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Not Guilty as Charged: The Myth of Mens Rea for Defendants with Mental Retardation

68 Pages Posted: 24 Feb 2011 Last revised: 25 May 2012

Elizabeth Nevins-Saunders

New York University School of Law

Date Written: May 24, 2012


The notion that mens rea is an indicia of culpability runs deep in the American criminal law psyche. For most defendants, a finding that they had the requisite legal intent may be all we need to know to pronounce them morally culpable. This is because most defendants – those of average intelligence – enjoy a level of socialization, rationality, and agency sufficient to be aware of social norms, make a choice to violate them or not, and to control their own impulses in doing so. But for defendants with mental retardation, the state-of-mind element fails to accurately signify a “guilty mind.” Social science research makes clear (and existing neuroscience research seems to support) that these presumptions of consciousness, choice, and control do not apply to people with mental retardation. In essence, then, for this population, all offenses become strict liability offenses, where an intent inquiry is all but meaningless.

While the criminal law does make some allowances for differences in cognitive capacity, it does so only in very limited circumstances, through the doctrines of competency, insanity, and diminished capacity. As a result, litigants must resort to crude perversions of justice to introduce evidence of mental retardation. Finding no valid policy or theoretical justification (apart from incapacitation) for this failure to adequately address the disjuncture between actual culpability and criminal liability, this article offers a new, comprehensive approach to cases charging defendants with mental retardation. Specifically, it proposes a new default rule, where non-violent cases against them would be presumptively dismissed. More serious cases charging violent crimes could proceed to trial with the standard mens rea requirements, but would require that any sentence imposed be the least restrictive alternative necessary to accomplish an articulable sentencing goal. This proposal redresses a major flaw in current criminal law doctrine, one which unjustly permits a finding of guilty minds among defendants whose true culpability may not be presumed.

Keywords: mental retardation, intellectual disabilities, criminal law, mens rea, culpability, blame, intent

Suggested Citation

Nevins-Saunders, Elizabeth, Not Guilty as Charged: The Myth of Mens Rea for Defendants with Mental Retardation (May 24, 2012). 45 U.C. Davis. L. Rev. 1419 (2012). Available at SSRN: or

Elizabeth Nevins-Saunders (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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