Leading the charge to change the standard are the National Association of Criminal Defense Lawyers and Koch Industries, the conglomerate owned by David and Charles Koch, who have also supported the wider criminal-justice reforms.

Image The Capitol dome behind the House of Representatives in Washington D.C. Credit... Zach Gibson/The New York Times

If the new provision becomes law, corporate actors could avoid prosecution by claiming, as they commonly do now, that they didn’t know what they were doing was illegal. And corporations that now go to great lengths to train employees on their legal responsibilities would have far less incentive to do so.

The proposed provision would require that prosecutors prove that a defendant “knew, or had reason to believe, the conduct was unlawful,” if a “reasonable person” would not have had reason to believe it was unlawful. This confusing standard would create endless litigation as the government and defendants argued over how, exactly, to meet it in each new case.

If anything, it is still too hard for prosecutors to go after corporate bad actors who endanger the health and safety of the public or the environment. And when they do bring charges, they’re generally doing so with good reason. A University of Michigan study examining almost 700 prosecutions brought under federal environmental laws between 2005 and 2010 found that virtually all involved one or more of the following: repeat violations of the law, deceptive or misleading conduct, a refusal to follow regulations at all, or actions that caused significant harm to the environment or to public health.

It is true that many federal laws are sloppily drafted, and some may need to be re-examined and rewritten. But a broad, sloppy fix is not a solution, especially when it is pushed through without meaningful deliberation.