Legal Commentary

Last week I blogged about the possibility that bipartisan suggestions that the Arizona immigration law is unconstitutional might help unfreeze the right-left divide that occupies so much of our public life, including our discussions of constitutional law.  Today I ran across a report jointly issued by the National Association of Criminal Defense Lawyers and the Heritage Foundation urging reform in the way Congress writes criminal laws.  The report argues that in recent years Congress has eroded the mens rea requirement, and proposes a series of substantive and legislative process reforms to reverse the trend.

What I find interesting about the report is the fact that it is the product of groups that (as a member of one of them told me) agree on very little.  Yet they both took the step to work on something they did agree on.  You can see each side's fingerprints in aspects of the recommendations. Thus, in addition to recommendations that Congress include mens rea requirements in criminal legislation and codify the rule against lenity, there are also recommendations that in enacting legislation Congress consider both federalism-based limits on congressional power and whether public defender funding is adequate to provide for the defense of indigent persons likely to be prosecuted under the law.

Apparently both congressional Republicans and Democrats are behind the report, so it might find a relatively hospitable reception in Congress.  It would be nice if it did.  I'm not a crim law expert but I have been troubled by what I've heard about overly aggressive federal criminal law.  But more relevantly for me, it's great to see liberals signing on to some concern about over-broad federal regulatory power and conservatives signing on for the proposition that public defender funding should be considered when enacting new criminal laws.  They're small steps, but building out from common ground allows those steps to get bigger.  I'm not pretending that this may eventually lead to the absence of fundamental ideological disagreements; indeed, I don't think that would be a good development, even if it were plausible.  But toning down the shouting and finding that common ground at least makes it clear where the real faultlines are, while allowing us to debate those disagreements without as much of the caricaturing of the other side that seems all too common today.  So, congratulations to them both, and good luck with it.