Step 1 to stop wrongful conviction: ‘Criminal intent’ reform

While most of the Washington media has been chasing headliner issues — healthcare, tax reform, and everything Russia collusion — the White House and Congress have been quietly moving forward on criminal justice reform.

In September, Jared Kushner’s “Office of American Innovation” recently held a “re-entry summit” utilizing experts in the field who know how prisons should and can become more rehabilitating and not more criminogenic. The event included a long overdue conversation concerning how to handle the hundreds of thousands of people sentenced to state and federal prison who return to their communities each year. (Approximately 95 percent of people incarcerated in state prisons will return to the street at some point). Sponsors included the American Conservative Union, Prison Fellowship, and Right on Crime, as well as other conservative and faith leaders from around the country expert in best public safety practices.

{mosads}The summit was a great start. But much more can be done at the federal level. First and foremost would be a return to a foundation of due process that has been lost in Congress’ long-running and rather unsuccessful campaign of over-criminalization.

The most promising reform vehicle on the horizon is Sen. Orrin Hatch’s (R-Utah) “Mens Rea Reform Act” — a bill targeted to the element of criminal intent. Such a title may be a bit intimidating for laymen, but every first year law student is taught the two essential elements of a crime: the actus reus and mens rea.

Roughly translated, these Latin terms mean “bad action” and “state of mind.” In the vast majority of criminal statutes, this means the state must prove criminal intent accompanied a bad act in order to achieve a conviction. The converse applies as well: Mere intent to do harm is not a crime in the absence of a harmful act to back it up.

The Mens Rea Reform Act sets forth a default term of intent, “willfully,” in the absence of a legal threshold. This important reform would ensure that if Congress intends to construct a strict liability statute — that is, wherein the mere act alone constitutes a crime — that it should be explicit in stating so. This change will protect Americans from laws that are vague or otherwise sloppily constructed by Congress. Simply put, no citizen should lose his or her liberty because Congress was negligent during the legislative drafting process.

The decision as to whether to bring criminal charges can be a difficult balancing act. The stakes are often enormous; a mere indictment often means reputational and financial ruin for the accused. Our system gives prosecutors wide discretion in such matters and we citizens are left to hope that these public servants serve the interest of justice before all else. Most do (I am married to one).

Yet there are times when a creative prosecutor seeks to take inappropriate advantage of laws (and regulations) that do not require proof of intent in order to secure a conviction. The bottom line: People who lack knowledge or intent to violate the law should not be placed at risk by our criminal justice system. This is particularly troublesome in this day and age, wherein some 4500 federal criminal laws are on the books, as well as more than 300,000 federal regulations (that carry a criminal penalty) supervised by unelected bureaucrats.

There are other admirable reform efforts in Congress including those that would lower sentences for low level, non-violent offenders and refocus prison resources on rehabilitation and lowering recidivism rates. But the Hatch bill is reform that starts before both of those factors come into play: Criminal intent reform can stop wrongful convictions in the first place. The time for this common sense change has arrived.

Robert Ehrlich is a former governor of Maryland and a partner at King & Spalding. He is the author of the forthcoming “Bet You Didn’t See That One Coming.”