Abstract: Two reform movements transformed American criminal law in the four decades that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other lose. The first movement was the wave of criminal code reform inspired by the American Law Institute’s Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of criminal offenses — a policy that rejected longstanding use of strict liability for significant offense elements. The second, which could be called the tough-on-crime movement, became the more significant. This was the transformation of American criminal-justice policy that expanded criminal offenses, enforcement and sentences, resulting in a national incarceration rate that quintupled and became by far the world’s highest. This Article identifies the twenty-four states that codified the MPC’s culpability rules and then recounts an extensive survey of the case law in those states to assess the reforms’ effect on judicial interpretation of mens rea requirements. It finds that legislative codifications of presumptions for mens rea have had surprisingly little effect on courts that define mens rea requirements when interpreting criminal statutes. It describes the recurrent rationales courts use to impose strict-liability elements in a wide range of crimes notwithstanding statutes that direct presumptions to the contrary. It then offers an explanation for this outcome — a substantial failure of the MPC-inspired revision of criminal codes — that emphasizes the continuing normative appeal of strict liability, the influence of instrumental rationales for punishment, and the limits of the judicial role in an era in which the legislative and executive branches are vastly expanding the reach and severity of criminal punishment.

Abstract: Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals. Further, recent research shows that deterrence and incapacitation-based distributions of punishment commonly conflict not only with principles of deontological desert but also with lay people's intuitions of justice. Research also suggests that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermines its ability to harness the more powerful forces of normative crime-control. This preference for a desert-based distribution of punishment is reflected in the American Law Institute's recent amendment of the Model Penal Code – its first amendment in 48 years – which set desert as the dominant distributive principle for sentencing. Is LWOP an appropriate sentence under that desert principle? The core principle for a desert distribution is this: greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness. Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case). To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases. In other words, a desert distributive principle would not demand LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case. This suggests LWOP ought to be a rare sentence, reserved only for the most blameworthy offenders.

Abstract: Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolved — especially misappropriations of intellectual property, information, ideas, identities, and virtual property.In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient’s tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his website?In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformation — and soon.

Abstract: My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.

Abstract: The law recognizes the frailty of human nature by mitigating murder to manslaughter when committed in the heat of passion or under extreme emotional disturbance. Evolutionary analysis entails the scientific study of the principles of human nature. Yet, the law's understanding of human nature is not congruent with evolutionary analysis. To be legally provoked under common law for manslaughter mitigation, a homicide must be in response to one of four kinds of provocation.' adultery, mutual combat, false arrest, and violent assault. And under adultery, only sexual infidelity counts. Sexual infidelity is not the only type of infidelity that can push a person into a homicidal rage, and while American jurisdictions have started moving away from the rigid categories, sexual infidelity remains a paradigmatic approach for mitigation. The Model Penal Code attempted to make the law more contextual, but it created a new series of adjudications that are expansive and also incongruent with evolutionary analysis. This Comment addresses the incongruence of both the common law and the Model Penal Code - which produce gender disparity in manslaughter doctrine - with evolutionary analysis. By exploring why sexual infidelity would provoke passion sufficient for homicidal rage, the Comment develops a mitigating standard for adultery that is consistent with evolutionary analysis and notions of gender equality. It uses evolutionary analysis to determine which universally recognizable forms of jealousy and related passion-laden mental states should also be sufficient provocation to deserve that same mitigation. The passionate response to sexual infidelity is just one adaptive solution to a threat against a male's reproductive fitness. However, in flagrante delicto does not take the passion-invoking circumstances of the female end of the same evolutionary spectrum into account. Our ancestral mothers faced a different set of evolutionary challenges against their reproductive fitness for which they have evolved different impassioned - and potentially deadly - responses. These passions should be incorporated into manslaughter doctrine. For the law to apply fairly and mitigate for the frailty of human nature, it must take the actual design of the mind seriously. This Comment argues for a better understanding of human nature in manslaughter mitigation that will result in more just adjudications for both men and women.

Abstract: While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly and involve extensive coordination among multiple actors. Many states follow the Model Penal Code approach and recognize the renunciation defense, without defining its precise contours or limits. Other states are still struggling with the issue, and have yet to accept or reject the renunciation doctrine. After surveying state and federal law across the United States, the authors unpack proposed policy arguments for and against the renunciation defense. The authors conclude that none of the pragmatic justifications advanced by the ALI in support of the doctrine survive close scrutiny. Moreover, renunciation is theoretically inconsistent with the social harm caused by an actor’s participation in a conspiracy, in contrast to the absence of harm present with other inchoate offenses such as incomplete attempts. In the authors’ view, renunciation is best understood historically as a special form of legislative grace designed to counteract some of the harsher aspects of conspiracy law. The authors argue that states grappling with this issue should decline to recognize a renunciation defense, and instead focus their attention on eliminating some of the more notable inequities of conspiracy liability.

