Editing Mens rea (section)

== Levels of ''mens rea'' within the United States ==
Under the tradition of common law, judges would often require a "bad state of mind" in addition to an action or omission (''[[actus reus]]'') to find a criminal guilty.<ref name=":02"/><ref>"[T]he mental state element that is part of the definition of most criminal offenses, is crucial to culpability and central to our value as moral beings." Stephen J. Morse, ''Inevitable Mens Rea'', 27 Harv. J.L. & Pub. Pol'y 51, 51–52 (2003).</ref><ref>"The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." ''Smith v. People of the State of California'', 361 U.S. 147, 150, 80 S. Ct. 215, 217 (1959)</ref> Over time, culpable mental states (''mens rea'') became varied among different types of crimes.<ref name=":02" /> Such crimes and mental states might include, for example, "malice" for murder, "fraudulence" for fraud, "willfulness and corruption" for perjury, and so on.<ref name=":02" /> The crime of manslaughter, further, might not even require a "bad mind" but simply a "negligent" one.<ref name=":02" /> Regardless of how the requirements are categorized, the Supreme Court has explained ''mens rea'' requirements for crimes are "universal" and essential to "mature systems of law", even going so far as to say that this belief undergirds notions of free will and morality.<ref>"As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly 'is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.'" ''Rehaif v. United States'', 139 S. Ct. 2191, 2196 (2019) (citing ''Morissette'', 342 U.S. at 250).</ref>

Within the United States, there is no single encompassing criminal law. Criminal laws are passed and enforced by the states‚ or the federal government, but each of these criminal "codes" vary and may or may not draw from the same theoretical sources.<ref>Markus Dubber, "The American Law Institute's Model Penal Code and European Criminal Law" in André Klip ed., Substantive Criminal Law of the European Union (Maklu, 2011), at 2.</ref>

=== State criminal law ===
The vast majority of criminal prosecutions in the United States are carried out by the [[U.S. state|several states]] in accordance with the laws of the state in question. Historically, the states (with the partial exception of [[Civil law (legal system)|civil-law]] [[Louisiana]]) applied common law rules of ''mens rea'' similar to those extant in England, but over time American understandings of common law ''mens rea'' terms diverged from those of English law and from each other. Concepts like "general intent" and "specific intent" dominated classifications of mental states in state common law,<ref>"Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.4, https://crsreports.congress.gov/product/pdf/R/R46836/1</ref><ref>INTENT, Black's Law Dictionary (11th ed. 2019)</ref><ref>"Much of the existing uncertainty as to the precise meaning of the word 'intent' is attributable to the fact that courts have often used such phrases as 'criminal intent,' 'general intent,' 'specific intent,' 'constructive intent,' and 'presumed intent.' 'Criminal intent,' for example, is often taken to be synonymous with ''mens rea,'' the general notion that except for strict liability offenses some form of mental state is a prerequisite to guilt." § 5.2(e) 'Criminal,' 'constructive,' 'general,' and 'specific' intent, 1 Subst. Crim. L. § 5.2(e) (3d ed.)</ref> but by the late 1950s to early 1960s, the common law of ''mens rea'' was widely acknowledged to be a slippery, vague, and confused mess.{{sfn|Dubber (2002)|pages=60-80}}<ref>"Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.3, https://crsreports.congress.gov/product/pdf/R/R46836/1</ref> This was one of several factors that led to the development of the Model Penal Code.<ref>''United States v. Bailey'', 444 U.S. 394, 403–04 (1980) ("At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. . . . This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified in the American Law Institute's Model Penal Code . . .")</ref> Nevertheless, states continue to use mental states beyond or besides those listed in the Model Penal Code.<ref>"In ''Commonwealth v. Webster'', Shaw, C.J. described malice as a state of mind which includes not only anger, hatred and revenge, but every other unlawful motive." § 106. Malice, 32 Mass. Prac., Criminal Law § 106 (3d ed.)</ref><ref>"In criminal law, mental states run from bad to worse roughly in order of negligence, recklessness, knowledge, and purpose, with willfulness, maliciousness, and similar adjunct mental states interspersed at various levels in that hierarchy." 17 Cal. Jur. 3d Criminal Law: Core Aspects § 129</ref><ref>The Penal Law provides that when the commission of an offense, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "''intentionally''," "knowingly," "recklessly," or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge. 35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26 (specifying "intentionally" as a state opposed to "purposefully" and including mental states like "fraud")</ref><ref>26 Ohio Jur. 3d Criminal Law: Procedure § 886 (categorizing mens rea according to general and specific intent)</ref>

