Guilty Minds

Michael Serota

This Article develops a new vision of mens rea by returning to a bygone era’s conception of the guilty mind. The common law understanding of mens rea is broad and moralistic; it encompasses all mental characteristics bearing on an actor’s blameworthiness. Undertheorized and oft neglected, this “Guilty Minds” approach has been replaced with the Model Penal Code’s reconceptualization of mens rea as the purpose, knowledge, recklessness, or negligence applicable to every element of a criminal offense. Modern criminal law’s embrace of this narrower and more legalistic “PKRN” approach to mens rea has brought with it many well-known benefits. But there are also overlooked costs of divorcing mens rea doctrine from its moral foundations. This Article demonstrates how the Guilty Minds approach, once clarified and refined, can address these costs while revealing a promising new pathway for criminal law reform.

Synthesizing a wide body of experimental research, the Article transforms the historically vague Guilty Minds approach into a multi- dimensional model of culpability rooted in the community’s sense of justice. Drawing on contemporary criminal theory, the Article then makes the moral philosophical case for viewing this reconceptualization of mens rea as a critical constraint on criminal liability. After identifying structural flaws in contemporary mens rea policies that violate this constraint, the Article proposes a novel statutory solution: an insufficient blameworthiness defense, which empowers factfinders to dismiss charges based upon a structured assessment of an accused’s mitigating mental states. The Article argues that the proposed defense would be accessible to juries, administrable by courts, and harmonious with the PKRN approach—thereby providing all U.S. jurisdictions with an effective way to bolster mens rea protections in their criminal codes.