On May 16, 2017, Representative Ted Poe (R-Texas) introduced the Back the Blue Act in Congress.[1] The bill has since been referred to the House Judiciary Committee. The Back the Blue Act of 2017 (“BBA”) creates new federal crimes for killing and assaulting police officers—conduct that is already illegal under the law in all fifty states and has been punished in state courts for years. The proposed bill goes further, and establishes mandatory minimum sentences for such crimes even though mandatory minimums have been proven to be ineffective at curtailing criminal conduct. The BBA, as currently written, does not require that the defendant even knew he or she was assaulting a police officer, which means it lacks any mens rea, or “guilty mind,” requirement.
Because of its duplicative nature, adoption of mandatory minimums, and lack of any mens rea requirement, Congress should reject the current version of the BBA. The lives and working conditions of police officers are at stake. As a 34-year veteran of the Baltimore and Maryland State Police Departments put it, “the bill would make us less safe and less effective by worsening what is already the greatest threat to policing today: the downward spiral of police-community relations.”[2]
The Back the Blue Act attaches a mandatory minimum of ten years for the attempted killing of a law enforcement officer or for “conspiring” to kill a law enforcement officer. The BBA also turns any assault on an officer that works for a state or local police department that receives federal funding into a federal crime. Most definitions of assault make spitting on someone an act of assault, so the potential application of the new law is vast. Under the BBA, if any injury occurs during the assault, the mandatory minimum sentence is two years. And if “serious bodily injury” occurs, the defendant faces a mandatory minimum of ten years in prison. Further, a twenty-year mandatory minimum sentence applies if a deadly weapon is used during the assault.
Mandatory minimums take away sentencing discretion from judges and give it to prosecutors.[3] This results in arbitrary and severe punishments that undermine the public’s faith in America’s criminal justice system.[4] Further, evidence shows that mandatory minimums do not deter criminal conduct.[5]
As mentioned, the lack of any mens rea requirement means that a person could be charged by federal prosecutors without even knowing that the person allegedly assaulted was a law enforcement officer. This risk is particularly high for the charge of conspiracy to kill a law enforcement officer, which imputes liability for actions taken to any person involved in the alleged conspiracy, even if the actual act was not performed by that defendant. Mens rea has been a key element of American criminal law for centuries. As the Supreme Court has stated, “we must construe [an imprisonment] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”[6] Requiring a “guilty mind” in addition to a “guilty act” protects someone who engaged in accidental or innocent behavior from criminal prosecution and it is at the center of our criminal jurisprudence.[7]
Since the bill is duplicative of laws already on the books in all fifty states and the District of Columbia, the Back the Blue Act would waste federal resources and threaten state autonomy. State and local jurisdictions have the expertise to deal with issues involving their own law enforcement officers. The “federalization” of their local policing efforts will only deter from their ability to meet the ever-changing needs of local police forces. Moreover, as laid out by the Tenth Amendment to the U.S. Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”[8] Policing power is not one specifically delegated to federal government, therefore, it is reserved to the states.
The assault provision requires the federal prosecutor to “certify” that either the state lacks jurisdiction, has requested the federal government assume jurisdiction, the verdict obtained by the state left an “unvindicated” federal interest, or that prosecution by the federal government “is in the public interest and necessary to secure substantial justice.” However, these certification requirements are vague and do not meaningfully limit federal intervention into state interests.
States like Virginia and Wisconsin, for example, have laws nearly identical to the Back the Blue Act except that they also include a mens rea element. Virginia’s statute states: “if any person commits an assault…against another knowing or having reason to know that such other person is… a law-enforcement officer… such person is guilty of a Class 6 felony, and… the sentence of such person shall include a mandatory minimum term of confinement of six months.”[9] Wisconsin’s statute uses similar language to also acknowledge the importance of mens rea.[10]
If signed into law, the Back the Blue Act would create waste in the judiciary and in society, deteriorate working conditions for law enforcement officers, and impose costly mandatory minimums unrelated to the severity of the crime. It would also impede state and local efforts to protect police officers and fail to honor the punishment that a state has assigned for identical crimes on its own law enforcement officers. For these reasons, Congress should reject the Back the Blue Act in its current form.
Katie Parr is a law clerk and Erica L. Marshall is counsel at Cause of Action Institute.
[1] Back the Blue Act of 2017, H.R. 2437, 115th Cong. (1st Sess. 2017).
[2] Neill Franklin, For the sake of police, don’t back the Back the Blue Act, The Hill (Aug. 30, 2017), available at http://thehill.com/blogs/congress-blog/politics/335815-dont-back-the-back-the-blue-act
[3] Paul Larkin, Evan Bernick, Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, The Heritage Foundation (Feb. 10, 2014), available at http://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against.
[4] Id.
[5] See Barbara S. Vincent & Paul J. Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings, Federal Judicial Center (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/$file/conmanmin.pdf.
[6] Staples v. United States, 511 U.S. 600, 605 (U.S. 1994).
[7] John Malcolm, Michael B. Mukasey, The Importance of Meaningful Mens Rea Reform, The Heritage Foundation (Feb. 17, 2016), available at http://www.heritage.org/crime-and-justice/commentary/the-importance-meaningful-mens-rea-reform.
[8] U.S. Const. amend. X
[9] Va. Code Ann. § 18.2-57(C) (2017).
[10] Wis. Stat. § 940.203(2)(a) (2017).