Does Mens Rea Matter?

2023 Wisconsin Law Review 287

Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute. We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g). Prior to Rehaif, federal courts viewed § 922(g)’s critical legal status element—whether a firearm or ammunition possessor meets the conditions for one of nine prohibited categories—as being subject to strict liability. After Rehaif, the government must now prove that the target of a § 922(g) prosecution was aware of their prohibited legal status to secure a conviction. Our study provides reason to believe that this new mens rea requirement significantly reduced the number of defendants charged with § 922(g) per month, the number of § 922(g) charges filed each month, the number of § 922(g) charges per defendant, and the likelihood that any individual charge of § 922(g) would be adjudicated guilty.

A4J Senior Research Scholar Michael Serota‘s paper was published in the 2023 Wisconsin Law Review 287.