On Culpability and Crime: The Treatment of Mens Rea in the Model Penal Code

• Author: Herbert Wechsler
• Published date: 01 January 1962
• Date: 01 January 1962
• DOI: http://doi.org/10.1177/000271626233900104
• Published By: Sage Publications, Inc.

24

On

Culpability

and

Crime:

The

Treatment

of

Mens

Rea

in

the

Model

Penal

Code

By

HERBERT

WECHSLER

Herbert

Wechsler,

LL.B.,

New

York

City,

New

York,

is

Harlan

Fiske

Stone

Professor

of

Constitutional

Law,

Columbia

Law

School,

where

he

has

been

a

member

of

the

Faculty

of

Law

since

1933.

He

has

served as

Assistant

Attorney-General

of

the

United

States

and

in

other

public

positions.

Since

1952

he

has

been

Chief

Reporter

for

the

American

Law

Institute’s

Model

Penal

Code.

Among

his

publications

are

Criminal

Law

and

Its

Administration,

with

Jerome

Michael

(1940) ;

The

Federal

Courts

and

the

Federal

Sys-

tem,

with

Henry

M.

Hart,

Jr.

(1953) ;

Principles,

Politics

and

Fundamental

Law

(1961).

ABSTRACT:

When

conduct

has

the external

attributes

of

a

crime,

should

further

mental

elements

be

required

for

convic-

tion,

and,

if

so,

what

should

they

be?

Decisions

have

too

frequently

been

imprecise

in

analysis

and

inconsistent

in

re-

sults,

yielding

a

multitude

of

single

instances

which

in

the

ag-

gregate

dilute

the

moral

force

that

should

attach

to

condemna-

tion

of

behavior

considered

criminal.

Criminal

liability

may

justly

be

based

only

upon

conduct

which

includes

a

voluntary

act

or

the

omission

to

perform

an

act

which

the

actor

was

physically

able

to

perform.

Act

or

omission

are

essential

pre-

requisites

to

liability,

but

they

are

not

sufficient

to

establish

culpability.

The

Model

Penal

Code

proposes

four

concepts

to

describe

the

kinds

of

culpability

which

are

sufficient

to

es-

tablish

liability:

purpose,

knowledge,

recklessness,

or

negli-

gence.

The

doctrine

of

strict

liability,

ignorance

and

mistake

of

fact,

intoxication,

and

ignorance

and

mistake

of

law

are

pertinent

to

establishing

liability.

One

of

the

most

conten-

tious

problems

of

the

penal

law

concerns

the

criteria

that

should

determine

when

individuals

whose

conduct

would

otherwise

be

criminal

ought

to

be

exculpated

on

the

ground

that

they

were

suffering

from

mental

disease

or

defect

when

they

acted.

The

Model

Penal

Code

would

exculpate

the

person

who,

as

a

re-

sult

of

mental

disease

or

defect,

lacked

substantial

capacity

either

to

appreciate

the

criminality

of

his

conduct

or

to

con-

form

his

behavior

to

the

requirements

of

law.—Ed.

25

EVERY

body

of

penal

law

presents

a

plethora

of

problems

which

are

general,

in

the

sense

that

they

arise

whatever

the

specific

crime

that

is

in-

volved.

One

group

of

problems

of

this

order

has

a

large

procedural

dimension,

including

jurisdiction,

burden

of

proof,

double

jeopardy,

immunity.

A

second

group

is

penological,

for

example,

the

sentences

that

may or

must

be

passed

upon

conviction,

the

rights

of

prisoners,

the

duties

and

powers

of

the

various

administrative

organs

of

correction.

A

third

group

involves

issues

as

to

the

existence

or

the

scope

of

liability

and

grounds

of

exculpation.

This

paper

is

addressed

to

this

third

group

of

prob-

lems,

which

pose

basic

questions

as

to

when

the

penal

sanction

rightly

may

be

used.

The

issues,

it

will

be

recognized,

have

engaged

the

consideration

of

jurists

and

philosophers

throughout

the

history

of

thought.

When

conduct

has

the

exter-

nal

attributes

demanded

by

the

defini-

tion

of

a

crime,

should

further

mental

elements

be

required

for

conviction

and,

if

so,

what

should

they

be?

Should

it

suffice

to

exculpate

the

actor

that

he

was

unaware

of

the

offensive

aspects

of

his

conduct

or

that

he

believed

them

non-

existent

because

of

a

mistake

of

fact

or

law?

If

crimes

are

defined

in

terms

of

causing

a

particular

result,

as

in

the

case

of

homicide,

what

modes

of

cau-

sality

provide

sufficient

causal

nexus?

What

conduct

should

be

held

to

make

one

an

accomplice

in

a

crime

committed

by

another

person

or

lay

the

basis

for

vicarious

accountability?

May

corpora-

tions

or

associations

be

convicted

of

of-

fenses

and,

if

so,

upon

what

grounds?

What

ought

to

be

the

bearing

on

lia-

bility

or

on

responsibility

of

age,

men-

tal

disease

or

defect,

intoxication,

duress

or

entrapment?

When

is

conduct,

which

otherwise

would

constitute

a

crime,

justi-

fiable

because

it

serves,

or

is

believed

by

the

actor

to

serve,

some

higher

social

purpose?

How

far

should

attempt,

solicitation,

or

conspiracy

to

commit

crimes

be

treated

as

offenses,

even

though

the

criminal

objective

has

not

been

achieved,

and

with

what

gravity

should

such

inchoate

crimes

be

viewed?

General

formulation

It

is

obvious

that

a

mature

and

well-

articulated

legal

system

will

resolve

such

problems

in

substantial

part

by

general

provisions,

deemed

to

qualify

or

supple-

ment

the

definitions

of

specific

crimes,

save

as

discrete

exceptions

may

be

made

on

special

grounds

of

policy.

Such

gen-

eral

formulations

serve

the

formal

legis-

lative

purpose

of

avoiding

the

necessity

of

a

redundant

treatment

of

recurrent

questions.

They

also

serve,

however,

the

basic

substantive

objective

of

pro-

moting

the

equality

and

rationality

of

dispositions

by

subjecting

all

adjudica-

tions

to

the

discipline

of

standards

based

on

values

that

should

animate

the

sys-

tem

as

a

whole.

No

doubt

for

reasons

such

as

these,

the

newer

European

penal

codes

have

long

been

organized

in

general

and

spe-

cial

parts,’-

with

a

substantial

effort

in

the

former

to

articulate

an

integrated

set

of

principles

addressed

to

these

per-

vasive

problems

of

the

field.

In

the

United

States,

however,

as

in

Britain,

legislative

treatment

of

these

matters

has

been

relatively

sparse

and

often

in-

determinate

in

meaning.2

This

situa-

tion

has

created

difficulty

for

the

courts

1

See,

e.g.,

Gerhard

O.

W.

Mueller,

The

Ger-

man

Draft

Criminal

Code

1960,

1961

ILLINOIS

LAW

FORUM,

No. 1,

p.

25.

The

limited

de-

velopment

of

the

general

part

in

the

Na-

poleonic

Code

of

1810

is

discussed

by

Marc

Ancel

in

his

introduction

to

THE

FRENCH

PENAL

CODE

6

(Mueller

ed.

1960).

2 See,

e.g.,

Herbert

Wechsler,

The

Challenge

of A

Model

Penal

Code,

65

HARV.

L.

REV.

1097,

1100

(1952);

Frank

J.

Remington

and

Orrin

L.

Helstad,

The

Mental

Element

in

Crime—A

Legislative

Problem

[1952]

WIS.

L.

REV.

644.