Abstract: Burglary has been evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to almost any crime that occurred indoors, and justify a significant additional penalty—even death. Burglary thus functions as a “location aggravator” for other crimes. Paradoxically, it may be the shadow of the common law crime that has obscured the breadth and significance of these changes. Burglary’s long tradition and pedigree gives an illusion of solidity to the charge, even when it no longer necessarily describes real criminal conduct beyond the target offense. This is the first survey of burglary in the United States since the Model Penal Code. It begins with a summary of burglary’s history from the common law definition through the first two centuries of the republic, then explains the Model Penal Code proposal for burglary—as well as the Model Code authors’ misgivings about the offense. The article then looks in detail at what happened in the states after the Model Penal Code—how the common law elements continued to erode until we ended up with today’s very thin crime. The article shows what this has meant: a serious crime with significant penalties that can be invoked in a range of situations, e.g., shoplifting, hold-up of a business, or murder by a houseguest. It concludes that burglary’s evolution has finally gone too far, and no longer necessarily describes a distinct offense. It is only the memory of the common law offense that keeps courts and lawmakers from recognizing how empty the crime has become.

Abstract: I INTRODUCTION The standard description of Anglo-American criminal law is that liability requires voluntary conduct and a culpable mental state--the union of act and intent. (1) Proof of both ensures that criminal punishment rests upon fault as well as wrongdoing, where wrongdoing refers to conduct that violates a prohibition, and fault is a determination based on intention or conscious awareness of the wrongful conduct, its consequences, and the significant circumstances in which it occurs. (2) Together wrongdoing and fault make an offender blameworthy (or culpable), which justifies imposing criminal sanctions. An important corollary is that criminal punishment is set in some proportion to wrongdoing and fault; culpability limits punishment. Mens rea requirements are the traditional means to determine culpability. That is, we determine fault by proof of an actor's mental state--intention, knowledge, recklessness, or perhaps negligence--with regard to various elements of the offense. Thus, the difference in causing a death intentionally and causing a death non-negligently (holding aside defenses) is the difference between liability for murder and no liability. Similarly, after one's hand makes contact with another's nose, liability for assault may depend on whether one was aware that another was within range of voluntary arm movements. And liability for theft depends in part on one's awareness that the property belonged to another. The story is more complicated, of course. There is a longstanding rationale for a broad range of "public welfare" offenses that require no fault--no proof of mens rea. Liability is justified largely on instrumental grounds--prevention of harm--and on proof (generally, in some sense) of a causal relationship between the actor and the risk that the offense targets. (3) As a category, those offenses generally have low (misdemeanor-level) punishments, and they are not my focus here. (4) The more challenging and significant complications regarding the fault requirements arise in serious offenses carrying significant prison terms. As a practical matter, these difficulties concern which elements of felony offenses carry mens rea requirements. For this question, the principle that "criminal liability requires proof of a culpable mental state" is insufficient. Strict liability as to some elements of offenses is widespread and often noncontroversial. Yet courts lack reliable interpretive tools for distinguishing which statutory elements will carry strict liability, surely in part because legislatures do not seem to follow consistent principles when designating strict liability elements and employ drafting conventions that make their intentions on such choices unclear. (5) Courts' interpretive choices regarding mens rea present a choice of two accounts of culpability, which are also bases for sentencing. These choices address ideas of what degree of culpability is required to justify criminal punishment, which is the same choice underlying legislatures' design of offense definitions. One account is proportionate culpability. This principle states that punishment must be in accord with or in proportion to culpability, and it is sometimes endorsed by courts (6) and overwhelmingly by scholars. (7) Mens rea must attach to every normatively significant element of the offense as a means to measure culpability; one who intends a bad result demonstrates more fault than one who intends conduct but not the result it causes. The Model Penal Code (MPC), the American Law Institute's mid-century recommendation of how American criminal law should be designed, strongly endorsed proportionate culpability. (8) This idea, however, characterizes neither American criminal law nor courts' interpretation of mens rea requirements. The contrasting principle one might call threshold culpability and seems to be the dominant view of American courts and legislatures. On this view, proof of mens rea is needed only to determine whether one is innocent or blameworthy for some offense. …

Abstract: Joe is a 17-year old-male who has been charged with the attempted murder of three police officers. Because of the seriousness of his offense, Joe has been transferred to adult court. Joe has no prior arrest history or any legal involvement in the juvenile or adult legal system. Although Joe was described as “outgoing and friendly” during his elementary school years, during his high school years he was noted to become extremely withdrawn and aloof. He stopped socializing with others and by the time he was age 16, he was failing all of his classes.

