Lawmakers Hijack Criminal Justice Reform With Plan To Immunize CEOs From Many Laws

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Lawmakers Hijack Criminal Justice Reform With Plan To Immunize CEOs From Many Laws

It’s a cliché that ignorance of the law does not excuse violations of it. If you break into someone’s home and steal their television, you won’t escape a jail sentence by claiming that you did not know that burglary is illegal. A bill that passed the House Judiciary Committee on Wednesday, however, would change this rule — at least with respect to many crimes that target corporate executives.

The Criminal Code Improvement Act includes several tweaks to federal criminal law and procedure, including a federal standard governing the insanity defense and definitions to terms such as “crime of violence” or “petty offense.” Tucked within the bill, however, is a provision that could effectively immunize many high-ranking corporate executives from various laws prohibiting criminal conduct in areas ranging from pollution to consumer safety to financial fraud.

The issue is what’s known as “mens rea.” As a general rule, most crimes require the government to prove that a defendant acted with a certain state of mind in order for them to be convicted of a particular crime. A person who fatally shoots their neighbor with the intent to kill has committed murder. A person who accidentally discharges the same firearm while cleaning it, killing the neighbor in a fatal accident, has most likely still committed a crime, but it will probably be a much less serious crime than murder.

In some cases, a particular act is considered criminal if the defendant acted negligently or recklessly when they committed the crime — even if the perpetrator did not intend to cause harm. A person who drives their car at three times the speed limit through a densely populated neighborhood may not have intended to kill the child that they strike, for example, but they most likely can still be convicted of a homicide crime. In other cases, a criminal statute may require the government to prove that the person knew that their actions would lead to certain results, or even that they desired a criminal result.

Notably, however, the fact that a criminal statute requires the government to prove that a defendant had “knowledge” that their actions would produce a certain result does not mean that they have to prove that the defendant knew that their actions were prohibited by the criminal law. As a general rule, one cannot assert their own ignorance of the law as a defense from conviction.

Many federal laws, it should be noted, do not specify the mens rea prosecutors must prove in order to obtain a conviction. In some cases, this is because Congress determined that certain actions should be illegal regardless of the perpetrator’s state of mind. In other cases, courts or regulatory agencies may fill in the gaps, holding that the government must prove negligence, recklessness or perhaps even actual knowledge in order to obtain a conviction.

The Criminal Code Improvement Act, however, provides that if a federal criminal law does not explicitly state what the mens rea is for a particular crime, then “the state of mind the Government must prove is knowing.” It then includes a very odd provision which would make ignorance of the law an excuse in many cases. “If the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.”

These provisions would significantly alter the balance of power in many white collar criminal prosecutions, and immunize corporate executives from many prosecutions altogether.

In some cases, it is desirable for corporate executives to be accountable for wrongdoing committed by the company that they oversee, because this accountability gives them an incentive to discover such wrongdoing and eliminate it. A default rule requiring actual knowledge of such wrongdoing would create the opposite incentive for corporate executives. That is, if they conducted an investigation that uncovered illegal activity within their company, that would actually increase the likelihood that they would face a criminal conviction. Ignorance would not simply be bliss, it would also be a defense in federal court.

The requirement that “the Government must prove that the defendant knew, or had reason to believe” that conduct is unlawful could similarly discourage executives from learning what the law requires of them and their company, as they would be more likely to escape prosecution if they were ignorant about the law. It could also significantly increase the cost to the government of prosecuting white collar crime, as the criminal law typically does not make ignorance of the law a defense, and prosecutors are likely to be unsure how exactly to prove such an element of a crime. Many white collar prosecutions are likely to be abandoned because prosecutors are too unsure that they can clear this unusual bar.

The mens rea provision enjoys the strong backing of well-funded conservative groups, including the Heritage Foundation and several organizations funded by the billionaire Koch brothers.


This has been reposted from Think Progress.

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.