Respect for the guilty mind is intuitive, reported the Boston Review. As Justice Oliver Wendell Holmes, Jr., famously put it, “even a dog distinguishes between being stumbled over and being kicked.” Of course, humans do too: a wide array of studies has shown that our intuitive moral sense of how to respond to harm or wrongdoing is keenly sensitive to what is happening in the minds of others. And this appears to be true from a very young age. Psychologists have found that even kindergarteners “make their culpability and punishment decisions proportionately” based on morally relevant differences in mens rea.
In theory, the criminal law is like this too. U.S. legal culture generally accepts that the criminal justice system should not punish people who make reasonable mistakes or for accidents, nor should it punish those who cannot think or act morally (say, due to mental illness). It is also accepted that the criminal justice system should excuse those who make understandably bad decisions in excruciating and extenuating circumstances. No doubt, individuals in these situations may do something harmful—perhaps terribly so. But in the absence of a guilty mind, the law should—and typically does—view them as morally innocent, and therefore beyond the reach of criminal liability.
The law has also embraced a similar notion in sentencing. As I’ve highlighted elsewhere, the principle of “proportional mens rea” says that, all else being equal, punishment should track the guiltiness of a defendant’s state of mind. This is the animating idea behind our centuries-old homicide laws, which go to great lengths to differentiate between mental states, and, ultimately, to lessen sentences for those whose choices are less blameworthy than the paradigmatic case of a cold-blooded, premeditated murder. An intentional killing committed in the heat of passion (e.g., an aggrieved parent who kills her child’s bully in a fit of rage) is often mitigated down to manslaughter, as is one committed recklessly (e.g., a fatal decision to run a red light, in conscious disregard of a slowly approaching pedestrian). And where that killing is intentional but motivated by imperfect self-defense (e.g., someone who unreasonably mistakes a friend for a foe), or is just plain negligent (e.g., a thoughtless college student mishandling a gun accidentally fires it), the charge may be dropped even further to negligent homicide—or a lesser form of manslaughter, with labels varying from jurisdiction to jurisdiction.
All of these individuals have perpetrated the same wrongful act: killing a human being. But because of the important distinctions in mental state accompanying that act, criminal law provides them with increasingly lenient sentences.
This is how the criminal justice system is supposed to operate: limiting convictions to guilty minds and apportioning punishment in accordance with their guiltiness. The U.S. Supreme Court has recognized this basic idea to be (1) “universal and persistent in mature systems of law,” (2) as fundamental as our belief in an individual’s ability to “choose between good and evil,” and (3) “essential if we are to retain ‘the relation between criminal liability and moral culpability’ on which criminal justice depends.” Similar statements are frequently made by courts and scholars around the country, who are drawn to the intuitively appealing vision of—as Douglas Husak puts it—“a world in which impositions of criminal liability and punishment correspond to our considered judgments of blame and desert.”
If legal rhetoric were an accurate gauge of legislative reality, our criminal justice system’s treatment of mens rea would be pristine. But this is simply not the case. Criminal statutes, the primary source of liability and punishment in this country, often fail to live up to this commitment to moral guilt. In a surprisingly large number of situations, our nation’s lawmakers have disregarded traditional mens rea principles in favor of a tough-on-crime approach that sacrifices our intuitive sense of fairness in pursuit of an amorphous idea of “public safety.”
The drug arena is a case in point, in part because it is where some of the most aggressive tough-on-crime campaigns have been waged. U.S. drug policies often focus on behavior to the near total exclusion of mental state considerations. Many drug possession statutes apply a “strict liability” approach, in which—as Markus Dubber explains—“you can be convicted . . . if you don’t know that you are ‘possessing’ a drug of any kind, what drug you are ‘possessing,’ how much of it you’ve got, or—in some states—even that you are possessing anything at all, drug or no drug.”
Just as strict is the ruthlessly quantitative approach to drug sentencing employed in most jurisdictions that bases punishment on what Doug Berman calls “fairly arbitrary questions about how the drugs involved in an offense are to be classified or quantified instead of on a defendant’s actual culpability.” What this means, in practice, is that small-time dealers can be punished just as severely as big-time traffickers (think decades, not years) based upon their tangential connection to massive quantities of narcotics they had no idea existed and had no intent to sell.
Similarly strict tendencies are reflected in the law of violence. Some jurisdictions have assault and homicide statutes that convict those who, absent clear moral fault, accidentally injure or kill another person in the course of daily life. (This situation is often the result of applying civil negligence standards in the criminal context.) And nearly all jurisdictions have homicide laws that treat unwitting fatal accidents that occur in the course of perpetrating a felony crime as murder. The consequences of these “felony murder” laws are often striking.
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