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

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

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

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