April 7, 2016

BARELY LEGAL | Short-Lived Bipartisan Harmony Over Criminal Sentencing Reform

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In a legislature largely characterized by inefficiency and polarizing partisan interests, passing sweeping reforms to any existing law is a tall task. However, that impasse was bridged in October 2015, when the Sentencing Reform and Corrections Act of 2015 was met with bipartisan support in both houses of Congress.

The Sentencing Reform and Corrections Act seeks to address the high United States incarceration rate, which exceeds that of any other country. While the bill would only address federal prisoners (only 8.5 percent of the total number of incarcerated individuals in the country), its introduction could be a harbinger for change to the entire penal system. The bill is currently supported by 28 cosponsors in the Senate (15 Democrat and 13 Republican) and 60 cosponsors in the House (43 Democrat and 17 Republican), which represents uncommon bipartisan support.

The act features an assortment of reforms that mostly target drug-related crimes, and eases federal sentencing guidelines. For example, one provision reduces a life sentence to a mandatory minimum sentence of 25 years for the “three strike rule” involving drug-related crimes. Additionally, the bill’s drug-related provisions are retroactive, meaning that currently incarcerated individuals would have their sentences reduced.

While the bill was introduced in both houses out of committee (already an enormous feat), it still faces many hurdles. The bill would have to survive the complicated and arduous process of being introduced on the floors of both houses, being reintroduced to committee for revisions, passing both houses in identical form, and obtaining President Barack Obama’s signature. The Senate’s version of the bill already features additional provisions not found in the House’s version, including mandatory minimums for domestic violence, recidivism reduction programs for inmates, limitations on compassionate release and a prerelease custody program.

While the bill made promising gains in a short amount of time, a major barrier has already jeopardized the bill’s passage. A handful of Republicans lead by Representative Bob Goodlatte (R-VA) (chairman of the Judiciary Committee with responsibility for originally introducing the Sentencing Reform and Corrections Act) have demanded a mens rea bill accompany the Sentencing Reform and Corrections Act. Mens rea is defined as the mental attitude a defendant has at the time of committing any given crime and is codified in the Model Penal Code as acting purposely or knowingly. Although a great number of crimes already encompass a mens rea requirement, the proposed mens rea bill would require mens rea for all federal criminal statutes.

Representative Goodlatte has threatened to let the bill die in committee unless a mens rea bill accompanies the Sentencing and Reform Act, arguing that a mens rea provision is a “critical element to doing justice in this country,” and a requirement to ensuring fairness in the criminal process. However, it seems that corporate interests are also in play, as they would add additional layers of protection for white-collar crime. In fact, in 2015, ten lobbying reports targeted mens rea (including mention in four of Koch Brothers’ reports).

Opponents of the mens rea bill argue that legislation would make it exceedingly difficult for the government to prosecute white-collar crime for recklessness or negligence (mental states that lack the mens rea for conviction in the proposed bill). Deputy U.S. Attorney General Sally Yates stated, “It would provide cover for top-level executives which is not something we think would be in the best interest of the American people.” In other words, an individual could claim that they were not aware of the crime they were committing, and be exonerated under a claim of ignorance despite their pernicious actions.

Unfortunately, as the 2016 election approaches, it is becoming increasingly unlikely that this or any other meaningful legislation will be enacted. In fact, the original Sentencing Reform and Corrections Act of 2015 has not even been released from committee in either the House or Senate. Although the criminal justice system is in desperate need of reform, and the Sentencing Reform and Corrections Act enjoys widespread bipartisan support, the disagreement on mens rea has most likely doomed passage of this legislation. Perhaps the White House said it best, stating “criminal justice reform should only make the system better, not worse.”

Daniel Sperling is a J.D. candidate at Cornell Law School. Responses can be sent to associate-editor@cornellsun.com. Barely Legal appears alternate Fridays this semester.

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