Default Mens Rea:
An Immodest White-collar Proposal
On October 2nd, a dangerous piece of legislation was (re)introduced by Senators Orrin Hatch, Mike Lee, Ted Cruz, David Perdue, and Rand Paul. The Mens Rea Reform act of 2017 would create a default requirement to prove criminal intent, mens rea, for all federal laws. Hatch stated:
Rampant and unfair overcriminalization in America calls for criminal justice reform, which starts with default mens rea legislation . . . Requiring proof of criminal intent protects individuals from prison time or other criminal penalties for accidental conduct or for activities they didn’t know were wrong. (Press Release, Oct 2017)
As explained by the Center for Media and Democracy:
for a number of white collar crimes, such as environmental violations and financial crimes under the Dodd-Frank financial reform law, federal law does not require that prosecutors prove that a company or its leaders intended to violate the law by polluting waterways, for example, or crashing the economy (Koch Self-interest in Criminal Justice Reform, 2015)
This 2017 bill, and others, are the products of research, lobbying, and legislation funded by Koch Industries and their network of wealthy white collar criminals.
The mens rea default requirement can be found in the Mens Rea Act of 2015 (introduced by the same senators), as well as a 2011 model bill published by the American Legislative Exchange Council (ALEC), the Criminal Intent Protection Act.
In 2015, Koch Industries’ general counsel and Senior VP, Mark Holden, acknowledged their interests began as a result of their criminal convictions, including the 2000 conviction of Koch Petroleum Group for covering up releases of hazardous air pollution in Texas:
That case, Mr. Holden said, demonstrated that the Justice Department too often pursues criminal cases even when the accused had no criminal intent. The company itself discovered the problems and notified the authorities, he said, meaning the company did not knowingly violate the law. (NYT 2015)
The Justice Department refuted Holden’s claims:
Koch Petroleum Group knowingly and voluntarily pleaded guilty to criminal violations of the Clean Air Act and to making false statements . . .These admissions and the significant criminal liability in this matter speak for themselves.” (NYT 2015)
Koch’s criminal justice reform initiative, Right on Crime, lists among its principles “Free Enterprise,” namely corporate freedom to commit crimes:
The explosion of non-traditional criminal laws grows government and undermines economic freedom. Criminal law should be reserved for conduct that is blameworthy or threatens public safety, not wielded to regulate non-fraudulent economic activity involving legal products.
2. Criticisms of Koch’s “Default” Mens Rea Reforms
Assistant Attorney General Leslie Caldwell said that Hatch’s 2015 Mens Rea Act would:
seriously harm our basic ability to prosecute a wide array of federal crimes [and] unleash sweeping changes across the the United States Code” that would clog courts with costly litigation and weaken the government’s ability to enforce a wide range of laws and regulations. (Washington Post, 2016)
Deputy U.S. Attorney General Sally Yates told NPR:
If this proposal were to pass, it would provide cover for top-level executives, which is not something we think would be in the best interest of the American people.
Sen. Sheldon Whitehouse called the reforms a “Trojan horse” inserted into the criminal justice reform debate by political groups who have no broader interest in the issue.
Public Citizen’s Rob Weismann has said the proposal "would make it much harder for prosecutors to criminally prosecute companies that swindle the public, endanger their workers, poison the environment or otherwise imperil consumers" (CMD 2015)
3. Koch’s Obstruction of Meaningful Reforms
Koch’s insistence on mens rea reform was credited for the failure of recent bipartisan criminal justice reform efforts.
When critics accused Koch Industries of supporting for sentencing reform as cover for the passage of mens rea reform, Koch’s general counsel remarked:
We believe there should be comprehensive criminal justice reform, which includes mens rea reform.. . .However, we have supported the Senate criminal justice reform bill which doesn’t have mens rea reform in it and we are comfortable with that bill . . .If mens rea reform is not in the package, that’s not our issue, it is Congress’ issue. (Washington Post, 2015)
Yet, the Koch funded Congressional sponsors held the line. Virginia congressman Rep. Goodlatte told the Atlantic the following year:
A deal that does not address this issue is not going anywhere in the House of Representatives. . . It has to be overcome. This is a critical element to doing justice in this country. (Atlantic, 2016)
The New Yorker quoted him as saying “We’re happy to discuss specific concerns, but it’s a deal breaker for us if they’re not included” (Mayer, 2016).
Upon the failure of the bipartisan efforts, Democratic Senator Sheldon Whitehouse blamed Koch’s insistence on mens rea, saying they “totally tanked” the bipartisan effort:
figured they could get something moving with their right hand and then stuff their corporate protection mens rea reform in, once it got going, with their left hand. . .I think that’s a fatal poison pill on what had been a good faith effort between Republicans and Democrats. (RCP, 2016).