« More great coverage of criminal justice players and issues on the 2020 ballot | Main | Digging carefully into what the FIRST STEP Act has, and has not, really achieved »

October 28, 2020

"How Criminal Law Lost Its Mind"

The title of this post is the great title of this new Boston Review commentary by Michael Serota focused on the need for mens rea refrom.  Here is an excerpt:

In our era of mass incarceration, most would say that we need fewer criminal convictions and less punishment.  But exactly what conduct are we prepared to decriminalize, and which sentences are we ready to shorten?  These are hard questions in part because low-level, non-violent offenders account for only a small percentage of the total number of incarcerated people; the vast majority of people in prison are there for serious offenses, including homicide, assault, and drug trafficking.  But it’s also true that our most serious offenses are being applied in overly broad ways that conflict with our moral intuitions about guilt.  To commit a crime, after all, is not just to do a bad thing.  Conduct becomes criminal only when it is accompanied by a blameworthy state of mind. Or at least that’s the idea behind the legal principle of mens rea (Latin for “guilty mind”).

All too often, this principle is ignored by our criminal justice system — both in who it convicts of crimes and in the length of sentences it hands out.  That should change. Good intentions may not be enough to shield someone who stumbles into harm’s way from civil liability, but they should keep individuals outside the reach of the criminal justice system. And even for those who act with a guilty mind, the criminal justice system should recognize important moral gradations between culpable mental states.  Reforming our criminal codes in these ways won’t rid our system of all its problems, but doing so is an important part of a just vision for change.

October 28, 2020 at 10:39 AM | Permalink


Not really sure where you get your data, but from what I'm told, in the Federal system especially female, every other person in there are there for "Relevant conduct" Non-violent drug offenders spending decades in prison for Ghost dope (someone saying how much drugs they had and dealt) Those people need to be released first. This Country should only arrest with evidence only, not words. I can't believe this is still on the books as "okay" to convict on words of other people trying to reduce their sentences....who is going to fix this?

Posted by: Randy Cowan | Oct 28, 2020 7:56:39 PM

I agree with the above statements about "ghost dope"! In one of my favorite Federal cases, the jury returned a Special Verdict form finding the defendant guilty, but also finding that the drug quantity was 0 grams! The Judge was not happy. He sent the jury back to deliberate further, advising them that if the defendant was guilty, there had to be a drug quantity above 0. The jury came back the second time with a "NOT GUILTY" verdict.

Posted by: James J. Gormley | Oct 28, 2020 10:02:12 PM

You should add to the list of non-violent offenders locked up in Federal prisons the enormous amount of child porn offenders as a direct result of the crazed punishment inflation of the last 20 years. That should be addressed in any sentence reform policy.

Posted by: restless94110 | Nov 6, 2020 1:07:38 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB