose it.

For their part, advocates of the bill say that the Justice Department and other opponents are exaggerating the impact the bill, if enacted, will have.

Illustrating what they see as its positive effects, they cite cases like one that was prosecuted just last year. A fisherman was charged with violating federal accounting laws by tossing undersized fish he had caught overboard. Although he didn’t realize that a law forbidding destruction of “any tangible object” during a federal investigation might apply to what he did, he was convicted and sentenced to prison. The Supreme Court eventually overturned the conviction — but only because it ruled that the law’s intent was to avoid the destruction of documents, not sea creatures. A mens rea defense would have avoided a conviction in the first place.

That case illustrates the falsity of the notion that only large conglomerates will be afforded the benefit of the doubt if the Sensenbrenner bill is adopted. Small businessmen, too, will be less likely to be prosecuted for being unaware of the details of the myriad regulations that have come to govern commerce. They deserve that consideration.