Traditionally, most crimes require both a guilty act and a guilty mind. "Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said. Professor John Baker of LSU Law has this article in the BNA Criminal Law Reporter on the erosion of the "mens rea" requirement. Here is the concluding paragraph (footnotes omitted):
Fifty years after promulgation of the MPC in 1962 is an appropriate point for a serious debate about and assessment of the adequacy of the MPC's framework on culpability. The MPC's elements of culpability are analytically advanced but are not necessarily easily understood. A recent empirical study indicates that jurors have difficulty distinguishing ''knowingly'' from ''recklessly.'' More importantly, as discussed in this article, the MPC's operating premises and radical changes to the common law may have been contributing causes--not the solution--to the erosion of the requirement that all crimes require culpability. It may be a good time to reconsider the MPC's ''radical change in the law of mens rea, one of the core principles of the common law [that] drew little criticism from commentators'' other than Professor Hall. The erosion of mens rea since the advent of the MPC suggests the need to embrace Hall's insistence that the particular rules reflect the primacy of the principle of mens rea in criminal law.I agree that mens rea is an important element of culpability, and we should resist and in some cases reverse its erosion. As Justice Holmes's comment implies, though, the mental states involved are quite rudimentary. The notion that a human being can be too drunk to form intent while still engaging in clearly goal-directed behavior is nonsense.