“I don’t think what the criminal justice system needs is additional leniency for violent criminals,” Cruz said. “What this bill does is goes precisely backwards from where we should be going.”
By and large, the House and Senate proposals do not address violent crime, and the prisoners who would be eligible for release are low-level drug offenders or elderly convicts who have been behind bars for decades. “I don’t see a whole lot of Willie Horton fodder there, quite frankly,” said Mark Holden, senior vice president of Koch Industries and spokesman for the conservative Charles Koch, who is helping to bankroll the campaign for criminal-justice reform.
At the same time, Holden said the company wanted to see legislation passed in the first quarter of the year to avoid any complications with the campaign. The issue that some senators worry could scuttle justice reform before then is the question of criminal intent. Republican legislators like Bob Goodlatte of Virginia, chairman of the House Judiciary Committee, and Senator Orrin Hatch of Utah want any package to include mens rea reform, or changes to the law that would force prosecutors to demonstrate that a defendant knew he was acting wrongfully or committing a crime in order to be found guilty. At a Senate hearing on Wednesday, a senior Justice Department official warned that Hatch’s proposed change would “make prosecutors’ jobs and law enforcement’s job much more difficult.”
“You could have guilty defendants of very serious criminal conduct escaping liability,” testified Leslie Caldwell, assistant attorney general for the criminal division. “We think that would be a mistake.” As examples, Caldwell said that under the proposal, prosecutors would be unable to convict terrorists who bombed a hotel in Mumbai in federal court unless they could prove the terrorists knew Americans would be there during the attack. Liberal advocates also oppose the changes on the grounds that it would make it much harder to convict corporate CEOs of financial crimes committed by their firms. “It would be a very damaging provision in the white-collar space,” Caldwell said.
Democrats and the Obama administration say they’re willing to change the intent provisions on a “statute-by-statute basis,” but Hatch is pushing for a default standard that would cover hundreds if not thousands of laws. “We’re willing to do this, but you’re not going to solve a complex problem with simple, one-size-fits-all thinking,” Democratic Senator Patrick Leahy of Vermont said at the hearing.
Goodlatte said at an Atlantic Exchange forum last week that legislation without any changes to criminal intent “is not going anywhere in the House of Representatives.” His committee has been advancing bipartisan bills that appear likely to make it to the House floor, since Speaker Paul Ryan has voiced support for the effort. The Republican senators backing justice reform are not making those same demands, however, and they have the public backing of conservative advocates like the Kochs. “We don’t want to see reform go by the wayside because of this issue,” Holden told me.
Senator John Cornyn of Texas, the second-ranking Republican and a leading supporter of criminal-justice reform, suggested at the hearing on Wednesday that the dispute over mens rea could be resolved in a House-Senate conference committee. But that depends on the Senate passing a bill in the first place, and that decision belongs to the man who hasn’t said much at all: Mitch McConnell.