The ACLU Hates Corporations More Than It Loves Civil Liberties

Mens rea could derail criminal justice reform.


Mens rea

The American Civil Liberties Union has discovered yet another civil liberty it isn't interested in defending: "mens rea," the notion that people can only be found guilty of crimes they were aware they had committed.

In principle, mens rea—Latin for "a guilty mind"—means the government must prove not only that a crime was committed, but also that the perpetrators knew they were breaking the law. In practice, this important component of due process has been ignored by federal and state lawmakers who have created numerous exceptions in the criminal code. Laws criminalizing sex with underage minors, for instance, often have no mens rea test: a person can be found guilty of having sex with a minor, even if he had every reason to believe the minor was of consenting age (even if, for instance, she lied and said she was older, as was the case for Zach Anderson).

One might expect the ACLU to cherish mens rea and advocate its application in more cases. If the government was universally required to prove that defendants understood the criminal nature of their acts, fewer people would be convicted. Fewer young, poor, and minority defendants would be railroaded for petty offenses, drug crimes, and zero tolerance weapons violations.

But the ACLU is at best indifferent—and in some ways, actively opposed—to stronger mens rea requirements. Why? Because mens rea makes it harder for the government to zealously prosecute corporations for white collar crimes.

Disagreements between conservatives and liberals on mens rea are threatening to undo the bipartisan criminal justice reform movement. Republican Rep. James Sensenbrenner's bill, the Criminal Code Improvement Act of 2015, is now opposed by some Democrats because it promotes mens rea. According to an op-ed by Yale University Law Professor Gideon Yaffe in The New York Times:

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling. The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes. Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm. Their opposition is a major stumbling block to passage of the larger bill. But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people.

The federal government, unsurprisingly, is vehemently opposed to mens rea. A White House official went so far as to tell The Huffington Post that mens rea would make it virtually impossible to convict a person of terrorism. The government's job is to put people in prison, and mens rea does in fact make that task more difficult. This is not a bad thing. The number of state and federal criminal statutes is unknowable—there are literally more laws than anybody can count. Being convicted of one of these hundreds of thousands of unknowable laws should require some basic realization on the part of the guilty person.

The ACLU could have taken a principled stance in favor of the view that all people—regardless of race, class, or economic status—are entitled to mens rea protections. It did not. The supposedly pro-civil liberties organization is uninterested in strengthening mes rea for the specific reason that rich people are its most likely beneficiaries (in the eyes of the ACLU). Executive Director Anthony Romero explains in a letter to The NYT:

The reality is that at present, we know little about how this reform would affect our laws. What we do know is that its passage will do little to help the vast majority of the 2.2 million people behind bars in America and those soon to be incarcerated.

Republican lawmakers who insist on making this issue a quid pro quo are likely doing so not out of concern for the lives, families and communities torn apart by our broken system, but rather to please white-collar and corporate polluter interests who stand to gain the most.

Advocates of all political persuasions working to bring meaningful criminal justice reform would do well to keep our eyes on the prize of getting meaningful legislation passed and not let mens rea become the poison pill for the solutions our country so desperately needs.

The ACLU's Jeffery Robinson made a similar argument against mens rea. The organization "does not support the bill, but Robinson says his organization is also not actively opposing it, on the grounds that some narrower version of mens rea reform could be productive," according to HuffPost. In other words, the ACLU would first have to be persuaded that mens rea would help the kinds of defendants with which the organization sympathizes.

"I think this is worse than opposing criminal justice reform because the Republicans are for it," wrote George Mason University Law Professor David E. Bernstein. "It's opposing criminal justice reform because the executive director of the ACLU doesn't care about the rights of a certain class of accused criminals."

The Competitive Enterprise Instiute's Hans Bader disputes the idea that mens rea is an especially tough burden for the government to meet in white collar crime cases:

"It is often easy to prove mens rea in financial, environmental, and regulatory crimes, because mere negligence is often considered adequate mens rea for these crimes (unlike traditional crimes, for which a higher mens rea is needed). No legislation that is being seriously considered by the House or Senate, or has passed any legislative committee would change that. (Indeed, it looks like reform legislation will not even change the controversial and draconian Park doctrine used to jail CEOs for conduct of subordinates that they did not know of or approve, or indeed, even tried to prevent).

But this shouldn't ultimately matter to a consistent civil libertarian. The civil libertarian view is that even despicable people deserve the same protections as everyone else. Just as the KKK is fully deserving of First Amendment rights—even though it uses those rights to engage in morally repugnant speech—so too are corporate CEOs deserving of full due process—even if due process makes it harder to prosecute them.

That's the civil libertarian position, but it's not the ACLU's position. One wonders what other rights would be on the chopping block if the ACLU determined that wealthy people were more likely to take advantage of them.