Abstract: It has been suggested that the American Law Institute’s Model Penal Code might serve as a model for a European Model Penal Code, or at least for the project of assembling general principles of European criminal law. This paper presents a critical analysis of the Model Penal Code project, paying particular attention to the form of the project, rather than its substance, on the assumption that the idea, and the drafting, of the Model Penal Code would be of greater interest to a European criminal law project than its content, a systematic and comprehensive general part and a representative special part of “American criminal law.”

Abstract: The law recognizes the frailty of human nature by mitigating murder to manslaughter when committed in the heat of passion or under extreme emotional disturbance. Evolutionary analysis entails the scientific study of the principles of human nature. Yet, the law's understanding of human nature is not congruent with evolutionary analysis. To be legally provoked under common law for manslaughter mitigation, a homicide must be in response to one of four kinds of provocation: adultery, mutual combat, false arrest, and violent assault. And under adultery, only sexual infidelity counts. Sexual infidelity is not the only type of infidelity that can push a person into a homicidal rage, and while American jurisdictions have started moving away from the rigid categories, sexual infidelity remains a paradigmatic approach for mitigation. The Model Penal Code attempted to make the law more contextual, but it created a new series of adjudications that are expansive and also incongruent with evolutionary analysis.This Comment addresses the incongruence of both the common law and the Model Penal Code-which produce gender disparity in manslaughter doctrine-with evolutionary analysis. By exploring why sexual infidelity would provoke passion sufficient for homicidal rage, the Comment develops a mitigating standard for adultery that is consistent with evolutionary analysis and notions of gender equality. It uses evolutionary analysis to determine which universally recognizable forms of jealousy and related passion-laden mental states should also be sufficient provocation to deserve that same mitigation.The passionate response to sexual infidelity is just one adaptive solution to a threat against a male's reproductive fitness. However, in flagrante delicto does not take the passion-invoking circumstances of the female end of the same evolutionary spectrum into account. Our ancestral mothers faced a different set of evolutionary challenges against their reproductive fitness for which they have evolved different impassioned-and potentially deadly-responses. These passions should be incorporated into manslaughter doctrine.For the law to apply fairly and mitigate for the frailty of human nature, it must take the actual design of the mind seriously. This Comment argues for a better understanding of human nature in manslaughter mitigation that will result in more just adjudications for both men and women.INTRODUCTION[T]he law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted . . . regards [manslaughter] as of a less heinous character . . . .1To deprive others of their life is one of the most effective means of increasing one's own fitness.2Humans kill because we love.3 It is an age-old story familiar to the human race, colloquially deemed a "crime of passion." Manslaughter mitigation recognizes this frailty of human nature that results in passion killing.4 The law takes what would otherwise be murder and reduces the crime itself to a lesser one, indicating the society's belief that this dynamic part of humanity cannot be as morally culpable.5 While there were a limited number of ways to be legally provoked under the traditional common law,6 the quintessential provocation has often been thought to be in flagrante delicto-the sudden, inperson discovery of one's romantic partner engaging in sexual activity with someone else.7 While many American jurisdictions have moved away from the rigidity of categorical approach,8 sexual infidelity remains a paradigmatic approach to manslaughter mitigation.9 Note this carnal requirement: the common law sanctions manslaughter for the sudden discovery of sexual infidelity, leaving impassioned homicide that results from non-sexual infidelity subject to the laws of murder and sympathies of jurors.In reality, though, sexual misconduct is not the only kind of iniquitous love affair that causes intense passions. …

