In October, the
But enactment of the Senate bill is now threatened by exaggerated accusations that it would lead to the release of thousands of violent criminals and by a demand that the legislation include new and controversial language defining the "criminal intent" necessary for a conviction. Supporters of the legislation in both parties need to reject amendments that would cripple what would be a historic and humane reform of the federal criminal justice system.
The bill would place limits on mandatory minimum sentences, which often are enacted by Congress in response to panic about perceived "waves" of particular crimes. It would increase the discretion of judges in sentencing and prohibit solitary confinement for juvenile prisoners except when their behavior poses "a serious and immediate risk of physical harm." (In January, President Obama banned solitary confinement of juveniles in federal prisons by executive action, but that could be reversed by a future administration unless Congress acts.)
Some of the bill's provisions would be retroactive, meaning that inmates now serving time could petition for resentencing. One provision would make changes in mandatory minimums retroactive under the Fair Sentencing Act of 2010, which reduced the disparity between penalties for crack and powder cocaine from 100:1 to 18:1. The differential treatment of the two had disproportionately punished African Americans.
The second roadblock concerns an arcane but important question about what state of mind should be required for conviction of a crime. Sen. Orrin
Hatch has proposed legislation to provide a default mens rea — literally, "guilty mind" — standard to govern cases in which a particular statute doesn't spell out the required state of mind: The defendant would have to have engaged in a criminal act "willfully" in order to be prosecuted. Ominously, Hatch suggested that "any package of criminal justice reforms must include" provisions to shore up mens rea protections. Disagreement over adding that could provide Senate Majority Leader Mitch McConnell with a pretext for not bringing the bill to a vote.
Criminal intent is an important principle. As Chief Justice John G. Roberts Jr. noted last year, under American law a defendant must be "blameworthy in mind" before he can be found guilty. At some point Congress may want to take up the issue of whether the intent requirement should be clarified. But there is no reason to hold this bill hostage to Hatch's proposal, which is opposed by members of Congress who fear it would make it harder to prosecute white-collar and environmental crimes. First things first.