Supreme Court Justice [[Stephen Breyer]] described the distinction between the two systems in his dissent in ''Delling v. Idaho'':<ref>{{cite web |title=Delling v Idaho |url=https://www.theusconstitution.org/wp-content/uploads/2017/12/Delling_v_Idaho_Cert_Amicus_Final-1.pdf}}</ref>

{{blockquote|Case One: The defendant, due to insanity, believes that the victim is a wolf. He shoots and kills the victim.}}
{{blockquote|Case Two: The defendant, due to insanity, believes that a wolf, a supernatural figure, has ordered him to kill the victim.}}
{{blockquote|In Case One, the defendant does not know he has killed a human being, and his insanity negates a mental element necessary to commit the crime. In Case Two, the defendant has intentionally killed a victim whom he knows is a human being; he possesses the necessary mens rea.}}
{{blockquote|In both cases the defendant is unable, due to insanity, to appreciate the true quality of his act, and therefore unable to perceive that it is wrong. But … the defendant in Case One could defend the charge by arguing that he lacked the mens rea, whereas the defendant in Case Two would not be able to raise a defense based on his mental illness.}}

=== Federal criminal law ===
Since the federal government of the United States does not have a generalized [[Police power (United States constitutional law)|police power]] like that of the states, the scope of its criminal statutes is necessarily circumscribed.<ref>''[[United States v. Lopez]]'', {{ussc|514|549|1995}}.</ref> Ordinary prosecutions are the province of the states, and only crimes connected to the constitutional powers may be pursued by the federal government.<ref>"In our federal system, 'Congress cannot punish felonies generally,' ''Cohens v. Virginia,'' 6 Wheat. 264, 428, 5 L.Ed. 257 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one." ''Torres v. Lynch'', 578 U.S. 452, 457 (2016).</ref> Nevertheless, the Supreme Court holds that required ''mens rea'' is an essential element of federal criminal offenses.<ref>In determining Congress' intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding "each of the statutory elements that criminalize otherwise innocent conduct." ''Rehaif v. United States'', 139 S. Ct. 2191, 2195 (2019).</ref><ref>". . . we must construe the statute in light of the background rules of the common law . . .  in which the requirement of some ''mens rea'' for a crime is firmly embedded." ''Staples v. United States'', 511 U.S. 600, 605, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 (1994)</ref> Consequently, Title 18 of the [[United States Code]] does not use the aforementioned culpability scheme but relies instead on more traditional definitions of crimes taken from common law.<ref>{{Cite web |title=Office of the Law Revision Counsel, United States Code |url=https://uscode.house.gov/browse/&edition=prelim}}</ref> For example, ''malice aforethought'' is used as a requirement for committing capital murder,<ref name=":62">{{Cite web |title=18 USC §1111: Murder. |url=https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1111&num=0&edition=prelim}}</ref>{{sfn|Dubber (2002)|p=55}} and the Supreme Court has applied mental states such as "willfully."<ref>''Dixon v. United States'', 548 U.S. 1, 5 (2006)</ref><ref>''Bryan v. United States'', 524 U.S. 184, 192 (1998).</ref>

