The Uneasy Entente Between Insanity and Mens Rea: Beyond Clark v. Arizona

79 Pages Posted: 14 Feb 2007 Last revised: 17 Nov 2009

Stephen Morse

University of Pennsylvania Law School

Morris B. Hoffman

Second Judicial District Court Judge, State of Colorado

Abstract

There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them.

Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most part find it wanting. Then we turn to the constitutionality and wisdom of abolishing or limiting mens rea and legal insanity. We conclude that although it is probably constitutional to abolish legal insanity, robust doctrines of mens rea and the insanity defense itself must be maintained to insure that the criminal law imposes fair blame and punishment. We next canvas the alternatives to legal insanity, including the most contemporary, reasoned academic proposal, and find all insufficient to achieve justice. Finally, we respond to the increasing challenges to responsibility generated by new scientific findings about human behavior, especially by the new neuroscience, and suggest that these findings do not undermine core conceptions of personhood and responsibility.

Keywords: mens rea, insanity, blame, punishment, responsibility

Suggested Citation

Morse, Stephen and Hoffman, Morris B., The Uneasy Entente Between Insanity and Mens Rea: Beyond Clark v. Arizona. Journal of Criminal Law and Criminology, Vol. 97, p. 1071, 2008; U of Penn Law School, Public Law Working Paper No. 07-05. Available at SSRN: https://ssrn.com/abstract=962945 or http://dx.doi.org/10.2139/ssrn.962945

Stephen J. Morse (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Morris B. Hoffman

Second Judicial District Court Judge, State of Colorado ( email )

Denver, CO
United States

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