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Default Mens Rea Requirements

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Bill notes the introduction of the Mens Rea Reform Act of 2017, S. 1902, by Senators Hatch, Lee, Cruz, Perdue, and Paul.  I agree with Bill and the Senators that congressional attention to mens rea is order.  I also agree that strict liability or a mental state of mere negligence should not be read into any criminal statute.  If Congress wants to create such a crime it must say so expressly.

Regrettably, though, this bill goes too far.  The American Law Institute's Model Penal Code gets it right in ยง 2.02(3).  The comment to that subdivision says:

Subsection (3) provides that unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established that if a purpose acted purposely, knowingly or recklessly with respect thereto.  This accepts as the basic norm what usually is regarded as the common law position.  More importantly, it represents the most convenient norm for drafting purposes.  When purpose or knowledge is required, it is conventional to be explicit.  And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly provided.

In the arguments made for this bill and its predecessor, I have yet to see a reason stated for omitting knowingly and recklessly from the default mental state.  My post last year on the predecessor bill is here.  If there is a good argument, let's hear it.

This is critically important.  I would support this bill if amended to follow the MPC provision.  I strongly oppose it in its present form.
Recklessness means far more than negligence.  Suppose a person drives down a street shooting the windows out of buildings at a time when people are likely to be inside.  He does it because he thinks it's cool to shoot out windows.  He does not know or care if anyone is actually inside or if they are hit by his bullets.  Is this person any less culpable for a resulting injury or death than someone who intentionally aimed at people?  Not substantially, in my opinion. 

CJLF briefed the mens rea issue in Elonis v. United States, a case I have discussed on this blog many times.  Elonis posted on his Facebook page, regarding his estranged wife:

There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it's not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.

Did Elonis make this threat with the intent to scare the hell out of his wife, did he merely know that it was likely to have that effect, or was he such a fool that he actually didn't know but was just extremely reckless?  In the famous words of Rhett Butler, "Frankly, my dear, I don't give a damn."  This slimeball is culpable in any of these cases, and he deserves significant jail time.

In the actual case, the court of appeals held on remand that the mens rea problem was harmless error, and the Supreme Court denied certiorari. The appellate court held, "The record contains overwhelming evidence demonstrating beyond a reasonable doubt that Elonis knew the threatening nature of his communications, and therefore would have been convicted absent the error." True, but if S. 1902 were the law "knowingly" would not be enough.  The government would also have to prove "willfully," meaning a conscious object to cause the forbidden result.

I have the greatest respect for Senator Hatch.  Getting the landmark habeas corpus reform included in the Antiterrorism and Effective Death Penalty Act of 1996 was a great achievement, and he has been a consistent friend of crime victims throughout his Senate career.  But he has been badly advised on this one.  All three of the Model Penal Code's mental states must be included in the default mens rea provision.

4 Comments

Now THIS is helpful information. Thank you, Kent.

Also, a question: Could an argument be made that passage of this "reform" bill would result in preemption of conflicting state laws that include knowledge and recklessness?

Notablogger, such an argument would be frivolous, but I know from long experience that does not mean it will not be made.

Thanks for this post, Kent. I think you are mistaken on two points. First, and most importantly, in federal law, the term "willful" does not impose an intent standard. Rather, it imposes a knowledge standard together with a requirement that one know that one's act is illegal. This is how SCOTUS mandated the interpretation of the term in Cheek v US. (In fact, MPC 2.02(8) says the term is to be interpreted as synonymous with knowledge, not intent. The federal standard goes beyond that, but not all the way to intent.) So, the proposed bill is imposing a default knowledge standard, first, and, second, it is requiring proof of knowledge of the illegality of one's act for guilt. This second requirement is, in my opinion, far too strong. There are plenty of people who are criminally culpable despite a sincere belief that their acts are not illegal. But this is a different problem from the one that you point out. Elonis, for instance, would still be guilty under the proposed standard since, among other things, some of his posts indicated that he had researched the law about what threats one could and could not make on Facebook. Further, as far as I can tell, the "willfulness" requirement would only come into play under the proposed bill if the statute in question contains no explicit information about mens rea. So it's not clear to me how frequently the government would be required to prove knowledge of illegality. Perhaps not all that often.

Second, you ask for an argument for a default knowledge standard, rather than a default recklessness standard. It's a fair request, and I don't have one. Like you, I would prefer to see a default recklessness standard, as under the MPC, and standard common law principles. However, the problem is not as serious as one might think thanks to federal willful ignorance doctrine. A lot of defendants who fall short of knowledge can still be shown to meet a knowledge standard thanks to the fact that their ignorance derives from a deliberate failure to inquire about the relevant information.

So, as I see it, the proposed bill is imperfect, but far better than what we currently have. I hope they pass it, or some better version of it.

Thanks again for your post!

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