=== Model Penal Code ===
Because the landscape of criminal law varied from state to state, the [[American Law Institute]] (which issues "restatements" of American legal jurisprudence) declined to issue a restatement of criminal law in favor of a "model" code for states to issue new, standardized criminal law.<ref name=":1">{{Cite journal |last1=Robinson |first1=Paul |last2=Dubber |first2=Markus |date=2007-07-27 |title=The American Model Penal Code: A Brief Overview |url=https://scholarship.law.upenn.edu/faculty_scholarship/131 |journal=New Criminal Law Review|volume=10 |issue=3 |pages=319–341 |doi=10.1525/nclr.2007.10.3.319 |hdl=1807/87911 |hdl-access=free }}</ref> This [[Model Penal Code]] ("MPC") was completed in 1962, and received praise from legal scholars for its reformulation of criminal law.<ref name=":2">American Law Institute. Model Penal Code. "Forward."</ref><ref>"As all criminal law scholars understand, the Model Penal Code is one of the great intellectual accomplishments of American legal scholarship of the mid-twentieth century." Gerard E. Lynch, ''Revising the Model Penal Code: Keeping It Real'', 1 Ohio St. J. Crim. L. 219 (2003)</ref> Although not all states follow the criminal law as constructed within the MPC, over 34 states had adopted part or substantially all of the MPC as law by 1983.<ref name=":2" /> The federal government has not adopted the MPC, although it has attempted to do so for many decades.<ref name=":1" />

The formulation of ''mens rea'' set forth in the [[Model Penal Code]] has been highly influential throughout the United States in clarifying the discussion of the different modes of culpability since its publication.{{sfn|Dubber (2002)|pages=60-80}}<ref name=":1" /> The following levels of ''mens rea'' are found in the MPC §2.02(2),<ref>Blond, N. C., [https://books.google.com/books?id=ANO2Pp6TGToC ''Criminal Law''] ([[Alphen aan den Rijn]]: [[Wolters Kluwer]], 2007), pp. 60–62.</ref><ref name=":32"/>{{rp|60–62}} and are considered by the United States Supreme Court to be the four states of mind that give rise to criminal liability:<ref>"We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence." ''Borden v. United States'', 141 S. Ct. 1817, 1823, 210 L. Ed. 2d 63 (2021)</ref>

* ''[[Criminal negligence|Negligently]]'': a "reasonable person" ought to be aware of a "substantial and unjustifiable risk" that is a "gross deviation" from a normal standard of care.<ref name=":4">''Borden v. United States'', 141 S. Ct. 1817, 1824 (2021).</ref>
* ''[[Recklessness (law)|Recklessly]]'': the actor "consciously disregards a substantial and unjustifiable risk" in "gross deviation" from a normal standard of care.<ref name=":4" />
* ''Knowingly'': the actor is "practically certain" that his conduct will lead to the result,<ref name=":5">''Borden v. United States'', 141 S. Ct. 1817, 1823 (2021).</ref> or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist.
* ''Purposefully'': the actor ''consciously'' engages in conduct and "desires" the result. The Supreme Court has not found a large difference between purposeful and knowing conduct, not only in theory but also in application.<ref name=":5" />

The above mental states also work in a hierarchy, with ''negligence'' as the lowest mental state and ''purposefully'' as the highest: a finding of purposefully/intentional establishes a state of knowingness, recklessness, and negligence; a finding of knowingness establishes a finding of recklessness and negligence, and a finding of recklessness establishes a state of negligence.<ref name=":32" /><sup>(5)</sup><ref>[https://statutes.capitol.texas.gov/Docs/PE/htm/PE.6.htm#6.02 ''See e.g.'', Tex. Penal Code Ann. § 6.02(e)]</ref>

The MPC also recognizes culpability not because of a mental state, but for crimes that are legislatively proscribed due to the imposition of "absolute liability."<ref>Model Penal Code § 2.05</ref> Strict liability crimes will require evidence of such legislative intent, and courts seriously examine such evidence before assuming a crime permits strict liability rather than a mens rea.<ref>"Absent statutory language expressly imposing absolute liability, the states of mind denominated in HRS § 702–204 will generally apply because we will not lightly discern a legislative purpose to impose absolute liability." State v. Eastman, 913 P.2d 57, 66, 81 Hawai'i 131, 140 (Hawai i,1996)</ref>

