A "missing mental state" and a federal proposal for mens rea reform

As we start turning more deeply into mens rea issues, there are lots of topics we will cover (too) quickly that generate broad and deep academic and political debates.  I will sometimes use this space to highlight some of this broader debate, especially if I mention the debate in class in some way. (Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debate.)  So, two items as follow up from our recent classes:

1. I mentioned in class the work of OSU Law's Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's 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 willful 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 willful 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.

2. I mentioned in class that federal criminal law has never been fully or formally revised since the Model Penal Code was developed.  But there are often proposals for all sorts of reviews, and here is the full text from a notable press release, "Sens. Lee, Tillis, and Paul Introduce Mens Rea Reform Act," from last year describing a federal criminal law reform proposal:

Sens. Mike Lee (R-Utah), Rand Paul (R-Ky.) and Thom Tillis (R-N.C.) yesterday introduced the Mens Rea Reform Act of 2021, a bill that aims to reduce overcriminalization, rein in excessive regulation, and curb overzealous prosecutions.

As the power of the federal government has grown in size and scope, regulators and prosecutors have found ways to penalize activities that most Americans would view as innocent or non-criminal.  As a result, ordinary Americans have found themselves facing jail time for supposedly “criminal” activities like abandoning a snowmobile on federal land, accidentally diverting sewage backups to the wrong drain, or unknowingly selling goods to the wrong person.  In each of these cases, the government did not have to prove that the person knew or intended to commit a crime; they simply had to prove that the person committed the action.

Current federal law criminalizes all kinds of activities that most people would not know were criminal.  For example, “[p]lacing a vehicle or other object in such a manner that it is an impediment . . . to the . . . convenience of any person” on federal property or writing a check for less than $1 could earn someone six months in prison.  These crimes do not require the government to demonstrate that someone intended to do something wrong — merely that they engaged in the prohibited conduct.

Additionally, many of these so-called “criminal” statutes were written by unelected bureaucrats.  Agency regulators and prosecutors have used laws like the Clean Water Act for decades to punish conduct most Americans would view as innocent, or at least not criminal.

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American citizen is put behind bars,” Sen. Lee said. “Unfortunately, our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is a criminal justice system that over-penalizes innocent acts, which only undermines the rule of law.”

“We’ve unfortunately seen too many instances of commonsense and restraint not being used in the prosecution of Americans for innocent acts with no criminal intent,” said Sen. Tillis. “Our legislation will help curb unfair overcriminalization by requiring prosecutors to demonstrate guilty intent.”

The Mens Rea Reform Act would end this wrongful government overreach by establishing a default intent standard for all criminal laws and regulations. In other words, if a law does not require proof that the defendant intended to commit a crime, prosecutors would still have to demonstrate that the defendant possessed a guilty mind in order to convict.

Read the full bill text here.