Abstract: While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly and involve extensive coordination among multiple actors. Many states follow the Model Penal Code approach and recognize the renunciation defense, without defining its precise contours or limits. Other states are still struggling with the issue and have yet to accept or reject the renunciation doctrine. After surveying state and federal law across the United States, this Article unpacks proposed policy arguments both for and against the renunciation defense. This Article concludes that none of the ALI’s pragmatic justifications in support of the doctrine survive close scrutiny. Moreover, when considering the presence of social harm caused by an actor’s participation in a conspiracy—in contrast to the absence of harm with other inchoate offenses such as incomplete attempts—renunciation is theoretically inconsistent with the retributive aims of the criminal law. Renunciation should be best understood historically as a special form of legislative grace designed to counteract some of the harsher aspects of conspiracy law. This Article argues that states grappling with this issue should decline to recognize the renunciation defense and instead focus their attention on eliminating some of the more notable inequities of conspiracy liability. ∗ Professor, Boston College Law School. The author is grateful to Mark Sullivan, Legal Information Librarian in the Boston College Law Library, for his invaluable research support and direction, and to students Robert Hatfield, Jeff Christensen, and Kevin Smith for their capable editorial assistance. † Executive Director, Rappaport Center for Law and Public Service, Suffolk University Law School, and Adjunct Faculty, Boston College Law School. 1 Cassidy and Massing: The Model Penal Code’s Wrong Turn: Renunciation as a Defense to C Published by UF Law Scholarship Repository, 2012 354 FLORIDA LAW REVIEW [Vol. 64 INTRODUCTION 354 I. A BRIEF LOOK AT THE COMMON LAW OF CONSPIRACY AND ITS EVOLUTION IN THE UNITED STATES 356 II. THE MODEL PENAL CODE AND RENUNCIATION 359 III. RENUNCIATION UNDER STATE LAW 366 IV. RENUNCIATION AND WITHDRAWAL UNDER FEDERAL LAW ....... 373 V. POLICY CONSIDERATIONS 376 CONCLUSION 385

Abstract: Although mental state defenses frequently are raised in cases of infanticide, legal criteria for these defenses vary across jurisdictions. We reviewed outcomes of such cases in states using M'Naughten or model penal code (MPC) standards for insanity, and the factors considered by the courts in reaching these decisions. LexisNexis and Westlaw searches were conducted of case law, legal precedent, and law review articles related to infanticide. Google and other Internet search engines were used to identify unpublished cases. Despite the differing legal standards for insanity among states, the outcomes of infanticide cases do not appear to be dependent solely on which standard is used. The presence of psychosis was important in the successful mental state defenses. This case series suggests that states that use the stricter M'Naughten standard have not been less likely than states with an MPC standard to adjudicate women who have committed infanticide as not guilty by reason of insanity.

Abstract: This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of offenses is widespread, and sometimes non-controversial. Yet courts lack reliable interpretive practices to determine which elements do not carry mens rea requirements in accord both with congressional intent and criminal law’s normative commitments to culpability as a prerequisite for punishment In a survey of recent federal court decisions, I identify two competing understandings of the culpability required to justify criminal punishment, especially with regard to distinctions in punishment between less and more serious wrongdoing.One approach in the case law, endorsed recently by the U.S. Supreme Court, follows a principle of proportionate culpability. This principle holds that punishment should be in proportion to an actor’s fault, and it leads to interpretative decisions by courts that attach mens rea requirements to every normatively significant element of an offense. This principle is sometimes (but inconsistently) endorsed by courts, and it has stronger support among scholars (as well as the Model Penal Code). Yet in many instances federal courts’ decisions that specify mens rea requirements in serious federal offenses do not adhere to this view. A contrasting principle, threshold culpability, describes the dominant mode of mens rea interpretation in federal courts. On this view, mens rea is needed only to distinguish whether an actor is innocent or blameworthy; culpability merely defines eligibility for punishment and plays no necessary role in setting the magnitude of punishment. Under this principle, mens rea need not attach to every element of a crime, even elements that trigger substantial sentence increases. The article suggests reasons for the non-instrumental normative appeal of this latter view, and that appeal helps explain courts’ (and Congress’s) indecision among which of these two culpability principles should presumptively characterize federal criminal law. It also describes some costs of this indecision. Conflicting views about the role of culpability complicate courts’ choices among and use of statutory interpretation rules for mental state requirements in federal offenses, leading to inconsistent and unpredictable decision-making among courts and among offenses.

Abstract: The moral principles found in philosophy and embodied in law are often strikingly complex, seemingly peculiar, and yet resolutely persistent. For instance, it was long held in Britain that a person could be tried for murder only if the victim died within a year and a day of the crime. And in the United States, if a robber gets into a shootout with a cop and the cop’s bullet hits a bystander, the robber can be charged with murdering the bystander. Naively, one might have assumed that murder could be defined simply as “causing another person to die.” In fact, the modern Model Penal Code requires pages of fine print to explain the details, just as it has over many decades and several comprehensive revisions. Our goal in this chapter is to explain three properties of moral principles: complexity, peculiarity, and persistence. Our argument rests on a simple model of the origins of moral principles. Abstract, general moral principles are constructed from the raw material of intuitive judgments of particular cases, as explained in the next section of the chapter. Those intuitive judgments depend, in turn, on many psychological capacities that are not specific to morality at all. These include attributions of causation (“John harmed Jane...”) and intent (“... on purpose ...”), which are pre-requisite to moral judgment (“... which was wrong”). Consequently, explicit moral principles reflect the complexity of our psychological processes of causal and intentional attribution, which we will explain in detail. That complexity can seem peculiar because our