Judicial Exploitation of Mens Rea Confusion, at Common Law and Under the Model Penal Code

JurisdictionUnited States,Federal
Publication year2010
CitationVol. 18 No. 2

Judicial Exploitation of Mens Rea Confusion, at Common Law and Under the Model Penal Code

Robert Batey


American jurisdictions take two basic approaches to the mental requirement for a crime. A majority of the states and the federal system continue to apply the framework developed by the common law, allowing courts to construe crimes as requiring specific intent, general intent, strict liability, or one of the seemingly infinite shades of meaning along the continuum upon which these three concepts reside. A substantial minority use the structure reflected in section 2.02 of the Model Penal Code,[1] which deploys five discrete levels of culpability—purpose, knowledge, recklessness, negligence, and strict liability—according to relatively strict rules of judicial construction.

As in other legal fields, one would expect the common law approach to mens rea to have settled most of its significant issues long ago. Surprisingly, however, there are important fundamental mens rea questions that still have no clear answers: How should a court determine whether a particular criminal statute requires specific intent, general intent, or strict liability? And how should a court define those concepts? The persistence of such basic questions despite literally centuries of judicial attention suggests that courts have kept the answers vague, in order to maximize their power to define the mental requirement for crimes as they see fit. One purpose of this Article is to describe these attempts to maximize judicial power.

Judicial usurpation of the legislature's prerogative to define crimes seriously undermines the principle of legality, our societal commitment to prospective legislative definition of criminal offenses.[2] Reacting in part to this concern, the drafters of the Model Penal Code proposed, and numerous states subsequently adopted, a culpability structure with relatively clear definitions of mens rea requirements and rules about how and when to read these requirements into criminal statutes. Unfortunately, many courts in states implementing the Model Penal Code's methodology continue to flout its dictates, again in an apparent attempt to construe individual crimes according to the courts' policy preferences. The second major purpose of this work is to describe this development.

Part I of this Article discusses the common law methodology as exposed in recently decided cases. Part I.A.1 considers opinions deciding whether a particular criminal statute requires specific intent or general intent; Part I.A.2 discusses cases choosing between either specific or general intent on the one hand and strict liability on the other. Part I.B examines the varying definitions recent court decisions have given the slippery concept of general intent, while Part I.C explores the shades of meaning attributed to specific intent.

This work's much shorter Part II deals with the Model Penal Code approach, acknowledging that many recent decisions show fidelity to the Code's culpability rules. However, Part II also discloses the strong judicial propensity to ignore those rules, with regard to minimum culpability and strict liability, and to the definitions of recklessness, negligence, purpose, and knowledge. The parallelism between these decisions and those under the common law approach suggests a single cause for this whole range of legal phenomena: a judiciary unwilling to leave the definition of mental requirement to the legislature.

I. The Common Law Approach

Though common law courts have struggled with the concept of mens rea for several centuries, they are not appreciably closer to resolving basic questions such as when a particular crime requires proof of specific intent, general criminal intent, or no mens rea. Further, the courts following the common law approach continue to disagree on how to define both general intent and specific intent.[3] Recently decided cases, from the United States Supreme Court and other American jurisdictions using the common law methodology, disclose each of these confusions.

A. Specific Intent, General Intent, or Strict Liability

An assumption underlying the common law approach to mens rea is that legislatures are not careful in specifying the mental requirements of particular crimes.[4] Courts assume that legislatures have injected (or failed to inject) mens rea terms into statutory definitions of crimes with little thought to the precise implications of their actions; instead, it is the courts that should determine those implications, through construction of the terms used (or not used).[5] So the courts, rather than the legislature, decide whether a particular statute should require specific intent, general intent, strict liability, or some variation on one or more of these three themes. In doing so, judges are highly influenced by their own policy preferences when construing criminal statutes.

1. Specific Intent Versus General Intent

In the absence of clear statutory language, courts in jurisdictions following the common law approach must frequently determine whether a crime requires any specific intent, such as the intent "permanently to deprive" typically required for larceny and other theft offenses,[6] or the easier-to-prove general intent, which is typically inferred from the defendant's voluntary conduct.[7] For crimes with common law antecedents or analogues, history ought to provide the answer to this question. When historical research proves unavailing, a test implied by Oliver Wendell Holmes in The Common Law may provide reliable results. Holmes' test provides that specific intent should be required when the criminalized act does not reflect the harm society ultimately seeks to prevent (as in attempt and larceny).[8] But a survey of recent cases wrestling with the issue shows little adherence to these, or any other, principles; it is far easier to explain the results according to the prevailing judges' opinions about how easy it should be to prove the crime.

The Supreme Court's June 2000 decision in Carter v. United States[9] is exemplary. The Court divided five to four over whether the federal bank robbery statute requires specific intent or general intent, with the majority—the "conservative" bloc of Justices Rehnquist, O'Connor, Scalia, Kennedy, and Thomas—favoring the less demanding standard.[10] The majority, in an opinion by Justice Thomas, found little guidance in the language of the statute:

Whoever, by force or violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank . . . .[11]

While acknowledging that a "presumption in favor of scienter" exists in federal criminal law, the majority reasoned that this presumption "requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.'"[12] Justice Thomas determined that "[i]n this case, . . . a general intent requirement suffices to separate wrongful from ‘otherwise innocent' conduct,"[13] obviating the need for the specific intent "to steal or purloin" for which Carter argued.[14]

The four dissenters, in an opinion by Justice Ginsburg, relied more on the historical relationship between robbery and larceny to conclude that bank robbery, like bank larceny, should require a specific intent.[15] Invoking the rule that "courts should ordinarily read federal criminal laws in accordance with their common-law origins if Congress has not directed otherwise,"[16] Ginsburg set forth in simple terms the origins of robbery in larceny:

At common law . . . robbery was an aggravated form of larceny . . . .

. . . The elements of common-law larceny were also elements of robbery. First and most essentially, robbery, like larceny, entailed an intentional taking. . . . Second, . . . the taking in a robbery had to be "felonious," a common-law term of art signifying an intent to steal.[17]

Finding nothing in the adoption of the bank robbery statute to contradict this historical relationship, the dissenters would have accepted Carter's argument that the statute requires a specific intent.[18]

Because most agree that history is an appropriate guide for deciding whether a statute enforcing a common-law crime requires specific or general intent, the dissenters in Carter had by far the stronger argument. The Carter majority, however, apparently felt bound by no such rule;[19] instead, Justice Thomas and his colleagues opted for what they considered the more effective reading of the statutory language, within the broad perimeters of the "presumption of scienter."[20] As the majority noted, most federal circuit courts have reached a similar result,[21] suggesting the primacy of such "legislative" reasoning in cases of this sort.

Other Supreme Court opinions illustrate the same reasoning at work. Posters ‘N' Things, Ltd. v. United States,[22] a 1994 decision, considered the mens rea requirement of a now-superseded federal statute making it a crime "to make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia."[23] The statute's only indication of a mental requirement was its definition of "drug paraphernalia": "‘any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.'"[24] The defendants argued that the statute's "primarily intended or designed for use" language required the government to prove the defendant's subjective intent that the items sold be used with illegal drugs, a form of specific intent.[25] In support of this argument the defendants cited...

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