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Tuesday, October 16, 2012

Do MPC canons of statutory construction matter? Not much, it seems.

    I will indulge in one self-promoting plug during my guest-blogging stint.  Below is the abstract for a paper just published in Duke Law Journal, which may be of interest to those who teach criminal law.  I reviewed how state appellate courts, in those states that adopted the MPC’s key provisions establishing presumptions against strict liability, handled statutory interpretation questions regarding mens rea requirements in the decades since they adopted MPC-based rules.  The bottom line—contrary to what I have suggested to my criminal law classes for years—is that the MPC culpability presumptions don’t do all that much.  They don’t simplify statutory interpretation on the questions they govern; appellate courts in MPC states find lots of ways to avoid or ignore mens rea presumptions and to interpret felonies to carry signfiicant strict liability elements.

     Two reform movements transformed American criminal law in the quarter century 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 had to 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 movement, which could be called the tough-on-crime movement, became the more significant. This movement led to 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 that 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.

Posted by Darryl Brown on October 16, 2012 at 06:58 AM | Permalink


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Very interesting article, Darryl. Thanks for posting it (and writing it, for that matter).

Posted by: Orin Kerr | Oct 16, 2012 4:28:55 PM

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