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May 20, 2017

"Proportional Mens Rea and the Future of Criminal Code Reform"

The title of this post is the title of this new paper authored by Michael Serota and available via SSRN.  Here is the abstract:

This Essay argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies.  I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course.

The Essay is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Essay.  Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark.  Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.

May 20, 2017 at 02:51 PM | Permalink

Comments

I am not reading this article.

Mens Rea. Latin. Language of the Catholic Church is not allowed by our constitution in the legal system. Latin endorses Catholicism.

Copied from the Catechism. Section 1857. Not allowed.

http://www.scborromeo.org/ccc/para/1857.htm

To its credit the Medieval Church believed God would judge intent upon reaching heaven, His being all knowing. That was their faith, they said. Not even the 13th Century Church believed man could read minds.

Mind reading is a supernatural power.

In the 13th Century, the sole punishment was death. So loopholes were needed to soften the law. That is no longer necessary.

Retribution and culpability are from the Bible. They are worthless to the tax payer. They are prohibited, except in the imaginary world of the lawyer.

Mens rea is more lawyer false doctrine, coddling the criminal, and harsh treatment of past and future victims.

Mens rea is anti-victim garbage. If someone reads the article, explain why anyone would bother doing so, outside the anti-victim, left wing, pro-criminal lawyer.

A hunter shoots another thinking him a deer. A hunter shoots another because the other's wife paid him $10,000. Same act. Same outcome. Vastly different treatment of the defendant. One goes home, the other gets the death penalty, all based on the mental state. This is ridiculous. How does the lawyer know the drunken hunter who killed a guy is not far more dangerous than the contract killer with discipline? The lawyer has loosed a menace on the public and executed a far less dangerous guy. The drunken hunter is now loosed by the lawyer to crash into a school bus.

The alternative to the mens rea is far more reliable, fairer, and safer to the public. Count unconvicted conduct and prior convicted conduct. And incapacitate for the status of the person, not for the crime. Naturally, the lawyer has banned strict liability crime, and compounded the mistake by banning status crime. Why would logic be banned by the lawyer, and coddling of the criminal be imposed on crime victims? Because the lawyer makes no money if the criminal is incapacitated for being a criminal from the earliest age possible, and crime is suppressed. Give the data to the jury if Booker must be followed, even though the jury does not know anything about this technical subject.

Lawyers should stop saying crime has dropped in rates. It has not. Saying it has destroys the credibility of any lawyer.

Posted by: David Behar | May 20, 2017 10:49:28 PM

If any law school professor uses any Latin in class, the Jewish and Protestant students should start banging Mao's Little Red Book on their chair writing tablets. If he does it again, he should be grabbed. A tall dunce cap should be placed on his head, and he should be bounced from the class. This is America, a secular nation.

Complaints may be filed with the Civil Rights Office of the Education Department, for the violation of Title VI of the Civil Rights Act of 1964. Imagine a professor seeking to impose the Sharia on our students. Seeking to impose the Catechism is no less offensive. Every single Latin utterance should be reported, investigated, and fined heavily. There is ongoing, massive violation of this law in our law schools. I support the right to speak Latin by the professor in church, at home, or anywhere else, but not in law school class, nor in any other legal setting.

https://www2.ed.gov/about/offices/list/ocr/docs/howto.html

Posted by: David Behar | May 21, 2017 9:44:10 AM

Very clever! What is a, "chair writing tablet?"
I am not a student, nor a teacher, nor an attorney. Call me an ant farmer.

Posted by: Stephen McLoughlin | May 22, 2017 10:43:32 AM

Isn't the relatively new legal category of "hate crimes" an example of proportional mens rea?

Posted by: AHajra | May 22, 2017 2:16:47 PM

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