Amid a fairly depressing Congressional session characterized by gridlock and demagoguery, Democrats and Republicans managed to find common ground on the unlikely issue of mass incarceration.
This would have been unthinkable just a few years ago, given the dominant rhetoric of being “tough on crime.” But over the last decade, states like Texas, South Carolina, Georgia and others have all instituted policies aimed at reducing prison populations. Organizations as varied as the ACLU and the Koch Brothers took a leadership role in bringing such initiatives to the national stage. Democrats emphasize the social costs of warehousing millions of citizens; Republicans highlight the financial costs. But they both recognize that the status quo is untenable.
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The House Judiciary Committee this week finalized a bipartisan criminal justice reform package, with a level of cooperation unseen on other issues. The bills include a provision to end the “three strikes” rule of life imprisonment for those who commit three federal nonviolent drug crimes. They give judges flexibility to alter mandatory minimum sentences, and clean up other parts of the criminal code to remove outdated statutes. They provide resources to deal with inmate mental health problems, encourage alternative sentencing and implement community supervision support.
But there was one problem: The package also includes a measure that critics believe would make it harder to prosecute white-collar criminals.
It’s not like we have a problem with runaway prosecutions of corporate executives; if anything it’s the opposite. Practically nobody went to jail for the actions that triggered the financial crisis. The bigger problem we have is the wave of deferred prosecutions for criminal conduct. And after years of failure, the Justice Department is scrambling to prove to the nation that it is serious about corporate accountability.
But the House’s back-door effort to immunize the executive suite furthers the suspicion that we have a two-tiered system of justice. Even when you try to balance the scales a bit for poor and vulnerable populations, the wealthy and well-connected have to get a gift, too.
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H.R. 4002, “The Criminal Code Improvement Act,” contains the controversial provision. The bill, written by Republican James Sensenbrenner of Wisconsin, is among six that the House Judiciary Committee advanced on Wednesday. The meat of the bill comes in Section 11, proposing a “default state of mind proof requirement in Federal criminal cases.”
This would force prosecutors to prove that a white-collar criminal suspect knew their conduct was unlawful, meaning that prosecutors must produce evidence that effectively peers into the mind of the offender. “The House language violates the basic precept that ignorance of the law is no defense,” said Public Citizen President Robert Weissman in a statement, “and may offer corporations and company executives an ‘ignorance of the law’ defense.”
The Obama administration has condemned this effort. Even the Justice Department, not exactly a trailblazer in white-collar enforcement, vocally opposed the bill, arguing that it would “significantly weaken, often unintentionally, countless federal statutes,” including charges based on recklessness or gross negligence.
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As Occupy the SEC points out, we already have serious hurdles to piercing the “corporate veil” by untangling the layers of management and reaching those ultimately responsible for fraud and abuse. Adding additional burdens of proof could push prosecutors to not bother to pursue otherwise winnable cases.
At the House Judiciary Committee markup, Democrats John Conyers of Michigan and Sheila Jackson Lee of Texas, co-sponsors of the bill, acknowledged that this legislation could make it harder to hold executives accountable when their firms commit environmental, food safety or financial crimes. But the bill passed anyway by a voice vote.
This is not an even trade. Nonviolent drug offenders are getting some more flexibility in their sentences, but for the most part they’re still getting sentenced. For white-collar executives, this changes the law to effectively decriminalize their conduct by raising the burden of proof.
And of course, making it easier to get away with corporate fraud would give companies free rein to target the very communities already hammered by mass incarceration. Want to sell a dodgy loan or pollute an underprivileged area? No problem, Congress fixed it so no individual would be held responsible.
It’s not clear yet how this bill got intertwined with the otherwise laudable effort at criminal justice reform. But we can take a guess. Some wily corporate lobbyists figured they could appropriate a bipartisan issue and help their clients. They convinced Republicans, who probably didn’t need much convincing. And Democrats, the minority party in Congress, would have to choose between scrapping reforms to the system that would aid their communities and accepting corporate decriminalization as the price to pay.
That’s a cruel choice. Congress doesn’t have to attach a benefit for the rich every time we reverse an injustice for the poor. It contributes to cynicism about politics, raising questions over why powerful forces like the Kochs have become so interested in criminal justice reform. Was it all about getting their friends in the country club an immunity badge?
We’re a long way from equalizing treatment from the justice system for the rich and the poor. But that doesn’t make this little sneak attack any less obnoxious. Let’s hope the White House’s opposition stops it cold.
