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”[1]—are not new. Before the states were even formed, American colonists struggled to define crime and exact just punishment.[2] 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.[3] 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.[4]

Today we have our own set of perils, such as overcriminalization—the “misuse and overuse of criminal laws and penalties to address societal problems”[5] —that have lawmakers considering those old debates anew.[6] Broad bipartisan coalitions have formed and are now pressing for various legislative reforms to the criminal justice system at all levels of government.[7] While federal legislators are currently debating the merits of several relevant bills,[8] state lawmakers are miles ahead, having already adopted a number of criminal justice reform bills that hold great promise.

Enact Mens Rea Reform to Decriminalize Morally Innocent Mistakes or Accidents

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.”[9] 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.”[10]

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.”[11] 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.”[12] 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.[13]

Repeal Outdated, Unnecessary Criminal Laws

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[14] by identifying and repealing any that are outdated or unnecessary.[15] For example, in 2015, the Michigan House and Senate unanimously passed a bill,[16] which was signed into law by the governor, repealing laws making it a crime to:

• Accept any challenge to a duel; be present at a duel as an aid or second or surgeon; encourage or promote a duel; use “reproachful language in print for not accepting or fighting a duel”;
• Use “indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of a woman or child”;
• Play, sing, or otherwise render the National Anthem “in any public place” or “at any public entertainment,” including at a “motion picture hall” or café, unless it is performed as “an entire and separate composition or number and without embellishments or other melodies.”[17]

Only legislatures can repeal their own laws.[18] If a law lingers after its reason for being has died, then common sense dictates that the legislature should exercise that power.

Codify the Rule of Lenity

With the overwhelming number of criminal laws on the books today,[19] 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.[20] 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.[21]

This “rule of lenity” guides judicial interpretation of criminal statutes[22] 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.’”[23] In addition to Texas, Florida has now codified the rule of lenity to ensure uniform application. Other states are considering following suit.[24]

Enact a Mistake of Law Defense

Anglo-American law has long held that ignorance or mistake of a criminal law is not a defense to criminal liability.[25] 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,”[26] 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.[27] 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.[28] 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.”[29] 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.[30]

Modify Sentencing Laws to Prevent Instances of Manifest Injustice

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.[31] 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.”[32] 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.[33]

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.”[34]

Expand the Use of Earned-Time Credit as Correctional Reform

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.[35] 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).[36] 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.[37]

Reduce Obstacles to Lawful Employment to Help Reduce Recidivism

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.[38] In Oklahoma, for instance, the state House voted 63 to 31 and the state Senate voted 43 to 1[39] 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.”[40] 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.[41]

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.[42]

Congress Should Follow the States’ Lead

The reforms discussed herein are far from an exhaustive list of state criminal justice reform measures that have been enacted recently.[43] As many legislators, judges, scholars, and journalists have pointed out, criminal justice reform enjoys broad bipartisan support.[44] 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.