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Academy for Justice and Arizona State Law Journal

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A Virtual Conference on Mens Rea and Criminal Justice Reform

Accidents may be inevitable, but creating accidental criminals is not; rather, that’s a choice, and one that the criminal justice system should never make. But unfortunately, the criminal justice system has made this choice, repeatedly, by failing to account for a defendant’s mens rea—Latin for “guilty mind”—in imposing criminal liability and scaling punishment across a number of contexts. The consequences of these unjust policies—more people going to prison, and for longer periods—are intolerable at any time. But they’re particularly troubling in a time of mass incarceration, widespread racial injustice, and a prison system overwhelmed by a global pandemic. So now more than ever, there’s a pressing need to bring attention to and reform our nation’s state and federal mens rea policies. That’s the primary goal of Guilty Minds—A Virtual Conference on Mens Rea & Criminal Justice Reform.

What Happened?

On September 25 and 26, 2020, the Academy for Justice and the Arizona State Law Journal brought together some of the nation’s leading criminal law professors and practitioners for an extended conversation about mens rea policy and its role within the broader criminal justice reform movement. The conversations revolved around accessible papers, which have been published in a special issue of the Arizona State Law Journal. Topics covered included: strict liability, felony murder, complicity, intoxication, mental illness, willful blindness, ignorance of wrongdoing, and the politics of mens rea reform. For balance and diversity of perspective, every conference panel included a mix of criminal law scholars and practitioners.


What’s Different About This Conference?

Typically, legal conferences are narrow in focus, heavy on presentations, and light on public access. This one aimed to be different in three main ways:

Student and Professor
Diversity of participants: Conference participants came from both the legal academy and the world of criminal justice practice. They were experts on many different areas of the criminal law and have experience working with many different aspects of the criminal justice system. These varied perspectives were brought to bear on each panel, which helped facilitate a more meaningful discussion.
Microphone
On-demand presentations: All panelists who wrote papers for the conference pre-recorded their presentations for viewing before the conference, maximizing the opportunities for group discussion within the six-hour timespan.
Universal Access: Anyone could participate! Well, sort of. The event was publicly accessible via Zoom Webinar, and there was also an email address to which audience questions could be sent. That email address was carefully monitored, and served as an important source of questions for the group discussion.

Papers

On Guilty Minds

Michael Serota
Visiting Assistant Professor Associate Deputy Director at the Academy for Justice
Sandra Day O’Connor College of Law at Arizona State University

The Depths of Malice

Vera Bergelson
Distinguished Professor of Law Robert E. Knowlton Scholar
Rutgers Law School
 

Decarceration and Default Mental Status

Benjamin Levin
Associate Professor of Law
University of Colorado Law School

Versari Crimes

Stephen P. Garvey
A. Robert Noll Professor of Law
Cornell Law School

Ignorance of Wrongdoing and Mens Rea

Douglas Husak
Distinguished Professor of Philosophy
Rutgers University

Why the Mind Matters in Criminal Law

Joshua Kleinfeld
Professor of Law and (by courtesy) Philosophy
Northwestern University

Two Sides of the Same Interpretive Coin: The Presumption of Mens Rea and the Historical Rule of Lenity

Shon Hopwood
Associate Professor of Law
Georgetown University Law Center

Conspiracy, Complicity, and the Scope of Contemplated Crime

Kimberly Kessler Ferzan
Earle Hepburn Professor of Law Co-Director, Institute of Law & Philosophy
University of Pennsylvania Carey Law School

Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice

Kenneth W. Simons
Chancellor’s Professor of Law and Philosophy
University of California, Irvine School of Law

Internal and External Challenges to Culpability

Stephen J. Morse
Ferdinand Wakeman Hubbell Professor of Law
Professor of Psychology and Law in Psychiatry
Associate Director, Center for Neuroscience and Society
University of Pennsylvania

Judicial Review of Strict Liability Local Ordinances

Guyora Binder
SUNY Distinguished Professor Hodgson Russ Faculty Scholar Vice Dean for Research and Faculty Development
University at Buffalo School of Law
 
Brenner Fissell
Associate Professor of Law
Maurice A. Deane School of Law at Hofstra University


Presentations

Introductory Lecture – Professor Michael Serota

Michael Serota, Visiting Assistant Professor at Arizona State University Sandra Day O’Connor College of Law, and Associate Deputy Director of the Academy for Justice, introduces the conference and discusses the topic of mens rea reform.

