Guilty Minds

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.

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.

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

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:

• Only Guilty Minds
• Video: Introductory Lecture on Mens Rea Reform

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:

• Versari Crimes
• Extended Video: Felony Murder and Police Violence

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:

• Conspiracy, Complicity, and the Scope of Contemplated Crime
• Decarceration and Default Mental States

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:

• Two Sides of the Same Interpretive Coin: The Presumption of Mens Rea and the Historical Rule of Lenity
• Judicial Review of Strict Liability Local Ordinances

Felony Murder in Practice – A Conversation With Robert Garcia

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

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:

• Why the Mind Matters in Criminal Law
• Extended Video: Reckless Racism & Hate Crime

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:

• The Depths of Malice
• Internal and External Challenges to Culpability

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:

• Ignorance of Wrongdoing and Mens Rea
• Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice