Criminal Justice

DOJ Tries to Poison Liberals Against Justice Reform Because Rich Corporations Also Benefit

Having so many laws means sometimes it's hard to prove people knew they were violating them.


There's money in federal regulations. Lots of it. American companies spend more than $2 trillion a year complying with federal laws. Firms spend tens of thousands of dollars per employee per year just trying to make sure they're in compliance with laws.

And there are so many of them. It's easy to break the law and not even know about it. People have written books about it. That's why, as part of this current push for criminal justice reform, activists want to require in more cases that mens rea be considered—that's the legal concept that in order for a person to be convicted of a crime, he or she must be shown to have known and have purposefully broken the law.

The Department of Justice does not seem to be in support of this particular reform. And they're fighting it by pointing out that requiring more federal laws to take mens rea into account would cover corporate entities and employees accused of crimes. That's the focus of the attack in a new story at The New York Times. Prepare for an invocation of the Kochs:

Mark V. Holden, general counsel and senior vice president at Koch Industries, acknowledged in an interview this week that the company's efforts to pursue revisions in federal criminal law were inspired in part by a criminal case filed 15 years ago against Koch Industries claiming that it covered up releases of hazardous air pollution at a Texas oil refinery. Those charges resulted in a guilty plea by the company and a $20 million penalty.

That case, Mr. Holden said, demonstrated that the Justice Department too often pursues criminal cases even when the accused had no criminal intent. The company itself discovered the problems and notified the authorities, he said, meaning the company did not knowingly violate the law.

A Justice Department spokesman on Tuesday rejected any suggestion that the criminal case against the company was unfounded.

"Koch Petroleum Group knowingly and voluntarily pleaded guilty to criminal violations of the Clean Air Act and to making false statements," the spokesman, Wyn Hornbuckle, said. "These admissions and the significant criminal liability in this matter speak for themselves."

So let's talk about "false statements," because that's part of the whole problem. In 2010, the National Association of Criminal Defense Lawyers and the conservative Heritage Foundation partnered up for a report titled "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law." The report showed that hundreds of proposed new federal criminal offenses didn't have an adequate mens rea requirement.

What does that mean for "false statements"? That doesn't mean that you have to be shown to be lying. It just means you have to be shown to be incorrect or mistaken. There's an example in the report: It's a felony to make a false statement in support of a Family Medical Insurance Program application. But there's no mens rea requirement, so any information that is incorrect is a felony, such as accidentally providing a wrong date of birth or work history dates.

This is behavior that the Department of Justice is defending. In the Times story, DOJ representatives talk about how it's all about holding people accountable for the most serious of crimes only. But note the language they use:

The proposed standard, Justice Department officials said, might have prevented guilty pleas in a variety of cases, such as the charges filed in 2013 against Jensen Farms of Colorado for failing to adequately clean cantaloupe, resulting in an outbreak of food-borne illness that was cited as a factor in at least 33 deaths. It also might have prevented the plea in the 2012 charges against the owner of a pharmacy who sold mislabeled, super-potent painkillers blamed in three deaths.

The same powers, officials said, have allowed the government to pursue charges against major corporations, like the 2011 conviction of Guidant, the giant medical device company, for failing to report safety problems with defibrillators, used to restart heartbeats. [Emphasis added]

The Department of Justice isn't even arguing that they will not be able to hold bad actors accountable for breaking the law. They're complaining that they'd actually have to go to trial for some of these cases rather than piling on every single offense they can find from the federal code in order to secure plea deals.

The cynical might suggest there's a bigger fear for mens rea reform at the DOJ. The federal government rakes in billions of dollars annually from fines via settlements, and those numbers have skyrocketed in the past decade. The ability for corporations to point to the increasingly complicated, impossible-to-navigate monolith of federal regulation and say "How are we supposed to know about all of this?" could put a gravy train out of commission.

(Disclosure: David Koch sits on the Board of Trustees for the Reason Foundation, which publishes this site.)

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  1. I miss Snidely.

    1. I miss Snively.

      I blame Bush.

      1. I blame Bush for Shreek. Without the dubyah, a shreek could not exist. I hate Boosh.

        1. My blame is well placed, then.

  2. Fucking slavers.

  3. mens rea would kill tax code violations if applied to it. The IRS can’t figure out what it’s own code means, and they would get murdered in court if they had to prove you knowingly violated it.