Welcome to Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform

Special Lecture – Professor Francis Shen

Francis Shen, Associate Professor of Law at the University of Minnesota, discusses Psychology, Neuroscience and the Enduring Mysteries of Mens Rea for the Guilty Minds Virtual Conference hosted by the Academy for Justice and Arizona State Law Journal.

Psychology, Neuroscience and the Enduring Mysteries of Mens Rea presentation by Professor Francis Shen

Guilty Minds Conference – Psychology, Neuroscience and the Enduring Mysteries of Mens Rea

Conference Video Presentations

Felony Murder and Police Violence, Guyora Binder, SUNY Distinguished Professor, Hodgson Russ Faculty Scholar and Vice Dean for Research and Faculty Development at University of Buffalo School of Law, presents on Felony Murder and Police Violence for the Guilty Minds Virtual Conference hosted by the Academy for Justice and Arizona State Law Journal.
Reckless Racism & Hate Crime, Ekow Yankah, Professor of Law at Benjamin N. Cardozo School of Law, presents Reckless Racism & Hate Crime, for the Guilty Minds Virtual Conference hosted by the Academy for Justice and Arizona State Law Journal.

Event Recording

Conference Videos – Day 1 – September 25, 2020

Welcome to Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform

Welcome to the Guilty Minds Conference

Michael Serota, Visiting Assistant Professor at Arizona State University Sandra Day O’Connor College of Law, and Associate Deputy Director of the Academy for Justice, introduces the conference and discusses the topic of mens rea reform.

Related Content:

Panel No. 1: “Strict Liability and Felony Murder – Principles, Policies, and Reform”

Moderator – Andrea Roth (Berkeley)
Panelist – Stephen Garvey (Cornell) – “Versari Crimes”
Panelist – Guyora Binder (Buffalo) – “Felony Murder and Police Violence”
Commentator – Jed Rakoff (SDNY)
Commentator – Laura Hankins (PDS-DC)

Related Content:

Panel No. 2: “Perspectives on Mens Rea Reform – Default Mental States and Legal Accountability”

Moderator – Rachel Barkow (NYU)
Panelist – Kimberly Ferzan (Penn) – “Conspiracy, Complicity, and the Scope of Contemplated Crime”
Panelist – Benjamin Levin (Colorado) – “Decarceration & Default Mental States”
Commentator – Doug Berman (Ohio State)
Commentator – Molly Gill (FAMM)

Related Content:

Panel No. 3: Interpreting Mens Rea – Courts, Statutes, and the Guilty Mind

Moderator – Tracey Meares (Yale)
Panelist – Shon Hopwood (Georgetown) – “Two Sides of the Same Interpretive Coin: The Presumption of Mens Rea and the Historical Rule of Lenity”
Panelist – Brenner Fissell (Hofstra) – “Judicial Review of Strict Liability Ordinances” (co-authored with Guyora Binder)
Commentator – Hon. Catherine Easterly (D.C. Court of Appeals)
Commentator – Erik Luna (ASU)

Related Content:

Felony Murder in Practice – A Conversation With Robert Garcia

Speaker– Robert Garcia (Jesuit Restorative Justice Initiative)
Interviewer– Matt Mizel (RAND)
Interviewer– Michael Serota (ASU)


Conference Videos – Day 2 – September 26, 2020

Panel No. 4: “Grounding Mens Rea – Reconstructivism, Racism, and Hate Crimes”

Moderator – Bennett Capers (Fordham)
Panelist – Joshua Kleinfeld (Northwestern) – “Why Mens Rea Matters to a Reconstructivist”
Panelist – Ekow Yankah (Cardozo) – “Reckless Racism & Hate Crime”
Commentator – Jenny Carroll (Alabama)
Commentator – Jonathan Wroblewski (US DOJ, Office of Policy & Legislation)

Related Content:

Panel No. 5: “Malice, Intoxication, and Mental Illness – Theory, Doctrine, and Reform”

