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Mens Rea: Criminal Liability Should Equal Criminal Intent

The principle that, to hold someone liable for committing a criminal act, requires that the person intended to commit the act for an unlawful purpose – i.e. with a guilty mind. This fundamental concept not only limits convictions to those with guilty minds, but can also gauge that guilt, so that only proportional punishments are imposed.

The U.S. Supreme Court has recognized this essential principle and declared it to be “‘universal and persistent in mature systems of law,’ as fundamental as our belief in an individual’s ability to ‘choose between good and evil,’ and ‘essential if we are to retain “the relation between criminal liability and moral culpability” on which criminal justice depends.’”

A necessary adherence to a principle that encompasses these observations seems to have been abandoned by our nation’s legislators. In America, the central source of criminal liability and punishment are criminal statutes.

In creating modern criminal statutes, lawmakers have moved away from the mens rea principle. Instead, favoring to draft strict-liability laws that carry mandatory, and often very severe, penalty schemes. These statutes reflect the legislators mindset that embraces a “tough-on-crime” stance, which is believed to be politically savvy. In doing so, our society sacrifices its innate sense of fairness in an effort to achieve the vague concept of “public safety.” A fair and just criminal justice system cannot exist if it abandons foundational principles implemented to ensure proper functioning. After all, committing a crime should not just involve doing something considered “bad,” but to have done so with purpose. This may be one of the reasons America has become a carceral nation. One that seemingly embraces the dubious distinction of world leader in incarceration rates, where one-third of the adult population now has a criminal record.

Sources suggest that as many as 12 million new criminal cases are processed through our criminal justice system per year. Can so many people actually be intending to violate the laws of this country? It seems unlikely. It is reasonable to assert that the real cause of these surging numbers are too many laws that completely fail to account for lack of a guilty mind.

Recognizing that our country is failing is the first step toward meaningful reform. To end this era of mass incarceration, we need to begin with fewer criminal convictions and less punishment.

Deciding which criminal acts to decriminalize, or which sentences should be decreased, are hard decisions. The reality is that only a small percentage of the incarcerated are considered non-violent. The higher percentage by far is of those convicted of what are considered very serious offenses. Assault, robbery, drug trafficking, child pornography, and even homicide are examples of convictions that don’t readily evoke images of offenders that likely received a sentence greater than necessary to achieve the stated goals of the criminal justice system. However, the truth of the matter is that even these serious offenses are being applied in a manner that is both overbroad and in conflict with our intuitive moral sense regarding guilt.

A broad collection of studies all indicate that human beings possess a moral sense of what response is appropriate to a harm or wrongdoing; humans are sensitive to the intent of the guilty party. Psychologists have discovered that children as young as 5 are able to “make their culpability and punishment decisions proportionately” in consideration of morally relevant differences in intent, according to Michael Serota’s article “How Criminal Law Lost Its Mind” in

A famous observation by Justice Oliver Wendell Holmes, Jr., who sat on the U.S. Supreme Court from 1902-1932, is that, “Even a dog can distinguish between being stumbled over and being kicked.”

In theory, it is generally accepted that the criminal justice system should not punish people who commit crimes by accident, mistake, or omission; nor should those with mental health issues be held fully accountable. The law should view these offenders as morally innocent, a state in which full criminal liability should rarely be imposed. This is the case in some offenses. For example, the law allows for gradations of punishment for the same conduct when it is the killing of a human being depending on whether it is first-degree murder or negligent homicide.

However, the Pinkerton Doctrine, and the natural and probable causes rule, are judicially created policies that make it legally impossible to impose moral equivocations during sentencing in many cases. These types of policies make even peripheral offenders just as liable for the commission of an underlying, foreseeable crime as the principal offender. The reality of such policies is that a girlfriend of a drug conspiracy “king pin” receives the same life sentence as if she had participated in the multitude of statutory violations comprising the conspiracy – just as if she were a principal. Or a girl says she is 18, sends pictures to a young man who believes that to be true. When it turns out she is 17, he is headed to prison.

There are thousands of such examples that have people serving lengthy sentences in our system for crimes they are morally innocent of committing. Such outcomes shock our intuitive sense of justice because they ignore the actual degree of guilt in the offender’s mind. It is also fundamentally unfair to morally condemn a supposed offender without consideration of the how or why of the offense. No one should be accountable for violating societal expectations without such considerations being applied.

A final issue is that placing the morally innocent in prison is both wasteful and expensive. Absorbing funding that could be better spent on social services, health care, or education. With respect to “public safety,” it is a reasonable question as to whether a wise investment is found in a harsh criminal justice response. Often, offenders leave prison more likely to commit future crimes.

Mens rea reform would itself be a significant accomplishment. While it may not eliminate all injustices, like law enforcement misconduct, such reform would advance efforts to address mass incarceration and overcriminalization. We must continue the small reform successes made regarding mens rea of the last decade. These small victories have been isolated, and mens rea reform is not yet organized like other centralized movements created for other areas of criminal justice reform. Almost all policy reform prospects are confronted with limitations initially, and we must keep demanding better from our system. Since our system purports to offer “justice,” the least it can offer offenders are criminal liability and punishments that are based upon, and limited to, guilty minds. 


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