As the GOP-controlled Congress drafts a major criminal justice reform package to unshackle millions of poor and people of color from a predatory legal system, House Republicans are ensuring that corporate America also will get what it wants: tougher legal hurdles for prosecutors to go after white-collar crimes.
An early draft of one bill in the House Judiciary Committee’s package of reforms would raise the legal threshold needed to prove a person committed a white-collar offense. In most instances today, a person cannot claim he didn’t know what he was doing was illegal. But the House’s proposal would require government to “prove that the defendant knew, or had reason to believe, the conduct was unlawful.”
“The House language violates the basic precept that ‘ignorance of the law is no defense,’” Robert Weissman, the president of Public Citizen, told the Huffington Post. “There is absolutely no reason for the otherwise laudable criminal justice reform bill to contain any measure to weaken already feeble standards for corporate criminal prosecution.”
Actually, in the ways Washington works, there is every reason to expect that the GOP would include pro-corporate fine print in the reform package. This is legislation both parties want passed before the 2016 elections. Meanwhile, right-wing think tanks funded by corporate titans such as the anti-regulation Koch brothers have been doing what they’re paid to do—issuing papers urging Congress to toughen the requirements to get a white-collar conviction.
They argue, much like the civil rights community, that prosecutors have too much power and too readily abuse it. However, a key distinction between the racial justice agenda and the corporate agenda is that civil rights activists are primarily focused on police and prosecutorial abuses of the criminal justice codes, whereas the corporate community is primarily focused on government regulations of industry. They are shrewdly saying that people who make mistakes should be punished, but by fines or other penalities—not criminal convictions that last a lifetime.
“Some people or entities intentionally pollute our air and water or intentionally engage in other conduct knowing it will cause harm, in which case criminal prosecution may be entirely appropriate,” John Malcolm, Heritage Foundation’s judicial and legal studies director, wrote this fall. “However, if somebody or some entity unwittingly does something that results in harm, say, to the environment or to another person, there is no reason why it cannot be dealt with (even harshly) through the administrative or civil justice systems. This would help to remedy the problem and compensate victims without saddling morally blameless individuals and entities for life with a criminal conviction.”
Malcolm’s paper and argument reviews a range of varying standards of proof that would be required for a conviction. They range from the toughest on perpetrators to the loosest, starting with a person could be accused of “negligently” commiting a crime. The spectrum continues with “recklessly,” “knowingly,” “intentionally,” and finally, “willfully."
Making it harder for prosecutors to obtain convictions by changing the standard of proof required for governmental action is a strategy seen in many right-wing political fights. That tactic was exactly how the conservatives on the U.S. Supreme Court gutted the Voting Rights Act—they changed and raised the standard of proof that would justify federal intervention in new state laws curbing voting rights.
Thus, it’s notable the GOP-led House Judiciary Committee’s legislative draftsmen chose the standard that seems to be in the middle of the sprectrum presented by Malcolm, as that seems reasonable, However, in practice, it lets many would-be corporate lawbreakers to escape prosecution.
“Will some senior corporate management 'fat cats' benefit because strictermens rea [Latin for guilty mind] requirements make it more difficult to prosecute them successfully? Possibly,” Malcom writes, answering the question he raises, before quoting another Heritage Foundation legal paper. “Corporate directors, chief executive officers (CEOs), presidents, and other high-level officers are not involved in the day-to-day operation of plants, warehouses, shipping facilities, and the like. Lower level officers and employees, as well as small business owners, bear that burden.”
It remains to be seen if this new standard of proof will remain in the legislation as it makes its way through the House and Senate, but the chances are good that it will. Peter Carr, a spokesman for the U.S. Department of Justice, told the Huffington Post that this proposal, should it become law, would seriously undermine white-collar prosecutions.
It “would create confusion and needless litigation, and significantly weaken, often unintentionally, countless federal statutes,” including “those that play an important role in protecting the public welfare... protecting consumers from unsafe food and medicine,” Carr said.
“Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations,” Heritage wrote. “Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist. Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.”