Moderator – Michael Serota (ASU)
Panelist – Vera Bergelson (Rutgers) – “The Depths of Malice”
Panelist – Stephen J. Morse (Penn) – “Internal and External Challenges to Culpability”
Commentator – Kimberly Ferzan (Penn)
Commentator – Hon. Nancy Gertner (Harvard)

Related Content:

Panel No. 6: “Willful Blindness & Ignorance of Wrongdoing – Theory, Doctrine, and Reform” & Brief Concluding Remarks

Moderator – Gideon Yaffe (Yale)
Panelist – Doug Husak (Rutgers) – “Ignorance of Wrongdoing & Mens Rea”
Panelist – Ken Simons (Irvine) – “Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice”
Commentator – Vikrant Reddy (Koch)
Commentator – Shana O’Toole (Due Process Institute)
Conclusion of Conference – Michael Serota (ASU)

Related Content:


Project Organizers

profile picture for Michael Serota

Michael Serota

Visiting Assistant Professor
Associate Deputy Director, Academy for Justice
Arizona State University

Project Contributors

Rachel Barkow

Vice Dean and Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law

Vera Bergelson

Distinguished Professor of Law and Robert E. Knowlton Scholar
Rutgers Law School

Douglas Berman

Newton D. Baker-Baker & Hostetler Chair in Law
The Ohio State University Moritz College of Law

Guyora Binder

SUNY Distinguished Professor
Hodgson Russ Faculty Scholar
Vice Dean for Research and Faculty Development
University at Buffalo School of Law

Bennett Capers

Professor of Law
Director of Center on Race, Law & Justice
Fordham Law School

Jenny Carroll

Wiggins, Childs, Quinn & Pantazis Professor of Law
University of Alabama School of Law

Hon. Catharine Easterly

Associate Judge
D.C. Court of Appeals

Kimberly Kessler Ferzan

Earle Hepburn Professor of Law
Co-Director, Institute of Law & Philosophy
University of Pennsylvania Carey Law School

Brenner Fissell

Associate Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert Garcia

Assistant Executive Director
Jesuit Restorative Justice Initiative

Stephen Garvey

A. Robert Noll Professor of Law
Cornell Law School

Molly Gill

Vice President of Policy
FAMM

Hon. Nancy Gertner

Senior Lecturer on Law
Former United States District Judge
Harvard Law School

Laura Hankins

General Counsel
Public Defender Service, DC

Shon Hopwood

Associate Professor law Law
Georgetown Law

Douglas Husak

Distinguished Professor Rutgers School of Arts and Sciences

Joshua Kleinfeld

Professor of Law
Northwestern Pritzker School of Law

Benjamin Levin

Associate Professor or Law
University of Colorado Law School

Erik Luna

Amelia D. Lewis Professor of Constitutional and Criminal Law
Founder and Director, Academy for Justice
Sandra Day O’Connor College of Law at Arizona State University

Tracey Meares

Walton Hale Hamilton Professor of Law
Founding Director of The Justice Collaboratory
Yale Law School

Matthew Mizel

Associate Policy Researcher
RAND

Jamelia Morgan

Associate Professor of Law
Robert D. Glass Scholar
University of Connecticut School of Law

Stephen Morse

Ferdinand Wakeman Hubbell professor of Law
Professor of Psychology and Law in Psychiatry
Associate Director, Center for Neuroscience & Society
University of Pennsylvania Carey Law School

Shana O’Toole

Founder & President
Due Process Institute

Hon. Jed Rakoff

Senior United States District Judge
United States District Court for the Southern District of New York

Vikrant Reddy

Senior Fellow
Charles Koch Institute

Andrea Roth

Professor of Law
UC Berkeley School of Law

Francis Shen

Associate Professor of Law
McKnight Presidential Fellow
Florence Rogatz Visiting Professor of Law at Yale Law School
University of Minnesota Law School

Kenneth Simons

Chancellor’s Professor of Law
University of California, Irvine School of Law

Jonathan Wroblewski

US DOJ, Office of Policy & Legislation

Gideon Yaffe

Wesley Newcomb Hohfeld Professor of Jurisprudence
Yale Law School

Ekow Yankah

Professor of Law
Benjamin N. Cardozo School of Law