CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, May 28, 2016

"Will Overreach Kill Mens Rea Reform?"

Kent Scheidegger has this post at Crime & Consequences. In part:

Yet neither the House bill nor the Senate bill includes recklessness in its defaultmens rea provision.  The Senate bill (S. 2298) requires "willfully" and the House bill (H.R. 4002) requires "knowing."  Why not include recklessness?  I have not found any explanation.

. . . 

Another troubling and potentially dangerous provision in the House bill is a requirement that the defendant know that his conduct is illegal. . . . 

The feds put some very bad gangsters away on weapons charges when witnesses to the other crimes they have committed are not available (e.g., deceased or afraid of becoming deceased).  The potentially crippling effect on such prosecutions of adding a very difficult to prove element of the defendant's knowledge of the law could have grave consequences for the future victims of gangsters who should have been put away.

Support for a recklessness standard seems sensible to me, but the objection to the mistake-of-law proposals seems to me to overstate the difficulties of proof--especially if something less than "knowledge" is required. Most folks in illegal possession of guns are probably at least consciously aware of a substantial and unjustifiable risk that their possession is illegal, and requiring proof of negligence regarding illegality would be even easier to satisfy and would still address many of the cases giving rise to the call for reform.


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