My mother, father, and identical twin brother were all once members of the ACLU, so it really depresses me just how partisan it has become (as I discussed earlier at this link). A classic example is criminal justice reforms long backed by civil libertarians that it now opposes simply because Republicans support them. On February 17, the New York Times ran an inaccurate letter from ACLU Leader Anthony Romero opposing such reforms.
His letter objects to proposed
reform of “mens rea” provisions. These plans, if implemented, would require prosecutors to prove that a defendant was aware of the illegal nature of his or her actions and intended to cause them. Proving such intent would be nearly impossible for many financial, environmental and regulatory crimes but relatively simple for drug and property crimes…. Republican lawmakers who insist on making this issue … are likely doing so … to please white-collar and corporate polluter interests who stand to gain the most.
Experienced criminal defense lawyers tell me that the claim he made (that “proving such intent would be nearly impossible”) is blatantly false. At least in the areas of law I am familiar with, it is indeed false. It is often easy to prove mens rea in financial or environmental crimes, because mere negligence is often considered adequate mens rea for these crimes (unlike traditional crimes, for which a higher mens rea is needed). No legislation that is being seriously considered by the House or Senate, or has passed any legislative committee would change that. (Indeed, it looks like reform legislation will not even change the controversial and draconian Park doctrine used to jail CEOs for conduct of subordinates that they did not know of or approve, or indeed, even tried to prevent).
Some academics suggest that the ACLU’s position reflects hostility to the rich, rather than reflexive hostility to Republicans. “I think this is worse than opposing criminal justice reform because the Republicans are for it,” wrote George Mason University Law Professor David E. Bernstein. “It’s opposing criminal justice reform because the executive director of the ACLU doesn’t care about the rights of a certain class of accused criminals.” But even if this is true, it does not explain why it opposes reform now, when many of its leaders supported such reform in the past, for the very same class of accused people. That strikes me as more a function of partisanship.