Two Sides of the Same Interpretive Coin: The Presumption of Mens Rea and the Historical Rule of Lenity

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
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.
Read More

Versari Crimes

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
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.
Read More

Conspiracy, Complicity, and the Scope of Contemplated Crime

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
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…
Read More

Judicial Application of Strict Liability Local Ordinances

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
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.
Read More

The Depths of Malice

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
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…
Read More

Autoerotic Asphyxiation and Accidental Death Insurance: Odd Facts Make Odd Law in Circuit Split

Online, Past Issues
Mike Brown*Full Article.I. IntroductionIt was a grim scene involving a famous actor, but this was no movie. Still, there was a mystery to be unraveled. The setting was a hotel room in Bangkok, Thailand.[1] In the closet hung the lifeless body of David Carradine, star of Quentin Tarantino’s “Kill Bill” films and 1970s television show “Kung Fu.”[2] An intricate web of ropes suspended him above the floor, wrapped around his neck and genitals.[3] The door to the hotel room was locked, and there was no sign that anyone other than Carradine had been there.[4] When asked, his friends were skeptical that he would commit suicide.[5]Authorities ultimately concluded the cause of Carradine’s death was autoerotic asphyxiation,[6] defined as an intentionally induced state of asphyxia that heightens sexual arousal during masturbation.[7] It…
Read More

Crime, DNA, and Family: Protecting Genetic Privacy in the World of 23andMe

2021, Past Issues, Print, Volume 53 (2021) Issue 1 (Spring)
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…
Read More

You Belong with Me: Retaining Authorship and Ownership of Sound Recordings

2021, Past Issues, Print, Volume 53 (2021) Issue 1 (Spring)
Delilah R. Cassidy* Full Article. “For years I asked, pleaded for a chance to own my work. . . . This is what happens when you sign a deal at fifteen to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says ‘Music has value[,]’ he means its value is beholden to men who had no part in creating it. . . . And hopefully, young artists or kids with musical dreams will read this and learn about how to better protect themselves in a negotiation. You deserve to own the art you make.” – Taylor Swift[1] I. Introduction Growing up, a girl named Taylor Swift was considered an outcast.[2] The kids at school thought she was “weird.”[3] Her feelings of loneliness, frustration, and rejection became all-consuming.[4] With…
Read More

Advancing Criminal Reform Through Ballot Initiatives

2021, Past Issues, Print, Volume 53 (2021) Issue 1 (Spring)
Nicholas Ansel* Full Article. I. Introduction 2020 brought the world’s attention to bear on American policing and the American carceral regime. After the murder of George Floyd on May 25, 2020, protests erupted in every state in America.[1] By early July, experts estimated that “about 15 million to 26 million people in the United States ha[d] participated in demonstrations,” representing “the largest movement in the country’s history.”[2] As of mid-October, Black Lives Matter demonstrations still continue in many cities.[3] America now cages more people than any other country in the history of Earth, incarcerating African Americans “at a rate six times that of South Africa during Apartheid.”[4] The murder of George Floyd represented a crystallization of the American criminal project’s treatment of black and brown communities, of marginalized communities, of…
Read More

Corporate Criminal Law Is Too Broad—Worse, It’s Too Narrow

2021, Past Issues, Print, Volume 53 (2021) Issue 1 (Spring)
Robert Thomas* Full Article. Abstract Corporate criminal law is built atop the doctrine of respondeat superior, whereby a business organization can be convicted for virtually any crime committed by its employee. Critics have noted for more than a century that this rule of attribution exposes businesses to the prospect of more criminal liability than is either just or efficient—in short, respondeat superior is overbroad. By contrast, virtually no attention has been paid to the fact that this same doctrine is also underbroad; in addition to including too much conduct under its ambit, respondeat superior also captures too little misconduct. However, this formal symmetry belies a deep, substantive asymmetry. The ambition of this project is to show that respondeat superior’s underbreadth problems are—or, at the very least, are becoming—both more serious…
Read More