Category: 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…

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…