Obama still has time to compromise with GOP on criminal justice reform

Much of the focus in Washington is understandably turning to the transition of the executive branch; but, with more than two months left in office, President Obama still has time to work toward a positive, bipartisan compromise with Congress on the issue of criminal-justice reform — a priority the president highlighted in his final State of the Union address.

{mosads}Indeed, the president has been looking to enact criminal-justice reform since at least 2014, when members of his Domestic Policy Council met with center-right intellectual leaders to discuss the issue.

Last November, a bi-partisan legislative task force introduced legislation that, among other things, would require a showing of criminal intent to obtain a conviction unless Congress had expressly said otherwise — a requirement paralleling those of at least 15 states, as well as the Model Penal Code upon which most state criminal codes are based. A similar bill was introduced in the Senate the next day. 

Unfortunately, the White House immediately came out against the legislation, which was vociferously opposed by liberal groups like the Center for American Progress and Public Citizen.

The president’s team signaled that it wished to pursue criminal-justice reform with an exclusive focus on sentencing laws, by prospectively and retroactively reducing drug-related sentences.

House GOP leaders, in turn, dug in their heels and insisted that criminal-intent reform be a piece of any legislative compromise.

With Republicans holding on to both chambers of Congress, and Trump winning the race for the White House, President Obama and Congress should consider working to reach a compromise that would address criminal intent, as well as some aspects of federal sentencing practices.

Given the election outcomes, however, any compromise will have to directly address what we call “overcriminalization.”

Counting the regulatory code, there are more than 300,000 federal crimes now on the books. More than 98 percent of these crimes were never voted on by Congress, and are instead created by administrative agencies.

The overwhelming majority of these crimes do not involve conduct that we intuitively view as wrong — crimes like murder, rape, assault, and burglary — instead focusing on failures to comply with  complex regulatory regimes. 

Compared to large businesses with massive compliance budgets, small business owners, family farmers, and employees run a heightened risk of prosecution.

For example, in 2007, Lawrence Lewis, an otherwise law-abiding single father, was prosecuted for violating an EPA regulation passed pursuant to the Clean Water Act. His crime? While working as the chief engineer of a military retirement facility, he diverted a raw sewage back-up to the wrong storm drain in an attempt to mitigate the damage to the home for sick veterans.

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Unbeknownst to Lewis, the drain to which the sewage was diverted emptied into a creek with a nexus to the Potomac. As was the case for Mr. Lewis, it is often no defense to show that a defendant acted in good faith. This, suffice it to say, is a sharp departure from the Western legal tradition.

When it comes to sentencing reform, however, much of the rhetoric has ignored the fact that most of the long-term incarcerated in the United States are guilty of violent or property crimes.

In other words, America’s famously high incarceration rate is largely attributable to our higher levels of violence.

Even in the federal system, where a substantial fraction of those incarcerated are there for drug offenses, the percentages of those imprisoned for mere possession offenses is rather low — and many of those individuals may have been investigated or indicted for violent and property crimes before reaching a plea agreement.

While these arguments inform legitimate concerns about the potential fallout from a retroactive application of suggested sentencing reforms, that doesn’t mean that sentencing reform is or should be completely off the table for Republicans in Congress, either. 

Americans have clearly signaled displeasure with a war on drugs that disproportionately envelopes minorities in the criminal-justice system, at least as it applies to personal use of certain scheduled drugs.

Downballot in this year’s election, several more states joined those that had already liberalized marijuana laws.As such, it would be wise for Republicans to address these legitimate concerns.

Similarly, the White House should also rethink its opposition to a default criminal-intent rule that would protect Americans like Mr. Lewis, even if it would also protect some white-collar defendants.

It won’t necessarily be easy, but the president can still achieve one of his major priorities if he’s willing to compromise and lead.

Copland is a senior fellow and Mangual a legal-policy project manager for the Manhattan Institute for Policy Research. 

The views expressed by Contributors are their own and are not the views of The Hill.