* ''[[Strict liability]]'': the actor engaged in conduct and his mental state is irrelevant.<ref>"The only proof required to convict an individual of an absolute liability offense is that an individual engaged in the prohibited conduct." 21 Am. Jur. 2d Criminal Law § 127</ref> This ''mens rea'' may only be applied where the forbidden conduct is a mere violation, i.e. a [[civil infraction]].

=== Differences between common law crimes and MPC crimes ===
The elements constituting a crime vary between codes that draw on common law principles and those that draw from the Model Penal Code. For example, the ''mens rea'' required of murder in federal law under the [[United States Code]] is distinct from the ''mens rea'' of murder under the [[Texas Penal Code]] (which adopted the Model Penal Code in 1974<ref name=":2" /><ref name=":1" />):
{| class="wikitable"
|+
!18 U.S.C. §1111<ref name=":62" />
!Texas Penal Code §19.02<ref>{{Cite web |title=Texas Penal Code Title 5, Chapter 19, Section 2 |url=https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm#19.02}}</ref>
|-
|Murder is the unlawful killing of a human being with [[malice aforethought]].
|A person commits an offense if he: (1) intentionally or [[Knowledge (legal construct)|knowingly]] causes the death of an individual.
|}
In the common law approach as under 18 U.S.C. §1111, the definition of murder includes an ''[[actus reus]]'' (the unlawful killing of a human being) and a common law ''mens rea'': [[malice aforethought]]. Modern criminal law approaches the analysis somewhat differently. Using a framework from the American Law Institute's Model Penal Code, homicide is a "results" offense in that it forbids any "purposeful" or "knowing" conduct that causes, and therefore ''results'' in, the death of another human being. "Purposeful" in this sense means the actor possessed a conscious purpose or objective that the result (i.e. the death of another human being) be achieved. "Knowing" means that the actor was aware or practically certain that a death would result, but had no purpose or desire for it to occur. By contrast with traditional common law, the Model Penal Code specifically distinguishes purpose and knowledge to avoid confusion regarding "intent" elements.<ref>"Yet, because there are several areas of the criminal law in which there may be good reason for distinguishing between one's objectives and knowledge, the modern approach is to define separately the mental states of knowledge and intent (sometimes referred to as purpose, most likely to avoid confusion with the word 'intent' as traditionally defined)." The modern view: intent and knowledge distinguished, 1 Subst. Crim. L. § 5.2(b) (3d ed.).</ref> Many states still adhere to older terminology, relying on the terms "intentional" to cover both types of ''mens rea'': "purposeful" and "knowing".<ref>[[Sherry Colb|Colb, S. F.]], [https://verdict.justia.com/2012/01/11/why-cant-jurors-distinguish-knowing-from-reckless-misconduct "Why Can't Jurors Distinguish 'Knowing' From 'Reckless' Misconduct?"], ''[[Justia]]'', January 11, 2012.</ref>

