AuthorLevin, Benjamin


In an era of intense partisan gridlock, criminal justice reform has become a rare area that promises at least some slight space for compromise. (1) Indeed, recent years have seen a number of bipartisan bills introduced at the national level that, if passed, would take steps towards addressing structural issues in the administration of criminal law. (2) But compromise has not been without its challenges, and efforts at sweeping reform repeatedly have died on the cutting room floor. (3)

It is easy to imagine a range of potential sticking points in the effort to forge a bipartisan consensus: the extent to which social and economic programs should be a part of the legislation; how to treat "violent" crime; how much to spend on programs for incarcerated people or people with criminal records; what role questions of racial justice should play; and what prison sentences should be viewed as excessive. But one major obstacle on the road to federal criminal justice reform has been an unexpected one: mens rea reform. (4) Mens rea--a key component of the substantive criminal law and a staple of the first-year law school curriculum is the requirement that criminal conduct be accompanied by a "bad mind" or guilty mental state. (5)

Mens rea operates as a tricky issue of proof in many cases and when dealing with many statutes. Was a defendant malicious or negligent when she committed homicide? Did a defendant know that she was transporting heroin in her car, or was she merely reckless? But, judges, defendants, and prosecutors face particular problems when criminal statutes are silent as to mens rea--i.e., when a statute fails to specify what mental state a defendant possessed. (6) Does silence mean that the legislature intended to impose strict liability? Or should courts view silence as the result of sloppy drafting and read in some sort of mental state requirement? Reform would alter the existing federal criminal code by imposing a default mental state for all crimes. Congress still could pass strict liability criminal statutes, but those statutes would need to be explicit about the strict liability provisions.

So, why have these reform proposals generated such controversy and taken on such an important role in federal criminal justice reform policy? Certainly, mens rea is an important concept in criminal law, (7) and, legal scholars have devoted countless pages to examining the proper role of mens rea in assessing culpability and crafting criminal statutes. (8) But it is not an issue that has cropped up frequently in the growing public conversation about criminal justice reform. Questions about a defendant's mental state appear to have very little to do with concerns about racial disparities, police violence, or structural inequality. As protestors have taken to the streets and as editorial pages have filled with calls for fixing a broken system, mens rea reform has hardly been the rallying cry, or even an afterthought. (9) Yet mens rea reform proposals have taken on outsized significance as the latest stumbling block in the effort to address an unwieldy and seemingly limitless federal criminal system. (10) Among conservatives and libertarians, mens rea reform has become a key component of legislative efforts: the proliferation of laws that criminalize conduct even if defendants are unaware that they are acting unlawfully stands as a powerful illustration of big government and over-regulation run amok." For liberals, progressives, and many on the left, however, mens rea reform is not responsive to the real problems with criminal law: Republican proposals would serve deregulatory ends and make it harder to prosecute corporate, financial, or environmental crime, but the proposals would do little to address the plight of the poor people of color who make up a disproportionate part of the carceral population. (12)

This Article examines the debate over proposed mens rea legislation as a means of better understanding the contemporary criminal justice reform movement (or moment) and its limitations. With an eye to the relationship between criminal law and broader questions of political economy, I argue that the debate has much to tell us about the limits of criminal justice reform and the continued reliance on criminalization as a means of solving social problems. This Article explores the terms of the debate and reveals the fault lines that lurk below--and threaten to upset--the movement. I argue that the split on mens rea reform is not simply a left or right disagreement about regulated markets and the welfare state; it also reveals disagreements on the political left about the nature of the state and the proper role of criminal law and incarceration in efforts to advance equality and curb the abuses of capital. Where a long line of literature has explained mass incarceration as the exclusive product of tough-on-crime conservatism, (13) this Article joins a small but growing literature that examines left complicity in--and sometimes support for--the policies that built the carceral state. (14)

To be clear at the outset, I am not advocating for or against mens rea reform legislation as a desirable component of a broader package of criminal justice reform policies. Rather, I hope to demonstrate how the debate over mens rea reform--and, particularly, opposition to it from the political left--illustrates deeper pathologies in U.S. criminal policy. Recognizing these pathologies need not compel a specific policy outcome. But it should force reform opponents to recognize the distributional costs of continued reliance on a criminal regulatory model. (15) And, perhaps more importantly, it should force opponents to recognize the place of mens rea reform debates within the broader constellation of criminal policymaking and criminal justice reform. At its core, my claim is that meaningful change in the criminal system will require different groups and interests to move beyond criminalization and incarceration when they confront bad actors or bad conduct. It is easy to talk about reform, reducing sentences, or decriminalization in the abstract. It is much more difficult to embrace a decarceral posture when dealing with specific cases or specific conduct that one views as particularly pernicious.

This Article uses left and center-left opposition to mens rea reform as a way of appreciating the stickiness or intractability of "governing through crime." (16) To this end, my argument unfolds in four Parts: Part I briefly explains the broader context for mens rea reform proposals. I situate mens rea reform proposals within a discourse on overcriminalization and against the backdrop of strict liability offenses as a growing portion of the criminal code. Next, Part II introduces the statutory framework of mens rea reform, describes the recent legislative proposals, and shows how mens rea reform would work and how it might affect individual case outcomes. Part III tracks the debate over mens rea reform. In this Part, I examine both the sources of progressive opposition as well as core disagreements about the relationship between the carceral state and the regulatory state.

Finally, Part IV steps back to discuss the broader significance of these debates and why opposition to mens rea reform displays the shortcomings of progressive commitments to decarceration and criminal justice reform. In this Part, I identify three core pathologies of U.S. criminal policy and argue that opposition to mens rea reform reflects each of them: (1) a commitment to using criminal law as the default regulatory model; (2) a tendency to level up when faced with inequality (i.e., to punish the powerful defendant more, rather than punishing the powerless defendant less); and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants. To be clear, my claim is not that mens rea reform meaningfully addresses deeper structural flaws in the criminal system or that these bipartisan bills are without flaws. Rather, my claim is that the opposition marks a troubling inability to step outside of the criminalization paradigm. I conclude by arguing for a more capacious vision of criminal justice reform that would reject criminalization and incarceration as desirable vehicles for advancing social justice.


    The academic literature on mens rea reform generally skirts the distributional questions at the heart of conversations about mass incarceration. (17) This literature--unlike much contemporary criminal justice scholarship--frequently avoids issues of social marginalization, race, or structural inequality and instead focuses on questions of moral culpability, "rule of law", and "neutral" legal principles. (18) A primary goal of this Article is to reframe or reconsider debates about mens rea reform through the broader lens of mass incarceration, considering the distributional consequences of the proposals and their opposition. But, before stepping back to this larger frame, this Part situates mens rea reform in the context of the literatures from which it has grown: (1) the opposition to overcriminalization; and (2) the historical hostility to the use of strict liability in criminal law.


      Everything is a crime, and everyone is a criminal. (Well, almost.) That has become the refrain among a growing chorus of critics who decry the phenomenon of "overcriminalization." (19) Overcriminalization--the over- or mis-use of criminal law (20)--was first diagnosed by Sanford Kadish in the 1960s and has remained a topic of scholarly inquiry for the last fifty years. (21) Initially, the critique generally enjoyed traction on the civil libertarian left, where scholars identified morals legislation as a product of conservatism run amok; over time, though, the critique attracted voices on the right, which focused on regulatory crimes as...

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