Record Detail

Before the recent presidential election, a bipartisan congressional effort was
made to pass a criminal justice reform bill. The bill faltered in part because of a proposed
default mens rea provision: statutes silent on mens rea, that were not explicitly identified as
strict liability by the legislature, would be taken to require for guilt proof of knowledge
with respect to each material element. This paper focusses on a prominent line of disagreement
about the default mens rea provision. Proponents argued that it would reduce the
number of unjust verdicts in corporate cases. They noted that there have been convictions
of corporations and corporate officers for public welfare offenses in instances in which
there was good reason to believe that the defendants lacked mens rea. They touted the
legislation, then, as a way of reducing the false positive rate. Opponents noted that the
provision would also reduce the rate of true positives in corporate prosecutions—convictions
of those possessing mens rea who could not be proven to—and opposed the
legislation on those grounds. Both sides, then, accepted that the relevant question was, in
part, numerical: under the provision, would the reductions in guilty verdicts of those
lacking mens rea outnumber and outweigh the increases in acquittals of those possessing
it? This paper critically examines this numerical approach for assessing and justifying the
default mens rea provision. The paper argues that there is a small domain under which it is
appropriate to reason in such numerical terms about a default mens rea provision, but that
that domain is so small as to make such arguments inappropriate when it comes to
sweeping legislation, such as that proposed. The paper further argues that in light of this
conclusion the default mens rea provision must be examined non-numerically, through
appeal to principled considerations about the necessary conditions for morally justified
infliction of punishment. When such arguments are freed from numerical considerations of
the kind that dominated the public discussion of the legislation, they decide the matter: the
default mens rea provision deserves bipartisan support.