=== Limits and criticisms of MPC ''mens rea'' ===
Not all states have adopted the MPC, and for states that have, application of the Model Code varies.<ref>"On the other hand, there is no uniform code that actually exists as law in all fifty states. While the Model Penal Code (MPC) may serve as a useful stand-in for such a uniform law, few, if any, states have adopted the MPC in its entirety, and most have rung interesting changes on it, accepting some parts and rejecting or modifying others. The result is that, as one wag has put it, criminal law professors are presented with the choice of teaching dead law (the common law) or mythical law (the MPC)." Chad Flanders, ''The One-State Solution to Teaching Criminal Law, or, Leaving the Common Law and the Mpc Behind'', 8 Ohio St. J. Crim. L. 167 (2010)</ref> Despite its attempt to standardize criminal law, this variance has resulted in confusion and criticism. Some scholars have criticized the levels of culpability in the current Model Penal Code as insufficient or needing revision.<ref>{{Cite journal |last=Baron |first=Marcia |authorlink=Marcia Baron|date=2019-09-28 |title=Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide |url=https://link.springer.com/article/10.1007/s11572-019-09509-5 |journal=Criminal Law and Philosophy |volume=14 |issue=1 |pages=69–89 |doi=10.1007/s11572-019-09509-5 |s2cid=204394428 |issn=1871-9791|url-access=subscription }}</ref><ref>{{Cite journal |last=Simons |first=Kenneth W. |date=2003 |title=Should the Model Penal Code's Mens Rea Provisions Be Amended? |url=http://dx.doi.org/10.2139/ssrn.397642 |journal=SSRN Electronic Journal |doi=10.2139/ssrn.397642 |hdl=1811/72582 |issn=1556-5068|hdl-access=free }}</ref> Scholars' allegations include incoherency from conflicted philosophical commitments,<ref>"To a large extent, the ambiguities surrounding the ''mens rea'' concept are the product of an ongoing historical process of accommodating within a single system of criminal law the virtues of two sometimes conflicting philosophical traditions: retributivism and utilitarianism. That the meaning of the 'guilty mind' requirement vacillates and evolves over time is therefore hardly surprising given the dynamics of the relationship between retributive and utilitarian theory." Martin R. Gardner, ''The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present'', 1993 Utah L. Rev. 635, 640 (1993)</ref> or the federal governments' failure to explicitly adopt the Model Penal Code resulting in departure from common law precedents.<ref>"However, the law of mens rea is riddled with exceptions and qualifications, and some clarity is badly needed. The Supreme Court continues to confront the doctrine, and it is apparent that a bright line rule is needed to bring coherence to the doctrine of criminal intent and provide guidance to the federal judiciary." Connor B. McDermott, ''Mess Rea'', 25 Lewis & Clark L. Rev. 607, 643–44 (2021)</ref> Since the publication of the MPC, confusion has also occurred where norms towards crimes have also changed: especially regarding sexual crimes, hate crimes, drug crimes, and digital crimes.<ref name=":7">[[Joshua Dressler]], ''The Model Penal Code: Is It Like A Classic Movie in Need of A Remake?'', 1 Ohio St. J. Crim. L. 157, 158-159 (2003).</ref> But while some scholarship argues that commitment to reforms gave way to "cynicism and fatigue,"<ref name=":7" /> others argue the original commitment of the MPC to "imprisonment as a last result" should be preserved in potential revisions to the Code and criminal law.<ref>"In particular, the original MPCS' bold and forceful commitment to imprisonment as a last resort and least-preferred reality, both at the time of sentencing and at all times thereafter, is a refreshing and needed perspective in an era of mass incarceration and extreme punishment terms. A fitting sense of imprisonment's horrible human realities, not to mention its inefficacies, is palpable in the original MPCS. In the MPCS revision, sentencing and imprisonment has the feel of a technical government challenge, rather than a necessary evil within a society committed to human liberty and personal freedoms." Douglas A. Berman, ''The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions'', 61 Fla. L. Rev. 709, 722 (2009).</ref>

Rather than dwell on philosophical or normative arguments, some scholars have looked to evidence-based arguments to update the Code. In an empirical study, participants were presented with scenarios and asked to rate how deserving of punishment the scenario was.<ref>Matthew R. Ginther, [https://scholarship.law.vanderbilt.edu/vlr/vol67/iss5/2 "The Language of Mens Rea"], 67 Vanderbilt Law Review 1327 (2019)</ref> The results showed that participants' judgments matched up with the hierarchy of ''mens rea'' in the MPC, but also found that participants struggled most with "recklessness" scenarios. As a result, the study suggests revising the language of the categories.