Past Issues

Erik Luna Many of the modern challenges of mens rea, the mental state element of crime, stem from the purported ambiguities of legislation.1 Sometimes the issue involves uncertainty in interpreting a specified mental state—whether, for instance, “willfully” requires an appreciation that one is violating the law, thereby allowing claims of ignorance through a mistake-of-law defense. At other times, a mens rea requirement may raise questions as to its application within a statute, like whether to distribute an explicit mental state across the elements of a crime. But when these interpretive possibilities prove impossible as a matter of language or reason, or when a provision is entirely bereft of any culpable mental state, the issue takes on a distinctly normative character: whether to infer a mental state requirement based on a…

Joshua Kleinfeld A theory of a social practice must be able to carry a certain descriptive and interpretive burden: it must be able to account for those features of the practice so central to its character that, without them, the practice would become distorted or unrecognizable as a phenomenon in the social world. A theory of jazz music needs an account of improvisation; a theory of natural science needs an account of experimentation; a theory of democracy needs an account of voting. A theory with no place for these sorts of structural or architectural features is incompetent, revisionist, or, at the limit, not a theory of the practice (of jazz, of science, of democracy) at all. As Ernest Weinrib has argued in developing a theory of private law: “Within private…

Douglas Husak Suppose we believe that ignorance of wrongdoing should often absolve wrongdoers from blame, criminal liability, and punishment. If so, how should this normative belief be reflected in the structure of criminal law? One of many possible solutions is to include ignorance of wrongdoing (when it is exculpatory) within the scope of mens rea. In other words, we might adopt the following thesis: defendants who are unaware their conduct is wrongful do not commit the mens rea of the offense that (otherwise) proscribes their conduct. In this paper I explore what can be said for and against this thesis. I expect most theorists will resist it, and I readily admit that it is likely to have implications that should give us pause. But I believe this thesis also has…

Shon Hopwood In the last forty years, Congress has passed more than a thousand federal criminal laws,1 many of which are unclear on their face. Sometimes Congress omits important information and fails to define key terms. Other times it drafts criminal statutes so imprecisely that courts have found them unconstitutionally vague. And because its members often imagine the worst offenders when drafting criminal laws, Congress frequently writes laws so broadly as to include innocent conduct unrelated to the harms it intends to criminalize. As Professor Dan Kahan has noted, “[C]riminal statutes typically emerge from the legislature only half-formed.” Full Article.

Stephen P. Garvey Jonathan Stamp had a gun and a blackjack. Around a quarter to eleven a.m. on October 26, 1965, he entered the rear of the building housing the General Amusement Company’s offices. Together with Michael Koory, he was looking for cash. The employees were told to go to the front.4 Stamp then went to the office of Carl Honeyman, the company’s owner and general manager. Honeyman was sixty years old and overweight, with a history of heart disease. The amusement business, intensely competitive, added to the stress. Full Article.

Kimberly Kessler Ferzan One of the leading casebooks for the first-year Criminal Law course begins the mens rea discussion with Regina v. Cunningham.1 Cunningham, in need of money, decided to rip the gas meter off the residential gas pipe in his soon-to-be basement to steal the shillings inside. That Cunningham was guilty of theft was uncontroversial. The problem was that Cunningham did not turn off the gas, and it seeped into the adjacent home, partially asphyxiating the neighbor, Sarah Wade. Although the case is technically about the interpretation of the word “maliciously” in the Offences against the Person Act, the lesson students are to draw from it is broader: each crime should stand on its own culpability. The criminality inherent in being a thief is not the criminality inherent in…

Guyora Binder & Brenner Fissell The criminal code reform movement inspired by the Model Penal Code had, among other goals, the aim of eliminating strict liability offenses. The success of the movement resulted in the enactment of the Model Penal Code’s scheme of element analysis and default culpability terms in about half of American jurisdictions. Around the same time, though, a similar reform movement was occurring in local government law: the home rule movement, which advocated for greater political power for municipalities—including the power to criminalize conduct. Full Article.

Vera Bergelson. The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC has clarified and simplified mens rea categories by replacing numerous amorphous terms with just four rigorously defined mental states and provided default rules for the interpretation of those mental states as applied to each material element of an offense. The MPC framework has been extremely influential: it “has been adopted explicitly in more than half of American jurisdictions, and it often [guides] judicial interpretation [of mens rea] in the remaining jurisdictions as well.”3 However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the…

Victoria Romine* Full Article. Introduction In 2018, the capture of the “Golden State Killer,” also known as the “East Area Rapist” or the “Original Night Stalker,” captured the eyes of the nation.[1] The man responsible for at least thirteen murders and fifty rapes—crimes that many thought would never be solved—was taken into custody and charged with capital murder.[2] Why the sudden movement in a case that had been cold for over three decades? Joseph DeAngelo, the now-infamous serial killer, was definitively identified through DNA using a breakthrough new science: genetic genealogy.[3] At the time, the potential of this new method seemed boundless. The public began to speculate about how many cases could finally be resolved—even infamous cold cases that had haunted communities for decades.[4] The wait was short. Only two…