”Sen. Warren, Sen. Bernie Sanders, and other progressives don’t like the idea that the Constitution and The Rule of Law could get in their way of prosecuting bankers and other businesspeople, who they judge, in their subjective opinion, to have done something wrong. Aren’t HRC’s supporters claiming lack of knowledge/intent in the e-mail matter?”, Mike Perry, former Chairman and CEO, IndyMac Bank

February 5, 2016, Opinion, The Wall Street Journal

Opinion

Warren’s Criminal Complaint

She wants bankers to go to jail even if they didn’t intend to break the law.

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Sen. Elizabeth Warren on July 29, 2015 in Washington, DC. PHOTO: ASTRID RIECKEN/GETTY IMAGES

Does Elizabeth Warren hate capitalists so much that she’s willing to scuttle a bipartisan criminal-justice reform supported by the likes of Republican Rand Paul and President Obama? Apparently so, judging by the Massachusetts Senator’s broadside this week against a provision to prevent people from being prosecuted for crimes they had no intent to commit.

The queen of Progressive Nation— Bernie Sanders is the new king—is upset about a measure that has passed the House Judiciary Committee firming up the definition of criminal intent in federal criminal law. GOP Senator Orrin Hatch and House Judiciary Chairman Bob Goodlatte want to create a default standard for criminal intent in areas of federal law when no standard exists. The hope is that this provision will pass along with sentencing reforms for drug offenses and other nonviolent crimes.

But Ms. Warren isn’t into compromise. The point of a criminal-intent standard, she said this week, is “to make it much harder for the government to prosecute hundreds of corporate crimes.” And, naturally, she thinks Messrs. Hatch and Goodlatte are acting in bad faith: “For these Republicans, the price of helping out people unjustly locked up in jail for years will be to make it even harder to lock up a white collar criminal even a single day.”

The former corporate lawyer must really have hated her clients because she can’t seem to think straight. A new default standard wouldn’t let criminals off the hook. It would merely prevent prosecutors from ignoring the traditional need under criminal law to prove that the accused has a guilty mind before he can be convicted. Nothing under the provision would prevent Congress from specifying lower standards for prosecuting specific white-collar crimes.

By the way, the necessity of proving that the accused has a guilty mind doesn’t merely apply to white-collar defendants. In June 2015 the Supreme Court ruled 8-1 in Elonis v. U.S. that Anthony Douglas Elonis was improperly charged with a federal crime when he posted explicit and violent rap lyrics on Facebook. “Although there are exceptions,” Chief Justice John Roberts wrote, “the ‘general rule’ is that a guilty mind is ‘a necessary element in the indictment and proof of every crime.’”

The problem under current federal law is that such precedents aren’t enough to stop prosecutors from exploiting statutes that don’t have an explicit guilty-mind standard. As criminal laws have proliferated, more Americans are indicted for breaking laws that they never knew existed or that were written for purposes far from how prosecutors use them.

The classic example is the fisherman indicted under Sarbanes-Oxley for throwing his catch overboard. He took his appeal all the way to the Supreme Court and won. But few people have the resources to do so, and most defendants will agree to a plea bargain rather than risk a lengthy prison term under onerous mandatory sentencing laws. The National Association of Criminal Defense Lawyers says 97% of federal cases are resolved through plea bargains and never go to court.

We’ve had a spirited debate in our pages this week on criminal intent between Mr. Hatch and GOP Sen. Chuck Grassley, who is worried the Hatch provision will cause Ms. Warren and others to blow up his other reforms. He might be right, though President Obama could still persuade enough Democrats to go along if he wants a success. If not, then the blame for killing reform will rest with Ms. Warren, who can’t see past her bile for bankers to support a single standard of law to protect the innocent.

Posted on February 9, 2016, in Postings. Bookmark the permalink. Leave a comment.

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