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Sens. Hatch, Cruz, Perdue, Mike Lee Lead the Way for Reform

The kind of criminal justice "reform" that gets most talked about is "sentencing reform."  That label is code for a return to unserious sentencing for dealers in hard drugs like heroin, and for indulging anything-goes discretion for judges.  In other words, it's a call for a return to the failed policies of the past  --  the kind of policies that brought us a generation's worth of exploding drug use and crime through the Sixties, Seventies and Eighties.

But there's a kind of reform worth doing  --  although, oddly, no Democrats seem interested in doing it.  That would be mens rea reform.  I'm grateful that Sen. Orin Hatch, together with Sens. Cruz, Perdue, Mike Lee and Rand Paul have introduced a bill to get it done.

This should be easy for anyone interested in justice rather than The Agenda.  The idea was summarized by Sen. Hatch in his press release introducing the bill: "Individuals should not be threatened with prison time for accidentally committing a crime or for engaging in an activity they did not know was wrong."

I will add only one brief thought.  Not only is criminally punishing someone for accidentally creating injury morally wrong (tort law, by contrast, provides remedies for negligent injury); it undermines the essential distinction upon which citizens accept the imposition, and the stigma, of criminal punishment  --  that a bad heart deserves a different response from the law than just a poorly functioning brain.

UPDATE:  Kent makes an important distinction I failed to elaborate.  Extreme negligence can indeed stand in the shoes of bad intent for criminal law purposes, as it did in a case I was involved with many years ago, US v. Fleming, 739 F.2d 945 (4th Cir. 1984).  A drunken defendant unintentionally, but with gross negligence, collided with and killed a mother of nine.  It remains one of the most horrible cases I ever dealt with, and no mens rea reform should exclude instances like it from the reach of criminal law.


Bill, do you "strongly oppose [this bill] in its present form" as Kent says he does? It is unclear from your update whether you support of oppose the Hatch bill in its current form.

I support introduction of the bill in its present form -- to get things moving -- strongly believing that its language can and will be modified to reflect the common law (and common sense) rule noted by Kent. It's no stretch to say that normal people understand that a small degree of thoughtlessness should not land a person in jail, but gross negligence is another matter altogether.

You cannot have participated in the Fleming case I noted in the update and not know that extreme negligence rightfully stands in the shoes of criminal intent. Even the defense lawyer was appalled (indeed, I believe, grief-striken) by Fleming's let's-get-plastered-so-who-cares behavior.

P.S. Just so we stick to substance, do you agree with Kent's entry and my update adopting it?

There is a tension, Bill, between Kent's embrace of the MPC default standard of recklessness and your reference to "extreme negligence." Recklessness and extreme negligence are conceptually distinct, though often close in practice.

I am personally a big fan of the MPC and its recklessness default, so I would be okay with Kent's proposed modification of the Hatch bill. But I also see Hatch's bill as is as an improvement over the status quo, so I endorse the bill as is. And I ultimately prefer a high mens rea as a default rule because it should prod Congress to be clear when it is want to require only a lesser mens rea.

In other words, unlike Kent, I do not oppose the Hatch bill in its present form because all it is doing is creating a high burden for the govt when Congress is not clear, and I think government power should be constrained, not expanded, when Congress fails to legislate clearly. (Constitutional vagueness rules and lenity statutory construction rules generally reflect these principles, and I would like a default mens rea statute to work similarly.)

Does that answer your substantive inquiry?

Yes it does, and I appreciate it!

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