Stephen F. Smith

Volume 69, Issue 6, 1609-1672

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment.

This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition.

To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congresseven knowledge of criminalitymust be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.

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