Mens Rea Reform and Its Discontents

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes. Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform. Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up—when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants. Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies

“Progressive” Prosecutors and “Proper” Punishments

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions of criminal justice reform

Prosecuting the Crisis

Over the past decade, activists and academics have celebrated the rise of the so-called “progressive prosecutor” movement. District attorney candidates—often former public defenders or civil rights lawyers—have promised to use prosecutorial discretion to address the injustices of the criminal system. A proliferation of such campaigns, and the electoral successes of some of these candidates have raised questions about progressive prosecution: what does it actually mean to be a progressive prosecutor? Does progressive prosecution work? Do progressive candidates follow through on campaign promises? And, how enthusiastic should defense attorneys, reformers, and critics of the carceral state be about progressive prosecution? The election of “progressive prosecutors” also has led to backlash, with resistance from police departments and efforts to impeach or recall prosecutors seen as “soft on crime.” In this Essay, I examine media and popular reactions to progressive prosecutors and what those reactions reveal about societal understandings of prosecutors and their function. Looking to the recall election and ouster of public defender-turned San Francisco DA Chesa Boudin as a case study, I focus on popular expectations of what it means to be a prosecutor. I argue that the specter of governmental failure and urban disorder continues to haunt contemporary discussions of prosecutorial policies. Media narratives about declining urban quality of life frame the issues—from homelessness and drug addiction to interpersonal violence—as crises that must be resolved via criminal law. Whether prosecutors are imagined as tough-on-crime punishers tasked with administering harsh justice or progressive regulators tasked with providing services and addressing structural inequality, they remain some of the most visible state actors on the local level. And so, for each issue—each crisis—the prosecutor becomes the responsible party and the face of the state’s response. Ultimately, I express concern about an overreliance on prosecutors. I argue that the common understanding of the DA’s office as the place where the government solves social problems will remain a significant impediment to any project of dismantling the carceral state

De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the criminal justice system....Without proof of guilt determined by a court, the presumption of innocence defines innocence

The Consensus Myth in Criminal Justice Reform

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually? This article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society. The article offers a typology of the two prevailing, but fundamentally distinct, critiques of the system: (1) the quantitative approach (what I call the “over” frame); and (2) the qualitative approach (what I call the “mass” frame). The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function. This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural phenomenon. This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities. To show how these frames differ, this article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization. The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably. No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems. While many reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns. Ultimately, then, this article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique

Response, Values and Assumptions in Criminal Adjudication

This Response to Andrew Manuel Crespo\u27s Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account largely takes for granted the unmitigated benefit of more data and more information. I argue that Crespo’s account understates the indeterminacy of systemic facts and the ways in which data rely on interpreters and interpretations. To the extent our criminal justice system already suffers from the assumptions and biases of judges and other official actors, granting those same actors the ability to interpret a wealth of data or “facts” need not dictate a move toward greater justice or greater accuracy. Rather, it might allow the same actors to reach the same decisions, supported by the same underlying assumptions, but bolstered by a powerful new dataset. Ultimately, systemic factfinding might highlight the problems with criminal courts, but it would not necessarily provide a vehicle for reform or redress