Mens Rea Reform and Its Discontents

64 Pages Posted: 15 Jan 2019 Last revised: 19 Feb 2019

See all articles by Benjamin Levin

Benjamin Levin

University of Colorado Law School

Date Written: January 12, 2019

Abstract

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes. Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform. Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up—when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants. Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

Keywords: criminal law, criminal justice, criminal justice reform, mens rea, mens rea reform, overcriminalization, mass incarceration, statutory interpretation, strict liability, prosecutorial discretion, race, white collar crime, corporate crime, theories of punishment

JEL Classification: K14, K4, K42, P1, P16, Z16

Suggested Citation

Levin, Benjamin, Mens Rea Reform and Its Discontents (January 12, 2019). Journal of Criminal Law and Criminology, Forthcoming; U of Colorado Law Legal Studies Research Paper No. 19-2. Available at SSRN: https://ssrn.com/abstract=3264522

Benjamin Levin (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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