The ACLU’s Cynical Attack on Criminal Justice Reform

April 28, 2016 • Commentary
By Nat Hentoff and Nick Hentoff
This article appeared on Cato​.org on April 28, 2016.

Under the leadership of Anthony Romero, the American Civil Liberties Union (ACLU) is a diminished shadow of its former self. The ACLU is now led by cafeteria civil libertarians who choose the liberties they deem worthy of protection based on a narrow ideological agenda.

The latest incarnation of this betrayal of the Bill of Rights is the ACLU’s refusal to support criminal justice reform legislation that strengthens the mens rea requirement for most federal criminal statutes. Translated from the Latin as “guilty mind,” mens rea is a legal phrase that describes the mental state of mind formed prior to the commission of a crime. Traditionally, the law requires the government to prove that a defendant was aware of and intended to break the law before he can be punished for doing so.

Writing in The New York Times, Yale Law professor Gideon Yaffe warned that liberal opposition to the mens rea provision threatens the passage of the criminal justice reform legislation currently pending in Congress:

“The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes. Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm. Their opposition is a major stumbling block to passage of the larger bill. But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people.”

The ACLU’s Romero responded to Yaffe with a letter to the editor in which he argued that the passage of mens rea reform “will do little to help the vast majority of the 2.2 million people behind bars in America and those soon to be incarcerated.”

George Mason University Law professor David E. Bernstein criticized Romero’s majoritarian approach to civil liberties advocacy, writing that “the executive director of the ACLU doesn’t care about the rights of a certain class of accused criminals.” Professor Bernstein’s claim of ACLU selectivity has merit when you consider that the organization has, in some cases, called for strengthening the mens rea requirement in proposed federal legislation.

In 2007 the ACLU vigorously opposed changes to the Keeping the Internet Devoid of Sexual Predators (“KIDS”) Act on the grounds that “the amendment’s proposed mens rea is overly broad and vague and could result in innocent people being prosecuted for this offense.”

Progressive groups have badly mischaracterized the mens rea reform movement as a Republican‐​inspired effort to shield corporate special interests from much deserved prosecutions. A recent op‐​ed by Thomas B. Edsall in The New York Times parroted the progressive line on mens rea reforms, which he compared to partisan “pro‐​corporate stealth provisions attached to unrelated sentencing reform legislation.”

Yet one of the leading voices in the mens rea reform movement is Harvey Silverglate, a noted criminal defense and civil liberties lawyer who has a five‐​decade record of courageously defending progressive causes. Silverglate served for 30 years as a board member of the ACLU of Massachusetts and remains a member of the organization.

The need for mens rea reform was first brought to light in Silverglate’s 2007 book Three Felonies a Day: How the Feds Target the Innocent. According to Silverglate, the average U.S. citizen innocently commits an average of three felonies a day without realizing they have broken the law. His book describes how overzealous prosecutors use vague laws with lax mens rea requirements to prosecute innocent people from all walks of life under a wide variety of federal criminal statutes.

“There has arisen a cynical effort by some to defeat the adoption of mens rea legislation by claiming … that it will aid corporate and ‘white collar’ defendants, ignoring that in fact it would apply across‐​the‐​board to all defendants,” Silverglate wrote in an email responding to our request for his comments.

“This attempted injection of a form of class warfare into the struggle to achieve long‐​overdue fundamental criminal justice reform is a betrayal of the civil liberties of all Americans,” Silverglate warned. “We need both sentencing reform for those convicted, and mens rea reform in order to prevent the innocent from being convicted in the first place.”

Silverglate concluded his comments with a stern rebuke: “Romero and the ACLU should know better. Liberty is indivisible. Equal justice is not achieved by cynically pitting one group of citizens against another. That is how we ended up with by far the largest prison population in the world.”

In 2009 Silverglate called for coordinated action to solve the problems described in his book. “(R)ecognition that this movement has no ideological allegiances other than the preservation of liberty is a pivotal first step,” he wrote in a guest essay for the Volokh Conspiracy blog.

Conservative groups answered Silverglate’s bipartisan call to action while the ACLU and other progressive groups turned tail and ran in the opposite direction. Their opposition to the mens rea legislation now threatens to kill the last best hope for meaningful criminal justice reform for years to come.

Authors’ disclosure: Nat Hentoff is a former board member of both the national ACLU and the New York Civil Liberties Union. Nick Hentoff, a former board member of the Arizona chapter of the ACLU, represented the Arizona ACLU in the First Amendment court case Children of the Rosary v. City of Phoenix (9th Cir. 1998).

About the Authors
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.