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Default Mens Rea, Continued


Professor Gideon Yaffe of Yale Law School has posted a thoughtful comment to my post of last Thursday on the Mens Rea Reform Act of 2017, S. 1902.  I thank him for his comment and continue the discussion here.

Prof. Yaffe's first disagreement is that the term "willful" as used in federal criminal law is broader than I believe it is, and therefore setting willfulness as the default mens rea (which the bill does) would not be as harmful as I think.  He says that term does not require intent but rather that knowledge of the nature, probable result, etc. along with knowledge of the illegality is sufficient, citing Cheek v. United States (1991).

I see a couple of problems with relying on the case law definition of "willful."  First, as the Court has noted many times, "The word 'willfully' is sometimes said to be 'a word of many meanings whose construction is often dependent on the context in which it appears.' "  Bryan v. United States (1998).  Second, and more importantly, the bill contains its own definition:

"(4) the term 'willfully', as related to an element of an offense, means--

"(A) that the person acted with knowledge that the person's conduct was unlawful; and

"(B) if the element involves the nature, attendant circumstances, object, or result of the conduct of a person, that--

"(i) the person had knowledge of the nature, attendant circumstances, object, or result of his or her conduct; and

"(ii) it was the conscious object of the person to engage in conduct--

"(I) of that nature;

"(II) with that attendant circumstance;

"(III) with that object; or

"(IV) to cause such a result.

For crimes with an element of a result, a conscious object to cause that result is precisely the Model Penal Code definition of "purposely," the most restrictive form of mens rea requirement.  See MPC § 2.02(2)(a)(i).  The MPC defines "knowingly" for such an offense as being "aware or practically certain that his conduct will cause such a result."  See § 2.02(b)(ii).  The bill clearly excludes MPC "knowingly" as sufficient for this class of offenses. 
For offenses with an element involving "attendant circumstances" or "nature," the MPC's definition of "knowingly" is just awareness, while S. 1902 would again require "conscious object." 

The bill defines "knowingly" in MPC terms in §28(a)(2) but then oddly does not use that term as an independent form of mens rea in the default requirement.  The only subsequent use of "knowingly" in the bill is its inclusion in a long list of terms that statutes may use to define "state of mind."  It uses "knowledge" in the definition of "willingly" as one of two conjunctive requirements, but that's it.  Only "willingly," with its "conscious object" element, is included in the default mens rea requirement.

Thus, S. 1902 defines a default mens rea much more restrictive than MPC "knowingly."  For many, perhaps most, offenses it is equivalent to MPC "purposefully."

Second, Professor Yaffe believes that the bill's failure to include recklessness in the default mens rea is less harmful than I think it is because the willful ignorance doctrine will fill in the gap in most cases.  I have not researched this doctrine in federal case law sufficiently to know how broad this doctrine is, but in any case I would not rely on case law to supplement a statutory requirement that makes no reference to the case law and contains no mention of "willful ignorance."  With "willfully" being precisely defined in terms of "conscious object," a strong argument could be made that the statute would reject that body of law.

Is a flawed new statute better than the flawed status quo?  Professor Yaffe thinks so, but I do not agree.  As to statutory offenses, the status quo is not that bad.  The cases on mens rea, from Justice Jackson's classic Morrissette v. United States (1952) to recent cases such as Elonis, establish reasonable principles of interpretation where Congress has failed to specify a mens rea requirement.  The big problem is in crimes defined by regulation, and the potential for harm would be much less in a statute addressed specifically to that area.  Personally, I wouldn't mind if administrative agencies were stripped of the power to define crimes altogether.  That strikes me as an excessive delegation of legislative power to an executive agency.

In my view, then, this bill should not go forward unless and until it is either (1) amended to include MPC "knowingly" and "recklessly" in the default mens rea requirement (see MPC § 2.02(3)), or (2) amended to apply only to crimes defined in regulations rather than statutes.


Thanks for this followup post, Kent. I think I see your point, and it does shake my confidence in the proposed bill. I do, however, have one follow-up point to make that seems to me important. You read section (4)'s definition of "willfully" as imposing a purpose standard with respect to all of the elements. That's a natural way to read (4)(B)(ii) in isolation. But I have trouble reading that way when coupled with (4)(B)(i) which seems to explicitly impose a knowledge standard with respect to all the elements. If your reading of (4)(B)(ii) were correct, then it would make (4)(B)(i) irrelevant, and positively misleading. When the two subsections are read together, I take the statute to be imposing a knowledge requirement with respect to all the elements, and to be requiring also a showing that the conduct for which the defendant is to be held liable is intentional. So, for instance, Elonis would need to be shown to have known that his posts were threatening and to have intended to post something (which was in fact threatening, even if not intended by him to be so). Two further things in favor of my reading: it comports with how the term "willfully" is used in Cheek and other cases following it, and it makes sense of the use of the "conscious object" language, which never applies to circumstances under the MPC.

However, I do not claim that this is the only reasonable reading of the proposed statute. If it's the reading that Senator Hatch and colleagues have in mind, I hope that they will redraft the statute to make that clear.

In any event, thanks for this exchange. I look forward to reading your further thoughts about this as the legislation progresses.

Thanks for your comment. We really aren't very far apart on this issue, if I understand you correctly.

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