I don’t mind that Reason’s Robby Soave paraphrased my twit for his headline without giving me credit. The letter to the New York Times’ editor was sufficiently outrageous that it’s enough to be a laboring oar in exposing it.  The letter was signed by Anthony Romero, executive director of the American Civil Liberties Union.

It is the sort of letter that will be remembered, that will be thrown back in the face of the ACLU should the tide turn and it decides to advocate on behalf of civil liberties again some day. It was a disgraceful letter.

Since it’s only four paragraphs, it is presented in full:

“To Convict, Prove a Guilty Mind,” by Gideon Yaffe (Op-Ed, Feb. 12), highlights a tiny element of proposed criminal justice reforms, the 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.

The reality is that at present, we know little about how this reform would affect our laws. What we do know is that its passage will do little to help the vast majority of the 2.2 million people behind bars in America and those soon to be incarcerated.

Republican lawmakers who insist on making this issue a quid pro quo are likely doing so not out of concern for the lives, families and communities torn apart by our broken system, but rather to please white-collar and corporate polluter interests who stand to gain the most.

Advocates of all political persuasions working to bring meaningful criminal justice reform would do well to keep our eyes on the prize of getting meaningful legislation passed and not let mens rea become the poison pill for the solutions our country so desperately needs.

As a prelude, after reading Gideon Yaffe’s op-ed, I sent an email to a friend on the Times editorial board to let him know that I saw what the Times did there. Yaffe’s op-ed was a fluffy string of non-sequiturs, anecdotes that had little to do with the issue, and offered neither principled argument nor doctrine. Not to blow my own horn, but when a blawg is far more substantive than an op-ed published in the Times, the fix is in.

But Yaffe’s throwing something together to get his name in the paper, and the paper’s thrill at publishing any dreck from someone who puts “Yale law professor” after their name is no excuse for the ACLU’s response.

Proving such intent would be nearly impossible for many financial, environmental and regulatory crimes but relatively simple for drug and property crimes.

This is simply idiotic. It is so utterly untrue as to be laughable, but when it emits from the keyboard of the ACLU, it takes on the gloss of truth.

A secondary irony here is that the ACLU isn’t a defender of those accused of crimes; it’s (supposedly) a civil liberties organization. One might be inclined to cut them a break for writing something so mind-bogglingly stupid because they don’t know any better. After all, the ACLU doesn’t get into the trenches to defend accused criminals. How would they know? Whenever a story on criminal law turns to the ACLU for a quote, I invariably mutter to myself, “doesn’t the writer realize that the ACLU has nothing to do with criminal defense?”

But since Romero has chosen to speak out on the subject of how it’s impossible to prove intent, he has to demonstrate that he has the bona fides to make such an assertion. He doesn’t. He’s got nothing.

Republican lawmakers who insist on making this issue a quid pro quo are likely doing so not out of concern for the lives, families and communities torn apart by our broken system, but rather to please white-collar and corporate polluter interests who stand to gain the most.

This is where the ACLU, where Romero, leaps from the mere ignorant to the despicable.  I get it, he hates Republicans. He hates corporations. He loves the environment and hates polluters. Social justice isn’t a matter of principle but of feelings, and Romero’s got a terminal case of the feelz.

First, the ACLU abandoned free speech, because people it favored were getting their feelings hurt. Now, the ACLU has abandoned due process because, while it would help thousands of individual and small business defendants who are subject to criminal sanctions for violating one of the tens of thousands of regulations imposed by the government that are backed up by criminal sanctions, it would also inure to the benefit of corporations.

It’s fine to support due process for defendants it likes. But when it helps defendants the ACLU doesn’t like, then it’s evil. And for all those individuals who get thrown under the bus as well, the ACLU has a message for you. Tough shit. Take one for the team, just in case a corporate polluter might walk.

Sadly, there are plenty of criminal defense lawyers who share the ACLU’s social justice sensibilities, who care deeply for the individual defendants accused of street crime, but have no concern for anyone else. Not every criminal defense lawyer goes into federal court, defends individuals charged with regulatory offenses only to learn that they’re strict liability crimes, that there is no mens rea element, that they are denied any ability to defend against their charges despite not having a clue that some ridiculously picayune detail of their otherwise ordinary daily life turns out to violate a government regulation.

Remember Harvey Silverglate’s Three Felonies A Day?  It wasn’t about us committing a few murders, but about regulations. It was about how each of us violates federal regulations daily, multiple times a day, and about how people get punished for it. Corporations too? Sure. So what?

The ACLU has now announced that there is a difference between a class of accused defendants it favors and a class it does not.  While the protections enshrined in the Constitution are supposed to apply to everyone, even legal entities*, some pigs are more equal than others. And the ACLU, by Anthony Romero, has come out with its favorite pig because it hates the corporations so much that it is willing, no desirous, to see you slaughtered in the name of its flavor of social justice.

*Don’t wrap this up in your hatred of Citizens United; the issue of requiring a mens rea for criminal prosecution is not analogous to the issue of political money.