Proportional Mens Rea and the Future of Criminal Code Reform

29 Pages Posted: 15 May 2017 Last revised: 20 Dec 2017

Michael Serota

Independent

Date Written: May 6, 2017

Abstract

This Article argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies. I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course. The Article is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Article. Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark. Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.

Suggested Citation

Serota, Michael, Proportional Mens Rea and the Future of Criminal Code Reform (May 6, 2017). Wake Forest Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2968395

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