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September 21, 2016

"Acceptance: The Missing Mental State"

The title of this post is the title of now-Dean (then-Prof) Alan Michaels' very first major law review article.  You can download the full 105-page(!) manuscript at this link, where you will also find this abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state-- called acceptance -- as a solution. Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the wilful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the wilful blindness doctrine) to push reckless conduct across the liability line to the knowledge side. These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.  The need for acceptance is also demonstrated in briefer examinations of three other criminal law areas: "knowledge of the law," attempt and battery.  In support of the practicability of acceptance as a measure of culpability, the article also surveys the criminal law's use of hypothetical questions to determine culpability in several other areas.  These include the doctrines of recklessness, entrapment, and the German concept of bedingter vorsatz.

September 21, 2016 in Recommended scholarship | Permalink


I am certain that the article addresses this question but, seeing as I do not have the time to read through a 105 page law review article at the moment, I am left needing to ask what sort of evidence is proposed to show that an actor would have still "acted even 'had he known' that his conduct would 'cause the harm?'" Apart from the actor expressing this himself, which seems doubtful, I am struggling to come up with a hypothetical that would satisfy this acceptance mental state, but not also satisfy the higher mental state of knowledge. Perhaps a criminal speeding, while fleeing the police, who strikes and kills a pedestrian would fit into this acceptance mental state. Maybe he would have still sped to get away from the authorities even with the knowledge that he would harm said pedestrian.

Posted by: Alex S. | Sep 22, 2016 7:54:29 AM

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