Decarceration and Default Mental States
23 Pages Posted: 1 Sep 2021 Last revised: 8 Mar 2022
Date Written: October 5, 2020
This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.
Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer. To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses. The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements. Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable—problems of structure, rather than scope.
Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics. I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights—these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment. Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement. Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.
Keywords: mens rea reform, criminal justice reform, abolition, criminal law, criminal justice, strict liability, white-collar crime, progressivism, right on crime, theories of punishment
JEL Classification: K14, K42
Suggested Citation: Suggested Citation