Barack Obama is led on a tour by Bureau of Prisons Director Charles Samuels, right, and correctional officer Ronald Warlick during a visit to Oklahoma's El Reno Federal Correctional Institution in July.

Barack Obama is led on a tour by Bureau of Prisons Director Charles Samuels, right, and correctional officer Ronald Warlick during a visit to Oklahoma's El Reno Federal Correctional Institution in July. Kevin Lamarque/AP

Criminal Justice Reform Could Stall Over This Dispute

A disagreement between a House Republican and the Obama administration creates a challenge.

The stars seem to have aligned. An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.

Even with that common ground, however, tensions are bubbling up. A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system. That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event. The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.  

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision. “It has to be overcome. This is a critical element to doing justice in this country.”

The disagreement points to the possibility that negotiations will break down. It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise. The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.

At stake is a question of fairness. Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity. Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.

That conflict could derail sentencing reform. Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.  

“I think it is absolutely critical that all of the elements of criminal-justice reform that I described earlier be included in this process, or the process will bog down and will fail,” Goodlatte said after being asked if he would be willing to set aside criminal intent to pass sentencing reform. “To me, at the very core of criminal justice is the requirement that somebody not go to prison if they did not have criminal intent.”

Koch Industries, the corporation controlled by the billionaire mega donors Charles and David Koch, supports criminal-intent reform, but, according to aWashington Post report, the company believes that disagreement with the White House over the issue could be set aside in an effort to pass sentencing reform.

As the 2016 election draws closer, prospects for passing any major legislation looks dim. If criminal-justice reform legislation is going to pass, it may have to happen quickly. As my colleague Russell Berman points out “advocates believe they have a small window early in the year before the presidential and legislative primary campaigns make a major bill impossible.”

Goodlatte did not seem concerned that a legislative package would stall. “I don’t think there’s a time limit on that,” the chairman of the judiciary committee said, though he did indicate that he hopes to “get it done as quickly as possible.”

There’s a lot at stake. The U.S. puts people behind bars at a higher rate than any other country. Federal prison spending has soared in recent years, a statistic that reformers hold up as evidence of a broken criminal-justice system where costs are spiraling out of control.

The Senate is working on its own version of criminal-justice reform. Last October, a powerful coalition of Senate Republicans and Democrats unveiled a reform bill. Meanwhile, Senate Republican Orrin Hatch has championed a push for criminal-intent reform as part of a broader reform agenda on the other side of the Capitol.