November 2, 2016 | Legal Memorandum on Legal Issues
In a debate over how we define crimes, whom we send to prison, how long we send them there, and what we do with them while they are incarcerated, Congress should look to the states for seven examples of reform. A number of states—those laboratories of democracy—are leading the current push for genuine reform that does not involve issuing get-out-of-jail-free cards to those deserving of punishment. The federal government would be well-served by looking to the modest, measured pieces of legislation states have crafted to battle overcriminalization and enact effective criminal justice reform.
Current debates over criminal law and punishment—including “how we define crimes, who we send to prison, how long we send them there, what we do with them while they are in prison, and what we do with them once they are released”—are not new. Before the states were even formed, American colonists struggled to define crime and exact just punishment. While punitive incarceration was rare in the colonies, offenders were publicly whipped or displayed in stocks, and faced the prospect of hard labor or huge fines. Suggestions that we have not progressed towards a fairer system since that time likely do not account for “water tests” for the crime of witchcraft.
Today we have our own set of perils, such as overcriminalization—the “misuse and overuse of criminal laws and penalties to address societal problems” —that have lawmakers considering those old debates anew. Broad bipartisan coalitions have formed and are now pressing for various legislative reforms to the criminal justice system at all levels of government. While federal legislators are currently debating the merits of several relevant bills, state lawmakers are miles ahead, having already adopted a number of criminal justice reform bills that hold great promise.
Anglo-American law traditionally marked an individual as a criminal “only if he or she committed a morally blameworthy act,” known as an “actus reus,” “along with an ‘evil’ frame of mind,” known as a “mens rea.” Today, legislators often omit the intent element entirely in criminal legislation, or incorporate weak mens rea requirements that offer little protection to persons who unwittingly violate the law. It might be hard to sympathize with their plight were it not for the fact that the federal, and some state, criminal codes contain a plethora of “complex ‘administrative’ offenses” that “authorize criminal penalties for actions that a regular person would not know are illegal.”
On December 22, 2015, Michigan Governor Rick Snyder approved a law that passed unanimously through the legislature, which creates the presumption that when a criminal law does not specify a “culpable mental state,” prosecutors must prove a defendant acted “purposely, knowingly or recklessly.” This presumption would not apply if a law explicitly establishes a “strict liability” standard, or to a drug crime or other offense “listed in the state penal code, which cover[s] actions that reasonable people already recognize as wrongful or know are illegal.” The Ohio House and Senate also unanimously passed a bill, signed into law by Governor John Kasich on December 19, 2014, which requires lawmakers to assess the state’s criminal code before passing new criminal legislation and to specify a mens rea in any new criminal laws (or else explicitly state that intent is not necessary for proof of conviction); the law also provides that a default standard of “recklessly” should be applied to existing criminal offenses that fail to specify a mens rea requirement.
A number of criminal statutes remain on the books long after the problems they were designed to address have ceased to exist. Such statutes’ continued existence can lead to selective prosecution, or targeting conduct different from what lawmakers sought to deter, against an unsuspecting individual by an overzealous prosecutor. Some state legislatures have tackled the problem of excess criminal provisions accumulating in the state code over the years by identifying and repealing any that are outdated or unnecessary. For example, in 2015, the Michigan House and Senate unanimously passed a bill, which was signed into law by the governor, repealing laws making it a crime to:
Only legislatures can repeal their own laws. If a law lingers after its reason for being has died, then common sense dictates that the legislature should exercise that power.
With the overwhelming number of criminal laws on the books today, it is perhaps inevitable that some are not written clearly enough for the average person to understand what they mean. Yet, the Constitution requires lawmakers to draft criminal statutes in “common language that the world can understand,” because it is patently unfair to subject somebody to criminal liability after the fact if that person could not reasonably have predicted ex ante that the statute would apply to his or her conduct. Texas, for example, chose to address this problem by enacting a law stating that:
A statute or rule that creates or defines a criminal offense or penalty shall be construed in favor of the actor if any part of the statute or rule is ambiguous on its face or as applied to the case, including: (1) an element of offense; or (2) the penalty to be imposed.
This “rule of lenity” guides judicial interpretation of criminal statutes and instructs a court to follow the reading most favorable to the defendant to ensure that “no one is held accountable for violating a law ‘whose commands are uncertain’ or ‘subjected to punishment that is not clearly prescribed.’” In addition to Texas, Florida has now codified the rule of lenity to ensure uniform application. Other states are considering following suit.
Anglo-American law has long held that ignorance or mistake of a criminal law is not a defense to criminal liability. That rule made a great deal of sense when there were far fewer criminal laws, and those that existed proscribed conduct that everyone knew was inherently wrong. In recent years, however, overcriminalization has begun “ensnar[ing] average citizens for committing acts that are not morally blameworthy and that most people would not know are crimes,” and thus provides a reason to reconsider this old maxim.
