WASHINGTON—(ENEWSPF)–January 21, 2016. U.S. Senate Assistant Democratic Leader Dick Durbin (D-IL) yesterday spoke at a Senate Judiciary Committee hearing on so-called mens rea reform legislation that Senator Orrin Hatch (R-UT) ) is insisting be included in the bipartisan Sentencing Reform and Corrections Act negotiated by Durbin and Senate Judiciary Committee Chairman Chuck Grassley (R-IA).
“Instead of working with Democrats to reach a compromise, Sen. Hatch filed his legislation as an amendment to the Sentencing Reform and Corrections Act, and said if it wasn’t adopted he would vote against the bill,” said Durbin. “This is very different from our approach with the Sentencing Reform and Corrections Act. Chairman Grassley and I have very different views on sentencing reform, but we and a number of other Republican and Democratic members of this Committee negotiated for six months to reach a bipartisan consensus.”
Full text of Durbin’s remarks as prepared for delivery:
Thank you, Chairman Grassley, for holding this hearing, and thank you for your leadership on criminal justice reform.
The supporters of so-called mens rea reform legislation claim that there is an epidemic of federal crimes with unclear or insufficient criminal intent requirements. As a result, they argue that many innocent Americans are being sent to jail for actions that a reasonable person wouldn’t know were wrong. They cite a few prosecutions to support their argument. But a few cases don’t constitute a crisis, and in fact most of these cases were later dismissed or overturned on appeal.
We have asked mens rea advocates to give us a list of criminal offenses with inadequate intent requirements so that Congress can address them. But advocates say they can’t provide this list because there are just too many criminal offenses.
To respond to this concern, Chairman Grassley and I included a provision in the Sentencing Reform and Corrections Act which is known as the crime index. This section, which was authored by Senator Flake, would require the executive branch to establish a public index with the mens rea and other information for every federal crime, whether it was established by statute or regulation.
The crime index will provide transparency to the American people and help us determine whether there are criminal offenses with intent requirements that need to be fixed. This is the first necessary step towards mens rea reform.
But the supporters of the “Mens Rea Reform Act” oppose this reasonable, step-by-step approach. Instead they propose the radical step of establishing what they call a “default mens rea” that would apply to every element of every federal offense that does not specify an intent requirement.
It is a well-established tenet of the law that ignorance of the law is no excuse. But this bill would eliminate strict liability offenses.
These dramatic changes in the law would make it much harder to prosecute corporate crimes, like environmental and health and consumer protection violations. Under the mens rea bill, a white-collar criminal could only be found guilty of bank fraud if he knew he was robbing a bank that was FDIC-insured. And the bill would make it much harder to prosecute companies that sell adulterated food or drugs, which is a strict-liability offense under existing law. To demonstrate the importance of this law, consider just one recent case: the Justice Department used this statute to successfully prosecute Jensen Farms for selling cantaloupe contaminated with Listeria, which resulted in at least 33 deaths and 147 hospitalizations.
The name of this bill shouldn’t be the “Mens Rea Reform Act”; it should be the “White Collar Immunity Act”.
If that’s not bad enough, this bill also would make it much harder for the Justice Department to prosecute serious crimes. Here are just a few examples of federal crimes that would have higher proof requirements and new defenses under the mens rea bill:
- importation or transportation of obscene matters;
- obstruction of a sex trafficking investigation;
- failure to report child abuse; and
- production of sexually explicit depictions of a minor for importation into the United States.
This is why mens rea legislation is strongly opposed by the Justice Department and law-enforcement groups like the Fraternal Order of Police, the National District Attorneys Association, and the Major Cities Police Chiefs Association; as well as civil-rights and consumer-protection groups like the Leadership Conference for Civil and Human Rights and Public Citizen.
I have great respect for the lead sponsor of this legislation. He and I have worked together in the past on important bipartisan legislation like the DREAM Act. But there is a reason this bill does not have a single Democratic cosponsor. Last year, my staff, and staff for Senators Leahy and Whitehouse, met with Sen. Hatch’s staff and mens rea advocates to discuss this issue. The Democratic staff asked a number of questions and made a number of suggestions about possible legislation. Sen. Hatch’s staff promised to respond, but they never did. Instead of working with Democrats to reach a compromise, Sen. Hatch filed his legislation as an amendment to the Sentencing Reform and Corrections Act, and said if it wasn’t adopted he would vote against the bill.
This is very different from our approach with the Sentencing Reform and Corrections Act. Chairman Grassley and I have very different views on sentencing reform, but we and a number of other Republican and Democratic members of this Committee negotiated for six months to reach a bipartisan consensus.
I am pleased that some conservative advocates, such as Koch Industries, say they support moving forward the Sentencing Reform and Corrections Act without the mens rea bill. The real test of their commitment will be whether they can persuade a few Senate and House Republicans who have said this poison pill must be included in any criminal justice reform legislation. It is wrong to hold hostage legislation with broad bipartisan support in order to advance a controversial partisan bill. I hope this hearing will convince the sponsors of the mens rea bill to take a different approach.