Tuesday, July 26, 2016

Trojan Horse Reform

We know it as "Beware of Greeks bearing gifts." The full quote (though disputed), however, is "Do not trust the horse, Trojans. Whatever it is, I fear the Greeks even when they bring gifts."

To this may be added. Do not trust "reform," voters. Whatever it is, I fear the Republicans even when they bring gifts."

The Democratic platform, approved yesterday in Philadelphia, contains an extensive section on criminal justice, as does that of the GOP. Whatever the wisdom of specific recommendations, the intentions are progressive and well-meaning.  Thus, the Democratic plan includes support for "community based law enforcement programs" and a requirement for the Department of Justice to "investigate questionable or suspicious police-involved shootings." It supports "banning the box" and "restoring voting rights."  The Party promises "we will abolish the death penalty" and its commitment to equal justice is summarized in its call to "ending mass incarceration" and "the discriminatory treatment of African-Americans, Latinos, Asian Americans and Pacific Islanders."

And at perhaps its wisest, the framers promise to "close private prisons" and to "assist states in providing a system of public defense that is adequately resourced and which meets American Bar Association standards."

For all the talk last year about Democrats like New Jersey Senator Cory Booker and Republicans such as Utah Senator and (the dangerous) Grover Norquist finding common ground in criminal justice reform, you'd never know it by glancing at the GOP plank on criminal justice.
What is at first glance a progressive suggestion, a nod to the cause of ending mass incarceration, gives insight into the GOP insistence that the corporate state must be served. Consider

we urge caution in the creation of new “crimes” and a bipartisan presidential commission to purge the Code and the body of regulations of old “crimes.” We call for mens rea elements in the definition of any new crimes to protect Americans who, in violating a law, act unknowingly or without criminal intent. We urge Congress to codify the Common Law’s Rule of Lenity, which requires courts to interpret unclear statutes in favor of a defendant.

The Legal Information Institute explains "Mens Rea refers to criminal intent. Moreover, it is the state of mind indicating culpability which is required by statute as an element of a crime."   Last year, in "The Pressing Need for Mens Rea Reform," the Heritage Foundation's John Malcolm argued many regulatory crimes

are “wrongs” only because Congress or regulatory authorities have said they are, not because they are in any way inherently blameworthy....

Such regulatory infractions are enforced and penalized through the same traditional process that is used to investigate, prosecute, and penalize rapists and murderers, even though many of the people who commit such infractions are unaware that they are exposing themselves to potential criminal liability by engaging in such activities.

The Heritage Foundation, a favorite of Rush Limbaugh and many other doctrinaire conservatives, is not concerned with the average citizen charged with a criminal offense. And it so happens that the GOP platform plank on mens rea dovetails neatly with the Party's congressional moves toward criminal justice "reform."

In January, The Washington Post's Mike DeBonis described Senate consideration of the issue of "to what degree prosecutors must prove a defendant’s criminal intent in order to win convictions for certain federal crimes."  Raising the bar on what constitutes criminal intent may make it harder to prosecute some alleged cases of terrorism and child pornography but the primary danger, it appears, is in protecting

corporate criminals. The major proponents of mens rea reform include companies, most prominently Koch Industries, and activist groups who believe that the federal government holds too much power to criminally charge companies and their executives without having to prove criminal intent.

DeBonis added

Judiciary Chairman Sen. Charles E. Grassley (R-Iowa), meanwhile, argued the concerns raised by proponents of mens rea reform “just don’t hold up” and that they are “holding unrelated bills hostage.” Sen. Sheldon Whitehouse (D-R.I.) went further and suggested that the proposed changes amounted to a “Trojan horse” inserted into the criminal justice reform debate by political groups who have no broader interest in the issue.

The fate of mens rea legislation in Congress is uncertain. However, as support from the Heritage Foundation and the Koch Brother indicates, any effort to make it more difficult to prove intent  is a Trojan Horse designed to coddle the masters of the corporate universe.

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