To “exculpate morally blameless parties without creating a loophole for miscreants,” some states have codified various forms of a so-called “mistake of law” defense. New Jersey law, for example, provides that ignorance of the law may be a valid defense “if the defendant reasonably arrived at the conclusion underlying the mistake” and the mistake negates the mens rea of the offense. This modest law shields from criminal liability only a defendant who “diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.” Enabling courts to distinguish blameless from blameworthy defendants and punish only the latter fulfills society’s dual interests in law enforcement that is strong and just.
Federal lawmakers, and many of their state counterparts, have enacted mandatory minimum sentencing schemes to provide judges with uniform sentencing laws that apply for different categories of offenses. Those laws carry many benefits, including general deterrence, incapacitation, retribution, fairness imposing uniform sentences for the same offenses, and, depending on how severe the penalty is, there is arguably a good deal of utility in supplying prosecutors with some leverage to negotiate plea bargains—sometimes in exchange for valuable information from a defendant against other wrongdoers. Still, some states have seen fit to pass laws addressing the manifest injustice that occasionally arises from the rigid, unwavering application of mandatory minimum penalties. The North Dakota legislature, for example, unanimously passed legislation in 2015 that authorizes courts to deviate from mandatory minimums where the set punishment would cause a “manifest injustice.” That is defined as “a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable individual, with due consideration of the totality of circumstances.” Under this law, such relief is unavailable to certain offenders, including those sentenced for an armed or violent offense.
Providing a limited degree of judicial discretion in criminal sentencing for certain categories of non-violent offenders “could ameliorate some of the extremely harsh sentences that … courts have imposed without taking a bite out of the efforts that the government has made over the past four decades to improve public safety.”
Earned-time, or good-time, credit programs enable qualified corrections officials to reward individuals with early prison release if they successfully complete productive programs—like G.E.D., college coursework, or professional certifications—that impart skill sets and reduce the risk of recidivism, or to reward compliance with correctional rules, respectively. New Hampshire expanded use of earned-time credit by authorizing the commissioner of the department of corrections to grant or recommend one-time earned credits of 60–180 days upon successful completion of various programs such as GED (90 days); Associate’s degree (180 days); Bachelor’s degree (180 days); Vocational program (60 days); Mental health or rehabilitation program (60 days); Participation in Family Connections Center program (60 days). These earned-time credits are available to “prisoners while in the least restrictive security classifications of general population and minimum security”; do not exceed 13 months in accumulated reduced sentence time; and are forfeited for “involvement or membership in a security threat group, attempted escape, escape,” or for violating certain correctional policies.
Several state legislatures are also reconsidering some of the many collateral consequences of a criminal conviction that exist in the states. Certain convictions can impact individuals long after a term of imprisonment or probation has ended, limiting the ability of released offenders to become productive, law-abiding citizens. In Oklahoma, for instance, the state House voted 63 to 31 and the state Senate voted 43 to 1 to limit “the circumstances in which a professional license can be denied, revoked, or suspended” due to a felony conviction to those in which the conviction occurred within five years of the license application, and the crime that the offender committed is “substantially related to the profession at issue, or pose[s] a reasonable threat to public safety.” The new law applies to released offenders who seek licenses to engage in the following professions:
Architecture; landscape architecture or interior design; cosmetology; engineering or land surveying; athletic training; real estate appraisal; physical and occupational therapy; psychology; speech-language pathology or audiology; behavioral health counseling; and pawn-brokering.
While there are many good reasons to bar certain past offenders from obtaining particular jobs (released pedophiles should not be permitted to work with children, for example), individuals who have committed a crime and “done the time” should not be denied economic opportunity on the basis of a past offense if the reason to do so is arbitrary or irrational. This is just one of an overwhelming multitude of collateral consequences that exist across the states, and many may well be worthy of review.
The reforms discussed herein are far from an exhaustive list of state criminal justice reform measures that have been enacted recently. As many legislators, judges, scholars, and journalists have pointed out, criminal justice reform enjoys broad bipartisan support. Many of these reforms are modest, measured pieces of legislation designed to address specific problems that have grown and become more apparent over time, proving that states can be both tough and smart on crime, and that criminal justice reform does not involve issuing get-out-of-jail-free cards to those deserving of punishment. With a renewed focus on some of the excesses and inequities of America’s current criminal justice system, there is cause for continued optimism on criminal justice reform in the state legislatures and the U.S. Congress.—John-Michael Seibler is a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
 John G. Malcolm, Testimony Before the Tennessee Senate Judiciary Committee, Criminal Justice Reform: Suggested Changes for Tennessee, (Sept. 16, 2014), http://www.heritage.org/research/testimony/2014/10/criminal-justice-reform-for-tennessee. Such debates in fact predate even the British colonies. After Spanish admiral Pedro Menendez de Aviles founded the first Western settlement in North America at St. Augustine, Florida in 1565 (See Eugene Lyon, Pedro Menéndez’s Strategic Plan for the Florida Peninsula, 67 Fl. Hist. Q. 1 (Summer 1988)), his soldiers built the first prison in North America by 1570. Scott Christianson, With Liberty for Some: 500 Years of Imprisonment in America 6 (1998).
