The bipartisan effort to overhaul the criminal justice system for drug offenders has hit a speed bump.
Some members of Congress are trying to tie those lighter punishments for drug defendants to a new bill that the Justice Department says would make it harder to prosecute a range of crimes from food safety to business fraud.
The plan, passed by voice vote by the House Judiciary Committee to little notice last week, would require prosecutors to prove guilt to a higher standard in many cases, by default.
Among those who object: Deputy U.S. Attorney General Sally Yates.
“It would end up meaning that some criminals would go free as a result, because we simply would not be able to meet that standard of proof,” Yates told NPR in an interview. “If this proposal were to pass, it would provide cover for top-level executives, which is not something we think would be in the best interest of the American people.”
The White House had a shorter response: “In the president’s view, criminal-justice reform should only make the system better, not worse.”
For supporters, including Judiciary Chair Rep. Bob Goodlatte, R-Va., the measure is a common sense response to the huge number of criminal laws on the books.
“This is a very carefully crafted bill,” Goodlatte said during a committee markup last week. “Its intent is … to protect American citizens who did not know or have reason to know they were violating federal law.”
Goodlatte calls that over-criminalization. His committee has held a series of hearings on the issue, focusing attention on cases of fishermen who faced federal criminal penalties for paperwork violations, among others.
The idea of requiring prosecutors to prove a defendant intended to break the law gets a lot of support, in theory. The National Association of Criminal Defense Lawyers has been pushing for changes. And Vikrant Reddy, a senior fellow at the Charles Koch Institute, which studies criminal justice, said the case for an overhaul is “clear-cut.”
“There’s this old quote from the guy who was the head of Stalin’s secret police,” Reddy said. “He said, ‘find me the man and I’ll show you the crime,’ because we had so many crimes on the books that you could get anybody on anything so long as you looked hard enough.”
For the Obama administration, which has made overhauling the justice system a top priority, the new bill on criminal intent represents a get-out-of-jail free card for many defendants, especially businesses and corporate officials who distribute fruit, vegetables and medicines that are contaminated.
But some lawyers following the sentencing proposals as they move through Congress said they don’t have enough information about the new bill on criminal intent. Amit Narang of Public Citizen, a nonprofit advocacy group, said with public confidence in the government’s ability to investigate Wall Street executives at a low ebb, now is not the time to “undermine” efforts to hold them accountable.
Jeffery Robinson, of the American Civil Liberties Union, said the ACLU is taking no position on the bill.
“Our view is the people who want this bill passed should make a list of the statutes that this bill would impact so that people can see what statutes we are talking about,” Robinson said.
He said adding criminal-intent provisions to a spate of justice overhaul proposals moving on Capitol Hill could endanger the broader effort to dial back tough mandatory prison sentences imposed during the war on drugs. Robinson said there’s a string of research about the costs of incarceration and the disproportionate impact on African-Americans and Hispanics.
For instance, Pew Charitable Trusts has issued a new report concluding that federal prison time has surged since 1988, with time served by drug offenders who make up about half of the prison population rising more than 150 percent.
“As far as I know, and I’ve been a defense lawyer for 34 years, there is no problem of over-incarceration for rich, white financial or environmental executives,” Robinson said.
He said he’s not opposed to helping those white-collar defendants, by any means, but in the absence of more information, he’s not sure they have a problem Congress needs to solve.