Law & Contemporary Problems
This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of offenses is widespread, and sometimes non-controversial. Yet courts lack reliable interpretive practices to determine which elements do not carry mens rea requirements in accord both with congressional intent and criminal law’s normative commitments to culpability as a prerequisite for punishment In a survey of recent federal court decisions, I identify two competing understandings of the culpability required to justify criminal punishment, especially with regard to distinctions in punishment between less and more serious wrongdoing.
One approach in the case law, endorsed recently by the U.S. Supreme Court, follows a principle of proportionate culpability. This principle holds that punishment should be in proportion to an actor’s fault, and it leads to interpretative decisions by courts that attach mens rea requirements to every normatively significant element of an offense. This principle is sometimes (but inconsistently) endorsed by courts, and it has stronger support among scholars (as well as the Model Penal Code). Yet in many instances federal courts’ decisions that specify mens rea requirements in serious federal offenses do not adhere to this view. A contrasting principle, threshold culpability, describes the dominant mode of mens rea interpretation in federal courts. On this view, mens rea is needed only to distinguish whether an actor is innocent or blameworthy; culpability merely defines eligibility for punishment and plays no necessary role in setting the magnitude of punishment. Under this principle, mens rea need not attach to every element of a crime, even elements that trigger substantial sentence increases. The article suggests reasons for the non-instrumental normative appeal of this latter view, and that appeal helps explain courts’ (and Congress’s) indecision among which of these two culpability principles should presumptively characterize federal criminal law. It also describes some costs of this indecision. Conflicting views about the role of culpability complicate courts’ choices among and use of statutory interpretation rules for mental state requirements in federal offenses, leading to inconsistent and unpredictable decision-making among courts and among offenses.
Darryl K. Brown, Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance, 75 Law & Contemporary Problems 109–131 (2012).