Editing Mens rea (section)

=== 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.