A Pox on Both Your Houses

In the opening essay, Professor Teles lays out the problems he sees in meaningful criminal justice reform because of infighting on the political right. For the most part, I agree with his analysis regarding the conflicts within the Republican coalition and the obstacles they presented up to this point in the 114th Congress. But that is not the whole story of why we don’t have a comprehensive federal bill in the imminent lame duck Congress. And the much larger problem—the American appetite for criminal punishment—is not something that neatly cuts down partisan lines at the federal or local levels.

In 2013, the House Judiciary Committee established an Overcriminalization Task Force. It was a bipartisan group that lacked the legal powers of an official subcommittee, but nevertheless held hearings to discuss pressing matters in the federal criminal justice system.

One of the early areas of agreement in the Task Force was the need for mens rea reform. For those unfamiliar with arcane Latin legal terms, mens rea is the ancient concept that for someone to be held accountable for a criminal act, they had to have a “guilty mind” or criminal intent. For example, if you accidentally pick up the wrong bag at the airport terminal, you should not be charged with theft because you made a mistake trying to retrieve your bag.

On the other side of the coin, for some crimes, legislatures have designated what are known as strict liability offenses. That is, whether or not a person knew he was committing a crime, the person is criminally liable for the act. A common variety of this is selling alcohol to an underage person or providing a firearm to a felon.

Finally, instead of either of these explicit instructions to guide prosecutions, Congress has failed to set any scienter requirements—that is, what level of knowledge is required for a person to be held criminally liable—in many of the myriad laws and regulations that carry criminal penalties.[i] An absence of clarity gives prosecutors a wide amount of latitude in whether to bring criminal charges for violations that a person didn’t know existed. To remedy the ambiguity, a default mens rea provision was to be included in federal criminal justice reform to close the gaps where they exist. This provision would not preclude or override any strict liability laws or other explicit scienter requirements already on the books. It would simply say that absent Congressional clarity, the courts should assume that criminal liability is commensurate with mens rea.

At some point between those hearings in 2013, in which Representatives Bobby Scott (D-VA) and John Conyers (D-MI) led other Democrats in calling for mens rea reform, and 2015, many Democrats and their allies turned against a default mens rea provision. Despite mens rea reform support from traditionally left-of-center organizations like the American Bar Association and the National Association of Criminal Defense Lawyers, the White House and others came out strongly against the provision. Even the executive director of the ACLU wrote a letter to the editor in the New York Times echoing that position. The fear, it seems, is that corporate wrongdoers will get away with environmental and other regulatory crimes if the government strengthens the scienter requirements.[ii]

If it were only mens rea, which is an important principle but somewhat tangential to the topic of de-incarceration of this series, the broader political left might have retained the moral high ground in the federal debate, given the Republican-led efforts to undermine reform that Professor Teles described in his essay. But there is more.

The Obama Justice Department, specifically Deputy Attorney General Sally Yates, issued a memorandum earlier this year about what companies need to do to get credit for cooperating with a DOJ investigation. The upshot of the so-called Yates Memo is that a company must “provide…all relevant facts relating to the individuals responsible for misconduct” to the Department of Justice.[iii] In practice, this means the company must do an internal investigation and turn someone over to the DOJ for prosecution as a precondition that the company will not face a potentially ruinous indictment or lawsuit.[iv]

And these tough-on-crime policies are not limited to the white collar realm and corporate responsibility. The condemnation and political persecution of the judge who sentenced former Stanford University student Brock Turner for sexual assault were illustrative of what some call “carceral feminism.” Regardless of whether or not the sentence was too lenient—and there’s a strong argument that it was—the reflexive political backlash that effectively drove the judge from the criminal bench belies the activist left’s commitment to mass de-incarceration. If judges are afraid of giving less punitive sentences for fear of political reprisal, they are more likely to throw the book at offenders and thus increase the number of incarcerated people.

The reform movement that exists—on either side of the ideological spectrum—seems to be tied directly to a specific type of person: the nonviolent drug offender. Given the draconian mandatory minimum sentences that put away many of those offenders for decades, it is comparatively easier to make an argument for bringing them home and back into society. Consequently, nonviolent drug offenders have benefitted almost exclusively from President Obama’s early-release commutations and are also the primary targeted beneficiaries of many reforms at the federal and state levels. But a majority of American prisoners are incarcerated for violent crimes.[v] The dominant reforms and rhetoric do not recognize that, leaving most offenders unaffected by even the most wide-ranging proposals.

And now we must confront the consequences of the election of Donald Trump as president with Republican majorities in both houses of Congress. President-elect Trump resurrected the dormant “law-and-order” rhetoric of the 1980s and ran with unambiguous zeal for immigration violation crackdowns. A Trump Department of Justice and law enforcement grantmaking may push law enforcement at all levels toward more aggressive policies and tactics.[vi] The hopes of federal reform in the lame duck looked bleak before the election, and nothing from the Trump camp would suggest the next administration will be looking to reduce federal criminal enforcement efforts.

However, this does not mean all hopes for improvement are lost. Professor Teles mentioned the red state reforms that have already been passed in Texas, Georgia, and Mississippi. Part of the reason these reforms are going through is that incarceration is expensive. Economic pressure may keep de-incarceration on the state-level conservative agenda.

