Last week, the Harvard Law Review published an article by Barack Obama entitled, “The President’s Role in Advancing Criminal Justice Reform.” Despite its title, the article is not an abstract discussion of how presidential power can be deployed to advance criminal justice reform.  Instead, it’s a memoir in which the president describes, in the first person, his own passionate desire to help those who become embroiled in the criminal justice system and the many things he himself has done over the years to help them.

This week, John-Michael Seibler posted a review of President Obama’s article at the Federalist Society’s Daily Signal blog. Seibler’s review interests me because it calls attention to a blind spot in the president’s view of criminal justice reform, a blind spot that he shares with many other criminal justice reformers on the left:

One glaring omission stands out: The article all but forgets the crucial need for mens rea … reform to reverse the erosion of due process in federal criminal law.

For readers who aren’t familiar with the term, mens rea means “guilty mind.” It derives from a Latin maxim expressing what has, for centuries, been a fundamental principle of due process under Anglo-America law:

Actus reus non facit reum nisi mens sit rea. (“A guilty act does not make a person guilty unless the mind is also guilty.”)

As Seibler explains:

Mens rea … distinguishes between an accident and a crime.

[It] safeguards everyone equally from unwarranted prosecution—from drug offenses … to white-collar crime.

However, Congress and federal agencies routinely produce criminal laws and regulations with weak or no [mens rea] standards, sometimes deliberately and sometimes by simple omission. …

These provisions … often end up criminalizing conduct that no reasonable person would have assumed was immoral or illegal. Honest, otherwise law-abiding citizens have paid the price in the form of criminal prosecutions for morally innocent accidents and mistakes. …

To say that President Obama “all but forgets the crucial need for mens rea” is too generous. Obama has been actively hostile to mens rea reform—so hostile, in fact, that he was willing to oppose a bill that included many criminal justice reforms he claimed to want simply because it also included a provision that would have provided slightly stronger mens rea protections.

In the HLR article, Obama glosses over his opposition to mens rea reform. Indeed, the only reference to the concept appears in a footnote where he complains mildly about those in Congress who “pushed for … reform legislation to be paired with proposals such as mens rea reform that could undermine public safety and harm progressive goals.”

Seibler, however, links to a report by Manhattan Institute scholars James Copland and Rafael Mangual that provides the details:

To protect ordinary Americans … from being prosecuted for unknowingly violating one of the hundreds of thousands of federal crimes, Congressional leaders of both parties, in both the House and Senate … authored legislation that would require some showing of intent unless Congress explicitly specifies otherwise—the approach taken in the Model Penal Code and many states. Congress would be free to depart from this “default” standard and require a lesser showing of intent, or even no showing, if it deemed a rule sufficiently important—say, one involving national security. But Congress would have to say so.

Unfortunately, the Obama White House came out against this legislation—and in the process has all but killed the chances of enacting criminal-justice reform, one of the administration’s top legislative priorities for its last year.

With a new administration about to begin, there is every reason to hope that mens rea reform will eventually happen at the federal level. However, mens rea reform is needed at the state level as well. Next week I’ll discuss what we at the John Locke Foundation are doing to help ensure that this important due process protection is remains secure in North Carolina.