    1. they would get murdered in court


    2. Actually, they HAVE been murdered in court, whenever they have to prove it to a jury.

      That’s why they have their own private courts.

  4. I heard something about this on NPR this morning. Apparently there aren’t enough rich, white, corporate executives in prison so the reform isn’t justified. So what if there are so many laws that these rich, white, corporate executives can be break them without knowing they’re doing something that is against the law. By virtue of their being rich, white, corporate executives, they deserve prison. Even if the rich, white, corporate executives didn’t know they were breaking the law. They’re rich. They’re white. They’re corporate executives. Lock ’em up.

    1. Surely the government will only bring it’s iron boot down on the next of those wrong thinking people, so it’s all good.

      1. The problem with prisons in this country isn’t the sheer numbers of prisoners. It’s the proportion of blacks to whites. More specifically, the proportion of poor blacks to rich whites. Put more rich whites in prison and that makes it OK. Same thing with cops killing people. If cops killed more whites then it would be OK. The left, as always, totally misses the point.

        1. Well, pretty soon white kids will want to go to prison to get out of having to go to college, which will be the more cruel and unusual punishment. So it will all even out.

        2. They think that way because identity politics is one of the few things that trump the worship of government.

    2. I heard that. One of the people interviewed said something like “there isn’t an over-incarceration problem for white collar crimes”, as if you can make that judgement based simply on raw numbers. And as if unreasonable fines and other punishments aren’t also a possible problem.

      1. Anybody who answers that way is a fucking sociopath, sorry, full stop.

      2. Unreasonable fines and other punishment aren’t a problem because principals trump principles. What matters is who is affected, not anything silly like reasonableness.

      3. Judge: Well, since I gave the last white guy probation you get to go to prison.

    3. Apparently, decreasing the number poor nonwhites in jail is less important than increasing the number of rich whites in jail?

  5. The cynical might suggest there’s a bigger fear for mens rea reform at the DOJ.

    When law enforcement agents themselves have to research after the fact whether something is legal or not, we’re at the point that mens rea can’t possibly be taken into account. When you make so many acts criminal that you have to hire experts to know what’s legal or not, there are so many people made criminals by sheer ignorance that the criminal justice system would fall apart if you threw out all those charges.

    1. “… there are so many people made criminals by sheer ignorance that the criminal justice system would fall apart if you threw out all those charges.”

      A better argument for why it should be done has never been made.

    2. As Scott linked to above – Three Felonies a Day.

      Which is both horrific and amazing if you think about it. The average citizen violates 3 felony laws a day without knowledge of it. Anyone who can be aware of that and unconcerned about it has issues.

    3. “Did you really think we want those laws observed? We want them to be broken. … There’s no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kinds of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of lawbreakers – and then you cash in on guilt.” Dr. Ferris, a Ayn Rand villain from Atlas Shrugged

      “I find the prose purple and turgid, the plots hacknyed, the heros uninspiring and unlikely, and the author’s personal life unworthy of much to emulate. However, the villains in her novels are utterly completely dead on.” – thumbnail review of Ayn Rand’s novels by Mark Atwood

  6. “Koch Petroleum Group knowingly and voluntarily pleaded guilty to criminal violations of the Clean Air Act and to making false statements,” the spokesman, Wyn Hornbuckle, said. “These admissions and the significant criminal liability in this matter speak for themselves.”

    Why yes, yes they do. They just don’t say what you think they say Hornbuckle.

    1. Come to think of it, I am surprised the DOJ doesn’t require some kind of non-disclosure agreement as part of these pleas.

      1. I made a plea agreement with the SEC, once. Absolutely no criminal intent, but it was a civil matter, anyhow. Point being that there was a nondisclosure agreement as part of the deal.

    2. If there’s a badge and a gun involved in the process, nothing is really “voluntary.”

  7. “Show me the man, and I’ll show you the crime.”
    – Lavrentiy Beria, head of Joseph Stalin’s secret police

    This is what this country has become.

  8. What? Someone’s trying to convince liberals of something by saying it benefits the Kochtopus? No, it can’t be true. But seriously, convincing liberals of something because ‘Kochtopus!, BIG OIL! One percent!’, is hardly fair. It’s like giving a 3 year old a big jar of candy and trying to convince them that eating all of it is good for them. When their gubmint masters tell the liberals to goosestep it into the concentration camps, their only question will be ‘how high must we goosestep, oh great and benevolent leaders?’.