Moreover, there have been some gains at the ballot box this year. Particularly, these victories have come at a position oft overlooked in reform politicking: the election and removal of prosecutors.

While the legislatures provide the laws to be enforced, the high level of discretion of prosecutors plays the decisive role in who goes to jail and why.[vii] Although district attorneys’ races can be partisan, prosecutorial reformers won races this year in cities as diverse as Chicago, Houston, Denver, Orlando as well as less populous jurisdictions like Henry County, Georgia and Columbus, Mississippi.[viii] It remains to be seen what impact these new faces will have in their jurisdictions, but their elections show that substantive change is possible.

It is unclear how much of the president-elect’s support is based on his law-and-order rhetoric and how that might play out in cities and towns across the country. Despite the recent move toward reform on left and right, however, there remains the traditional American appetite for what Professor Jonathan Simon dubbed “governing through crime”[ix]—the reflexive response to handling public ills through punitive criminal sanction. This remains in evidence through the mens rea debate, the sustained push for corporate criminal liability, and the continued struggle to tackle “rape culture” on the left, as well as the traditional fight against violent crime, drugs, and terrorism on the right.

Going forward, the core of the carceral problem in the United States may have much less to do with breaching partisan ideology than it does reining in America’s more punitive reflexes.




[i] Literally, no one knows how many federal laws and statutes carry criminal penalty. Another provision included in federal reform legislation was dubbed “count the crimes” to force the federal government to count and list every law that could be prosecuted criminally. In a legal environment that lacks a comprehensive list of offenses, some basic requirement of intent or knowledge ought to be required for criminal prosecution.

[ii] The dearth of real world examples of genuine bad guys getting away for lack of mens rea undermines this fear, but it persists nonetheless. It is also worth noting that civil liability is not affected by a criminal mens rea requirement.

[iii] Sally Q. Yates, “Memorandum: Individual Accountability for Corporate Wrongdoing,” Office of the Deputy Attorney General, pp.2-3, September 9, 2015, available at https://www.justice.gov/dag/file/769036/download.

[iv] See generally, N. Richard Janis, “Deputizing Company Counsel as Agents of the Federal Government,” Cato Institute, July 14, 2008, available at https://www.cato.org/publications/white-paper/deputizing-company-counsel-agents-federal-government.

[v] E. Ann Carson, “Prisoners in 2014,” Office of Justice Programs: Bureau of Justice Statistics, Table 11, p. 6, September 2015. Available at https://www.bjs.gov/content/pub/pdf/p14.pdf

[vi] Subsidies and other enticements toward increasing local immigration enforcement seem likely, given the hardline immigration stance repeated on the campaign trail.

[vii] See generally, Adam J. Foss, “A prosecutor’s vision for a better justice system,” TEDtalk, February 2016, available at https://www.ted.com/talks/adam_foss_a_prosecutor_s_vision_for_a_better_justice_system#t-259647.

[ix] See generally, Jonathan Simon, Governing Through Crime, Oxford University Press, (Oxford, UK):2007.

Also from this issue

Lead Essay

  • Steven M. Teles surveys the recent history of criminal justice politics in the United States. He finds it hard to deny that advocates of reform have suffered a reversal: The law-and-order message of Donald Trump’s candidacy seems like it may bring Republicans back to where they were two decades ago on criminal justice policy. But without conservative political support, the legislative process in the states will not yield significant de-incarceration. The large majority of the incarcerated are under the authority of the states, and the Republican Party has some share in the government of many of them. Teles sketches some possible ways forward for reform, but all of them involve continued conservative activism on this issue.

Response Essays

  • Peter Moskos surveys a rapidly shifting political landscape: With Donald Trump as the president-elect, all bets are off. The reform of our incarceration system seems further away than ever. Reducing incarceration will certainly require both ending the war on drugs and greatly reducing sentence length for all types of crime. Neither seems politically possible now. And perverse incentives will continue to keep sentences long even for relatively minor crimes: Local officials do not pay for the incarceration of those whom they give longer sentences. For these, the costs are passed along to the state governments.

  • Jonathan Blanks looks beyond partisan politics, to a culture that sees incarceration as the solution for too many problems. Neither party has done much to address this stubborn feature of our political life. Blanks sees the failure of mens rea reform as illustrative of the difficulty: Neither side could be counted on to take the de-incarcerating view when it really mattered. The left has likewise been all too willing to deploy harsh sentencing at times when its other political goals seem to demand it. But both of these are only a small matters, in context, because significant reductions in our prison population will require shorter sentences in general, and for all violent offenders.

  • Marie Gottschalk doubts that Republicans were ever serious about doing the hard work that de-incarceration would require. She notes that the project’s fiscal benefits would likely be modest, and that even framing the issue as just one of saving money tends to obscure the real work of building crime-free communities and curbing institutional racism. Successful de-incarceration will require more money, not less, she argues, to help with the educational, health, and re-adjustment needs of former prisoners. These questions of social justice can’t easily be addressed when conservatives’ chief interests lie with saving money alone.