After the jump, a few quick thoughts on two recent items of discussion in the criminal justice news/commentary/punditry realm–1) federal mens rea reform, and 2) Bernie Sanders’s promise to reduce the U.S. prison population.

1. Federal mens rea reform

The New York Times ran an op-ed the other day on a bill currently before Congress that’s been getting a lot of attention, which purports to raise federal criminal law’s baseline mens rea requirement (“guilty mind” or what level of intent/knowledge must be proven in order to convict). In the op-ed, Yale law prof Gideon Yaffe argues that Democrats should support the bill because “it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities”–even those who are tried in state court. I don’t have a strong position on the bill itself, but I am not so optimistic that it will yield any particular benefits for “the poor and racial minorities,” for the following reasons.

First, some background. One debate you could have about this bill is whether it is even responding to an actual problem. News coverage of the bill has sometimes made it sound as though there are no mens rea requirements at all in federal criminal law. In reality, of course, many federal statutes do specify some intent or knowledge requirement, and when they don’t, federal courts do typically read some kind of knowledge requirement into the statute, certainly for serious crimes, as required by Morissette v. United States (1952). Last year in a case called Elonis v. United States, the Supreme Court restated the Morissette rule as follows:

Still, of course, maybe you think that the current welter of intent requirements are too low (or just too nebulous), or that intent requirements should be spelled out by Congress instead of left to judicial interpretation. However, insofar as you do think the bill responds to a real problem, I tend to agree with Orin Kerr that the proposed legislation would generate more confusion than it would resolve. Thus, I suppose the best argument to be marshaled in its favor is that it would give defense attorneys new ammunition to make various novel arguments about intent that would then still have to get litigated and resolved by courts, case-by-case and statute-by-statute. I’m not sure that would actually clarify anything, and it’s hard to predict whether, on balance, the resultant body of doctrine would be pro-defendant or pro-government, but sure, in the meantime, the possibility of these new avenues of litigation might yield benefits (or plea bargaining leverage) for federal criminal defendants, including those among them who are “poor and racial minorities.” Federal public defenders tend to be relatively well-funded (certainly relative to state public defenders), and I have no doubt that they could come up with some creative and possibly winning arguments should some version of this bill be enacted into law.

But back to the op-ed— Yaffe’s real argument in favor of federal mens rea reform is not that it would improve federal criminal law so much, but rather that it might inspire states to similarly revise their own criminal codes. Indeed, Yaffe’s primary examples of troubling cases–e.g. “a New York law banning ‘gravity knives’ … that lacks mens era protections”–come from state, not federal, law. Yaffe writes:

The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted. Ohio and Michigan have already passed mens rea reform laws. And in the wake of federal legislation, other states, including New York, would likely follow their lead.

It often seems to be assumed that state legislatures imitate Congress, but I am not sure why. Congress and state legislatures might pass similar legislation because they are responding to the same larger cultural/legal trends–or the pattern might even be backwards, with Congress imitating reforms first tried out in the states (which is certainly an alternative story you could tell in this instance, given the Ohio and Michigan legislation). These days, the main action in state legislating seems to be driven not by looking to Washington but by model legislation promoted by groups like ALEC (and sure enough, ALEC has a model “Criminal Intent Protection Act“). Now, it might be possible that, if Congress enacted this bill, state legislators would follow suit for that reason, i.e. because they see Congress’s stamp of approval as a reason to pass legislation they would not have passed otherwise, but I think it is misleading to suggest that this is “likely.” To the extent that states are already considering and, in some cases, have already passed mens rea reform, I would guess that it is not because they are following Congress’s lead, but rather because both state legislatures and Congress are responding to the same lobbying efforts on this issue by groups like Right on Crime and the Heritage Foundation.

2. Bernie Sanders

Bernie Sanders has taken to promising in debates that after his first term as president, the United States would no longer lead the world in its incarceration rate. In response, various participants in the “hot take” economy have pointed out that this promise is impossible, because the president simply doesn’t have that much direct control over the nation’s prisons–most prisoners are state prisoners, all sorts of legislative changes would be needed, etc., etc.

Obviously, I have no problem with puncturing politicians’ campaign promises (and certainly no problem with emphasizing the limits of federal policy, and the need for local/state changes, in the criminal justice realm), but it strikes me that some of these particular criticisms may be misunderstanding where Sanders is coming from. A standard leftish view of America’s prison problem is that mass incarceration has been used by capital as an outlet for labor displaced by deindustrialization (both in the sense that prisoners are people who would otherwise be unemployed, and in the sense that prison construction and jobs have been sold to rural towns as a substitute for factory jobs–notwithstanding that, in reality, prisons don’t tend to help local economies that much).

Now, there are various academic debates about all of this and a wide range of more specific views that people hold about how exactly capital, the state, and prisons all work together. But, if Sanders is operating (even in a vague sense) from something like a left-labor set of premises about mass incarceration, then his proposal to reduce the prison population may, in his view, be more a promise about macroeconomic outcomes than about criminal justice law and policy per se. In other words, I would guess he is not literally proposing to release millions of prisoners but rather thinks that reorienting the U.S. economy and welfare state around the needs of working-class people would alleviate some of the displacement caused by deindustrialization and, as a result, hydraulically start to generate reductions in the prison population over time. Of course, this could still be impossible (either in general or within the timeframe he’s proposing), and I also could be wrong to assume that he’s thinking about the issue in this way, but if I were a reporter or pundit, these are the kinds of mechanisms I would be asking about when interpreting this particular bit of campaign rhetoric–if not instead of, then at least in addition to the literal interplay between state and federal criminal justice policy.

All that said, my general view on campaign criminal justice rhetoric is that having a presidential candidate make overblown promises in this direction rather than in the direction of locking everyone up ad infinitum is a preferable new development.