  9. a pharmacy who sold mislabeled, super-potent painkillers

    Mmmmmmmm my nose just started itching

  10. So, those tax forms the Clinton Foundation re-filed recently, the ones they “weren’t legally required to re-file, they just had some errors”….eh, at this point, wha….

    1. Some animals are more equal than others.

    2. Yah. How about, if you even want to play at this game, you start by charging EVERY SINGLE &(@!ing GOV’T EMPLOYEE who has lied to a federal agent, with the crime of the same name … I’d start with James Clapper, and work my way down from there. And up, too, why the hell not?

  11. Is it almost the holiday yet? Can I start drinking now?

    1. Hey, it’s a free country….

      1. It is? Damn, this last decade has just been a bad dream all along! Yeehawww, drank!

      2. Which country?

        1. The home of the triggered and the land of the aggrieved.

    2. I have.

  12. I think you’re getting confused about what mens rea means. Mens rea usually doesn’t mean that you have to know that an act is a crime. It means that you intended to do the acts and/or bring about the consequences that constitute the crime. So if I give you a pill really thinking that its Tylenol and it’s actually poison, I’m not guilty of murder. It doesn’t matter whether I know that murder is a crime or not.

    You seem to get this distinction when you’re talking about false statements, but you confuse it when you say things like “It’s easy to break the law and not even know about it.”

    There are some crimes where the government does have to show that you knew the act was illegal, but they are few and far between.

    1. Louisiana’s constitution clearly states that mens rea must be shown in all criminal trials. Of course very few people pay attention to that, but it is there.

      1. Good on LA! I mean, people have got to start actually applying that part of the law, but good on your state for someone getting that in writing.

    2. And then there’s Screws v US, that took the criminal provisions of the Civil Rights Act well beyond mens rea.

    3. So if you have a party in Florida and release one of your helium balloons, and get arrested, the fact that even most of the people who live in Florida don’t know releasing balloons is a felony should be irrelevant as you spend up to five years in prison?


  13. Good one Scott.

  14. Between this and Lynch just making shit up about arresting sex traffickers, I guess the DOJ should change its motto to “Protect and Serve the Narrative”.

    1. Who would be naive enough to think an Obumbles Justice Department would do anything other than serve the narrative. That has been his whole reason for existence.

    2. Wait until a Republican with that attitude comes into office?

  15. that’s the legal concept that in order for a person to be convicted of a crime, he or she must be shown to have known and have purposefully broken the law.

    So ignorance of the law can be an excuse?

    1. Only if you are a government employee…everyone else. Not so much.

  16. Prepare for an invocation of the Kochs:

    Scott, baby, when you link to the Ny Times, we’re never NOT prepared for an invocation of the Kochs.

    1. Nobody doesn’t expect the Koch invocation.

  17. Appropos of the story below, could there be a more obvious example of the government planting a story in a major media outlet than this one?

    1. The unsettling thing is, the NYT probably needs no extra incentive or priming to print pieces pimping progressive policies.

  18. funny to think the Koch brothers started their advocacy as a result of (and against) the policies of George Bush the lesser. It would be amusing to hear a lefty sputter when they heard that.

    Well, no… it probably wouldn’t be.

  19. When I first heard of mens rea and how it was disappearing, it surprised me; I had thought that was such an obvious component of doing something criminal. How can you possible be convicted of doing something which you did not know was harmful? Even if you were ignorant of the specific law, surely most people know it is wrong to hurt others, regardless of what actual laws might be broken.

    It seems to me, an ignorant lay person, like something grounded in centuries of common law. So how did it disappear from law?

    1. So how did it disappear from law?

      Having done absolutely zero research into this issue, the answer is almost certainly “drug war”.

      1. Let’s call it “crime war”. It wasn’t just “drugs=bad” that caused people to support easier convictions

    2. “Tough on Crime”

  20. mens rea would kill tax code violations if applied to it.

    That made me think of this:

    Lennie Pike: *Everybody* has to pay taxes!- Even businessmen, that rob and steal and cheat from people everyday, even *they* have to pay *taxes*!

  21. One of the people interviewed said something like “there isn’t an over-incarceration problem for white collar crimes”


    1. I’m glad “bankers” exist to take some of the heat off of attorneys.

  22. Nobody needs to make a profit

  23. So what’s your point Shackelford? We get it, you don’t want anyone to go to prison. Otherwise what is the point of this stupid article? You’re sticking up for the Kochs because they pay you off.

    1. Fuck off, troll.

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