 When King Charles I of England issued the 1629 Massachusetts Bay Colony Charter, it authorized “Impositions of lawfull Fynes, Mulcts, Imprisonment, or other lawfull Correction,” augmented with colonial jails by 1635. Christianson, supra note 1, at 41.
 See Id.; The Social History of Crime and Punishment in America: An Encyclopedia (Wilbur R. Miller, ed. 2012); Harry Elmer Barnes, Historical Origin of the Prison System in America, 12 J. Am. Inst. Crim. L. & Criminology 35 (1921) (describing various penal codes and criminal punishments in colonial America). Incarceration as punishment became common practice only after the American Revolution, and was soon met with serious political opposition. New York politician and merchant Thomas Eddy wrote, for example, “The mild voice of reason and humanity, reached not the thrones of princes or the halls of legislators”; who revived from old English law “the predominance of archaic and punitive laws that only served to perpetuate crime.” David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic, 58 (2011); Mitchel P. Roth, Crime and Punishment: A History of the Criminal Justice System 23–24 (2010).
 4 The Statutes of the Realm, King George III pt. 2, ch. XII, *1,028–1,029 (making it a crime to “use, practice, or exercise [of] any witchcraft, enchantment, charm or sorcery.”). Consider Grace Sherwood’s criminal trial for witchcraft by “water test”: Grace was bound and thrown into water to be found guilty and put to death if she floated, and found innocent if she did not. See Monica C. Witkowski, Grace Sherwood (ca. 1660–1740), in Encyclopedia Virginia (Jan. 1, 2014), http://www.EncyclopediaVirginia.org/Sherwood_Grace_ca_1660-1740.
 John G. Malcolm, The Pressing Need for Mens Rea Reform, Heritage Foundation Legal Memorandum No. 160 (Sept. 1, 2015), http://www.heritage.org/research/reports/2015/09/the-pressing-need-for-mens-rea-reform.
 John G. Malcolm, Testimony Before the House Judiciary Committee on the Over-criminalization Task Force, Defining the Problem and Scope of Over-criminalization and Over-federalization, (June 14, 2013), http://www.heritage.org/research/testimony/2013/06/defining-the-problem-and-scope-of-overcriminalization-and-overfederalization; Rebecca Silber et al, Justice in Review: New Trends in State Sentencing and Corrections 2014-2015 (May 2016), http://www.vera.org/pubs/state-sentencing-and-corrections-trends-2014-2015 [hereafter, Vera].
 This includes the American Bar Association, former leaders within the Department of Justice, a sizeable corps of professors and journalists, community stakeholders, and a diverse bloc of think tanks and other organizations. See Paul J. Larkin. Jr. & Michael B. Mukasey, The Perils of Overcriminalization, Heritage Foundation Legal Memorandum No. 146 nn. 1–5 & accompanying text (Feb. 12, 2015).
 See, e.g., The Clean Up the Code Act of 2015, H.R. 4023, 114th Cong. (2015); The Regulatory Reporting Act of 2015, H.R. 4003, 114th Cong. (2015) (as reported by committee on Nov. 18, 2015); The Smarter Sentencing Act of 2015, S. 502, 114th Congress (2015).
 Paul J. Larkin, Jr., et al, The Supreme Court on Mens Rea: 2008–2015, Heritage Foundation Legal Memorandum No. 171 (Jan. 14, 2016).
 2015 House Bill 4713: Require “culpable mental state” for criminal conviction, Public Act 250 of 2015, MI Votes (2015), http://www.michiganvotes.org/Legislation.aspx?ID=169833. For that reason, in 2015, Michigan lawmakers “establishe[d] that if a law does not indicate whether a ‘culpable mental state’ (‘mens rea’) is required to establish guilt, the presumption will be that this is required, meaning that prosecutors must show that the defendant violated the law ‘purposely, knowingly or recklessly.’” Id. See also Malcolm, supra note 5.
 Patrick McGreevey, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, L.A. Times (Oct. 3, 2015), http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-restricting-hobbyist-drones-at-fires-schools-prisons-20151003-story.html.
