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Taylor Millard: Justice Reform Could Save Almost $800M If Congress Acts

| September 12, 2016

This commentary, written by Taylor Millard, appeared at Hot Air on September 11, 2016.

I wrote last week how justice reform is fiscally conservative, specifically looking at a Texas Public Policy Foundation study on incarceration vs. treatment. The potential savings are even more massive on a federal level where the Sentencing Reform Act of 2015 could whack hundreds of millions of dollars from the budget. Via Congressional Budget Office (emphasis mine):

H.R. 3713 would amend federal law to change the prison sentences associated with certain offenses. Based on information provided by the Department of Justice (DOJ) and the U.S. Sentencing Commission (USSC),CBO estimates that implementing the legislation would reduce the cost of incarcerating offenders and would lead to a reduction in discretionary costs to DOJ of $338 million over the 2017-2021 period and $769 million over the 2017-2026 period, assuming future appropriation actions consistent with the projected reduction in prison population.

$769M is nothing to sneeze at, especially when the government debt is $19.5T and counting. If the government can save money by changing sentencing of non-violent offenders, then it should be studied and implemented. Those debt markers are going to be called in at some point, and when it happens the U.S. is going to have to pay up. The less the government spends, the more it can make sure the debt goes down.

Here’s another reason why justice reform needs to be enacted on a federal level: the Bureau of Prisons is getting almost $7B in cash whilst holding only 200K prisoners. These prisoners aren’t all hardened criminals or suspected terrorists, but Average Joes who violated laws they didn’t even know existed. It’s why Congressman James Sensenbrenner teamed up with Congressmen Louie Gohmert, Raul Labrador, and Bob Goodlatte (and Democrats) to introduce the Criminal Code Improvement Act of 2015, in hopes of simplifying the law.

This bill amends the federal criminal code to establish a default mens rea standard (i.e., a state of mind requirement) for a federal criminal offense whose defining statute does not specify a required state of mind.

A conviction for such federal criminal offense requires proof that a defendant acted knowingly. Additionally, if the offense consists of conduct that a reasonable person would not know or have reason to believe was unlawful, then a conviction requires proof that the defendant knew or had reason to believe such conduct was unlawful.

Finally, the bill amends the federal judicial code to require the Department of Justice to develop and update, index, and publish an inventory of all federal criminal offenses, including violations of agency rules or regulations that constitute or define federal criminal offenses.

Conservative groups like FreedomWorks, Faith & Freedom Coalition, R Street Institute, American for Tax Reform, and the Southern Baptist Convention’s Ethics & Religious Liberty Commission are all behind the bill. They sent a letter to House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell last week, pointing out how it didn’t make sense to deprive liberty for people who accidentally broke the law (emphasis mine).

The best estimate is that there are 4,500 to 5,000 federal criminal statutes and more than 300,000 federal regulations that carry criminal penalties. As Professor John Baker once said, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration.” Today, it is simply impossible for Americans to have had fair notice or to know what laws they may unwittingly break in any given day.

Making matters worse, Congress, in recent years, has had a proclivity for passing criminal laws with either weak mens rea requirements or no mens rea requirement at all. The Criminal Code Improvement Act would restore due process, fair notice and reverse the epidemic of over-criminalization that is currently haunting federal criminal law

It doesn’t make any sense at all to punish people for committing a crime they didn’t know existed. These justice reform bills have to be passed to save money, but more importantly, to make sure one of us doesn’t get sent to prison for a crime we didn’t know even existed. There’s a light at the end of the tunnel for justice reform on a federal level. Here’s hoping it’s not a train coming to run it over.

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