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Thread: Obama, Koch Bros. agree on reforms. Sensenbrenner presents confusing bill.

  1. #1
    Regular Member
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    Feb 2013
    Thru Death's Door in Wisconsin

    Obama, Koch Bros. agree on reforms. Sensenbrenner presents confusing bill.

    Rare White House Accord With Koch Brothers on Sentencing Frays

    A confusing proposal to reform the ‘mens rea’ of federal criminal law. Orin Kerr at Volokh Conspiracy

    The bill - H.R.4002 - Criminal Code Improvement Act of 2015114th Congress (2015-2016)

    Orin Kerr: According to the Times, libertarian groups [Sheila Jackson Lee cosponsors] endorse this reform but the Obama administration opposes it. The Times suggests that it might go through despite Obama administration opposition, at least in some form, because it may end of as part of a broader package of criminal justice reforms.

    I hadn’t heard of this mens rea proposal until the Times article, but reading over it, it strikes me as confusing. Putting aside whether it is a good idea or a bad idea — and I’m skeptical about it, because global solutions like this often have major unintended consequences — I have a lot of questions about what it means and how it’s supposed to work.
    I am responsible for my writing, not your understanding of it.

  2. #2
    Accomplished Advocate color of law's Avatar
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    Oct 2007
    Cincinnati, Ohio, USA
    I'm not saying I buy into these changes just yet. But, Requiring “knowingly” or “mens rea” part of all crimes is a good thing.

    Example: Conspiracy – 18 USC 371.
    If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
    If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
    Black's Law Dictionary, 5th
    Conspire. To engage in conspiracy. Term carries with it the idea of agreement, concurrence and combination, and hence is inapplicable to a single person or thing, and one cannot agree or conspire with another who does not agree or conspire with him.
    As you can see under federal conspiracy “knowingly” or “mens rea” is NOT required.

    It’s a separate Federal crime for anyone to conspire or agree with someone else to do something that would be another Federal crime if it was actually carried out.

    A "conspiracy" is an agreement by two or more people to commit an unlawful act. In other words, it is a kind of "partnership" for criminal purposes. Every member of a conspiracy becomes the agent or partner of every other member.

    The Government does not have to prove that all the people named in the indictment were members of the plan, or that those who were members made any kind of formal agreement.

    The Government does not have to prove that the members planned together all the details of the plan or the “overt acts” that the indictment charges would be carried out in an effort to commit the intended crime.

    The heart of a conspiracy is the making of the unlawful plan itself followed by the commission of any overt act. The Government does not have to prove that the conspirators succeeded in carrying out the plan.

    The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:

    (1) two or more persons in some way agreed to try to accomplish a shared and unlawful plan;
    (2) the Defendant knew the unlawful purpose of the plan and willfully joined in it;
    (3) during the conspiracy, one of the conspirators knowingly engaged in at least
    one overt act as described in the indictment; and
    (4) the overt act was committed at or about the time alleged and with the purpose of carrying out or accomplishing some object of the conspiracy.

    An "overt act" is any transaction or event, even one that may be entirely innocent when viewed alone, that a conspirator commits to accomplish some object of the conspiracy A person may be a conspirator without knowing all the details of the unlawful plan or the names and identities of all the other alleged

    If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan and willfully joined in the plan on at least one occasion, that’s sufficient for you to find the Defendant guilty.

    But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. A person who doesn’t
    know about a conspiracy but happens to act in a way that advances some purpose of one doesn’t automatically become a conspirator.
    However, the jury instructions requires one person to have “knowingly” known what was going on was illegal.

    An unindicted co-conspirator, or unindicted conspirator, is a person or entity that is alleged in an indictment to have engaged in conspiracy, but who is not charged in the same indictment.

    The unindicted co-conspirator is not required to know that a crime is being planed or committed.

    Example: The get away driver did not know that the bank robber was going to kill the teller. Conspiracy to commit a murder. 18 USC 1117.

    State wise in Ohio the littering law has no “knowingly” or “mens rea” part of the crime. Unbeknownst to you a piece of paper blows out of the car window while driving down the road. You are guilty. If the statute said knowingly then it would be tougher to prove.

    So, a change in law to protect the citizen also protects the government employee.

    I can understand why government agencies hate this. That is a good thing.
    Last edited by color of law; 11-26-2015 at 06:15 PM.

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