 Paul J. Larkin, Jr. & John-Michael Seibler, Time to Prune the Tree: The Need to Repeal Unnecessary Criminal Laws, Heritage Foundation Legal Memorandum No. 173 (Feb. 25, 2016) [hereafter Prune the Tree].
 MI House Fiscal Agency, Legislative Analysis, Revisions & Repeals of Outdated Laws (2015), http://www.legislature.mi.gov/documents/2015-2016/billanalysis/House/pdf/2015-HLA-4248-9FE0E3D5.pdf.
 See Prune the Tree, supra note 15.
 Nearly 5,000 criminal statutes and an estimated 300,000 or more criminal regulations exist at the federal level alone. Heritage Foundation, Overcriminalization (2016), http://solutions.heritage.org/constitutionalism/overcriminalization/.
 McBoyle v. United States, 283 U.S. 25, 27 (1931).
 Tex. Gov. Code Ann. § 311.035 (2015) (for legislative remarks, see Tex. House Research Org., H.B. 1396 bill analysis (May 11, 2015).
 See, e.g., Paul J. Larkin, Jr. & John-Michael Seibler, Turning the Rule of Lenity Into a Rule of Lenity, Heritage Foundation Legal Memorandum No. 163 (Nov. 17, 2015).
 Id. (citing United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion)).
 See Fla. Stat. § 775.021 (2000); Ohio Rev. Code Ann. § 2901.04(a)(2002); NV S.B. 265 (2013); Larkin & Seibler, supra note 22.
 Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725, 726–27 (2012).
 Paul J. Larkin Jr., Fighting Back Against Overcriminalization: The Elements of a Mistake of Law Defense, Heritage Foundation Legal Memorandum No. 92 (June 12, 2013).
 See N.J. Code Crim. Justice § 2C:2-4 (1979). This has been considered by the state courts to be “an attack on the prosecution’s ability to prove the requisite mental state for at least one objective element of the crime.” State v. Sexton, 160 N.J. 93, 99-100 (1999).
 N.J. Code Crim. Justice § 2C:2-4 (1979). For comparison, Missouri’s more limited mistake or ignorance of law defense may apply where the defendant reasonably did not know his conduct was illegal and the law that he or she violated had not been made reasonably available. Mo. Rev. Stat. § 562.031.2, http://www.moga.mo.gov/mostatutes/stathtml/56200000312.html.
 See Meese & Larkin, supra note 25.
 See John G. Malcolm, Testimony before the House Committee on Oversight and Government Reform, Criminal Justice Reform, (July 15, 2015), https://oversight.house.gov/wp-content/uploads/2015/07/Malcolm-Heritage-Statement-7-15-Criminal-Justice-II-COMPLETE.pdf; Evan Bernick & Paul J. Larkin, Jr., Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, Heritage Foundation Legal Memorandum No. 114 (Feb. 10, 2014); Families Against Mandatory Minimums, Recent State-Level Reforms to Mandatory Minimum Laws, http://famm.org/wp-content/uploads/2013/08/FS-List-of-State-Reforms-6.30.pdf (last accessed July 11, 2016). For one example, consider the case of Mandy Martinson, sentenced to 15 years in prison for her role in her boyfriend’s drug dealing operation. Families Against Mandatory Minimums, Mandy Martinson, http://famm.org/mandy-martinson/ (last accessed July 11, 2016).
 H.B. 1030 (2015), http://www.legis.nd.gov/assembly/64-2015/documents/15-0283-04000.pdf.
 Bernick & Larkin, supra note 31.
 See Paul J. Larkin, Jr., Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population, 1 Harv. J. L. & Pub. Pol’y 1 (2014).
 N.H. HB 649 (2014).
 See Vera in passim. See also Am. Bar. Assoc., Nat’l Inventory of Collateral Consequences of Conviction (2013); Nat’l Assoc. Crim. Defense Lawyers, Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2013).
 OK HB 2168 (2015), http://www.oklegislature.gov/BillInfo.aspx?Bill=HB2168).
 Vera at 46.
 Other proposals have dealt with, among other things, back-end reforms (sometimes referred to as prison reform), ban the box, and record sealing or expungement. See, e.g., Id.; Adam Gelb, State Criminal Justice Reforms Build the Case for Data-Driven Federal Legislation, Pew Charitable Trusts (July 30, 2015), http://www.pewtrusts.org/~/media/assets/2015/06/sentencing_corrections_reforms_justice_reinvestment_states.pdf?la=en; John G. Malcolm, Criminal Justice Reform at the Crossroads, 20 Tex. Rev. L. & Pol. 249 (2016); Malcolm, supra note 1.
 See supra, note 7.