OPINION:
Sen. Arlen Specter was no conservative, but he was a good friend who cared about the criminal justice system. In 2005, shortly after the Pennsylvania Republican rose to the chairmanship of the Senate Judiciary Committee, I suggested he meet with conservative criminal justice reform advocates at The Heritage Foundation to explore areas of potential collaboration. To his credit, he asked me to put together a meeting with Reagan administration Attorney General Edwin Meese and others.
Specter was concerned with the proliferation of federal criminal penalties that could be imposed on citizens who didn’t have any notice that the law they were breaking even existed. At the time, Heritage analysts were cataloging laws and regulations that carried criminal penalties but lacked the requirement that those charged with violating them had to have had what lawyers call “mens rea.” “Mens rea” is Latin and means that one who breaks a law must have “a guilty mind” or an intent to break it. It was estimated that more than 4,000 such laws and regulations existed at the time. In a recent testimony before Congress, George Washington University law professor Jonathan Turley put the number at more than 5,000.
Traditionally, the courts required an act and proof of the lawbreaker’s intent to impose criminal penalties. If the lawbreaker doesn’t know the law exists, it is difficult to find intent or anything approaching “a guilty mind.” Our lawmakers got around that traditional requirement by eliminating the finding of “mens rea” to convict those accused of violating thousands of laws and regulations.
Why we need thousands of criminal strictures on our citizens is a different topic, but as Specter noted at the Heritage meeting, many and perhaps most of the sloppily written criminal sanctions never went through the Judiciary Committee. They were tacked on in other legislative committees and became law without much thought about whether a “mens rea” requirement should have been attached to them.
A partial solution, he said, would be for his committee to demand that legislation containing criminal sanctions coming out of, say, the commerce committee be sequentially referred to the judiciary for examination. Specter was willing to demand this, but his committee became bogged down in fights to confirm controversial judges during the George W. Bush era.
Specter wasn’t the only senator alarmed by the exponential growth of such laws and regulations. In 2018, six years after the Pennsylvanian’s death, Republican Sens. Orrin Hatch of Utah and Chuck Grassley of Iowa introduced legislation to require a “mens rea” requirement for most existing and future federal laws and regulations. The Mens Rea Reform Act of 2018 would have accomplished much of what Specter had sought more than a decade earlier. The bill drew bipartisan support but failed because emerging Democratic liberals thought it would make it harder to convict people they didn’t like and wanted behind bars.
Since then, things have worsened. However, President Trump surprised the criminal justice reform world on May 9 with an executive order accomplishing what Specter and Hatch had sought. The order requires transparency and imposes reasonable “mens rea” requirements on future laws and regulations. It also orders federal government agencies to catalog and reform the laws and regulations already in existence.
Mr. Trump’s order was clear: “The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.”
Henceforth, the government policy will be that the “prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm. Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.”
Bingo. Mr. Trump has managed, via executive order, to require common sense from bureaucrats, prosecutors and perhaps even legislators, something senators such as Hatch, Grassley and Specter fought for more than 20 years to accomplish, and he did it with the stroke of a pen.
Not a bad day’s work.
• David Keene is editor-at-large at The Washington Times.
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