Does the country need sentencing "reform" that would release drug traffickers early, on the false promise that they are "non-violent"? Wendell Callahan, the knife-wielding cocaine dealer given not one but two sentencing "reform" breaks, has already shown us the answer.
Does the country need sentencing reform in which people who don't know, and have no sensible reason to know, that they have broken the law, are no longer sent to prison?
It dawned on me today, Bill, that mens rea reform might make it that much harder to prosecute Hillary Clinton for any security breaches during her time as Sec of State. Does that seem right and does that worry you at all?
I don't know enough about the specifics of Hillary's behavior to have an informed view of whether mens rea reform would complicate a potential prosecution. In any event, the sort of reform I'd support would allow wanton negligence to stand in the shoes of bad intent.
One question if I might, Doug: Do you think, as I do, that it's odd and unseeming for this Administration to want to go easier on people who know they're doing wrong (hard drug traffickers), but continue to want to impose criminal punishment on those who do NOT know they're doing wrong (people who commit only regulatory offenses)?
I do not find it odd because big government do-gooder types always want to go after someone they think is bad, but the party in power typically has its own parochial vision of who is bad. This irony is often most rich in the gun context where Rs want to defend the gun owner's rights until he smokes a joint, and the ads want to defend the joint smoker until he wants a gun.
Most notable here, Bill, is that I sense many of the career prosecutors you often extol are the most potent voices against mens rea reform, again I fear because they dislike any changes likely to make their jobs harder. That is why the Bush DOJ and the Obama DOJ both have resisted any Booker fix that would increase burdens of proof at sentencing, and it is why they are quick to defend MMs because of the leverage they provide.
In short, the big government establishment --- eager for more federal power to go after businessmen of all stripes and to make more money for lawyers and other insiders along the way --- shape perspectives on criminal justice far too much. Maybe a Prez ticket of Cruz-Sanders will fix all this... ;-)
Even though you now longer comment on my blog, Bill, I trust you have seen my posts assailing the opposition to mens rea reform as a block to getting sentencing reform done.
Is Donald Trump ghost writing your comments?
This in particular was a beauty: "Most notable here, Bill, is that I sense many of the career prosecutors you often extol are the most potent voices against mens rea reform, again I fear because they dislike any changes likely to make their jobs harder."
Where to start?
1. I don't think "sensing" Proposition X counts as very reliable evidence for Proposition X.
2. How many is "many" career prosecutors? Eight? Fifty-seven? Three hundred? Talk about wiggle room!
3. I don't know that I "extol" career prosecutors, but I am proud to have been one (for several years) and I believe they perform an invaluable function. They do this in the face of unhinged hatred from, e.g., the BLM movement and ideological segments of the defense bar.
4. Could you show me any statement from, say, NAAUSA, opposing mens rea reform to any degree at all? Because my information is that NAAUSA has never taken a position. Perhaps you'll correct me. Otherwise, are you, ya know, building a straw man here or something?
5. At some point, it would be nice to lay aside the ad hominem adventures. Thus, you might be willing to entertain the notion that Democrats and Republicans defend MM's, not because MM's "make their job easier," but because -- ready now? -- they are an effective mechanism to restrain reckless and idiosyncratic judges of the kind who helped usher in the crime wave of the Sixties and Seventies.
One of several reasons I stopped commenting on SLP is exactly that sort of low-blow stuff. It's never that there's a principled or reasoned opposition. It's always just that your opponents want a cushier job (or more power or the joy of convicting the innocent, etc.)! Defense lawyers are pristine guardians of the Constitution. Prosecutors are lazy thugs. Dadadada.
It was bad enough that your commenters regularly wrote that sort of stuff, pulling down the whole blog (as, I see, some of them have noted recently). It's worse that you would encourage them by sewing the same field.
You have many, many valuable things to say. Why don't we just stick with that?
Yeesh, Bill, did I hit a nerve? More response tonight.
Well, I admit it rankles me when I hear that federal prosecutors like mandatory minimum sentencing just because it makes their jobs easier.
Somehow, no one ever seems to say that public defenders DISlike mandatory minimum sentencing just because it makes their jobs harder.
My experience, and I would think yours, is that each side has principled, not self-serving, reasons for its stance.
Sorry to push your buttons, Bill, but for me these issues are not binary. I think there are often combined principled and self-serving reasons that drive a lot of professional and personal perspectives. Moreover, saying someone dislikes any changes likely to make his job harder is not to say the person is a lazy thug: e.g., I dislike when I have more paperwork to do in my various jobs, because it takes time away from the parts of the job I enjoy more and seem to me more valuable. Similarly, I suspect prosecutors dislike facing higher formal proof burdens because they rarely go after folks they are not convinced are bad, and having to spend more time proving this up after a prosecution has begun is not as satisfying as going after the next bad guy and the next one.
In any event, I am sorry if my statement struck you as an insult to prosecutors. It was not meant this way. But, Leslie Caldwell's testimony to the Senate Judiciary stated DOJ's concern that mens rea reform would make it "much more difficult ... to enforce critical criminal statutes that ensure public safety." (For the record, I think of Caldwell as a career prosecutor because she worked at DOJ from 1987 to 2004, though I suppose she is now technically a political appointee.)
For the record, I share your view that federal prosecutors "perform an invaluable function." I just think they now prosecute too many federal cases that ought to be left to the states and/or that could be handled through civil enforcement mechanisms. And this is part of my broader concern about government "bloat" that in part drives my disaffinity for federal sentencing structures and proof standards that make pleas all too common and have help increase the federal prosecutorial caseload dramatically in recent decades.
As for NAAUSA, I would be very interested in its perspective and those of its members on this mens rea reform front. I would guess its notable silence here reflects perhaps a hope that uncertain on the mens rea front will bring down the SCRA. But because I find it hard to get any transparency from NAAUSA --- e.g., I am still looking for more info on that poll they put together that you have often referenced --- I doubt I can readily find out why they have not yet spoken up on this mens rea front.
Well, Leslie Caldwell is more than "technically" a political appointee. She is a 2014 Obama selection to a very prominent position at DOJ, to wit, head of the Criminal Division. For the ten years before that, she was a CRIMINAL DEFENSE LAWYER, raking in the big bucks at a white shoe Manhattan firm. To try to re-invent her as the spokesman for career prosecutors is, ummmm, a stretch.
As for NAAUSA: Guessing about its position on mens rea is just that, guessing. I am not a member any more than you are, so I don't speak for it and I have no idea what its members think of mens rea reform. As with any large organization, I suppose some members think one thing and some another.
Of course, I am not bound either by NAAUSA (even if it had an opinion) nor by the political big shots at DOJ. I favor mens rea reform on the merits. Punishing people for acts they don't know are wrong (much less criminal), and have no particular reason to think are wrong, undermines the moral legitimacy of criminal law.
This Administration combines the worst of both worlds -- an authoritarian desire to use criminal law to punish legitimate businessmen who lack bad intent, combined with a determination to back away from punishment (like MM's) for people who know full well that what they're doing is harmful, wrong and illegal.
P.S. If liberals' hypocritical refusal to go along with mens rea reform brings down the SRCA, so much the better, although the SRCA should (and might) fall of its own weight anyway. See, e.g., the gruesome Columbus massacre by a drug dealer out on sentencing reform-inspired early release.
Getting back to Douglas's original question, how could mens rea reform complicate her prosecution in any way?
People in her position are trained from day one what is and is not classified information and how to handle it. I do not see any credible defense for her on that point.
Is there a finer technical legal point I am missing?