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

This conference submission is a draft excerpt from a larger project with the tentative title “Only Guilty Minds.” That project makes the case for viewing mens rea reform, broadly construed, as a meaningful component of a modern criminal justice reform agenda. In so doing, I will argue that the primary beneficiaries of mens rea reform—or at least the version of mens rea reform developed in my paper—are no different than those who disparately suffer from every other problem in the criminal justice system: the poor, the underserved, and people of color. For purposes of this conference, however, I’m only submitting one component of this project, namely, its theoretical foundation. That foundation, which constitutes Part I of this project, provides an introduction to mens rea, and is organized around three main questions: (1) What is mens rea?; (2) Why do we care about mens rea?; and (3) Why should we care about mens rea?

There are two goals motivating this submission. The first is to offer what I hope is a clear and accessible framing of a topic that has been a source of confusion among judges, lawyers, and legislators. This is not the only framing of mens rea possible, but it is the framing that I believe is most intuitive and which may best serve the goals of the conference. The second is for the purpose of receiving feedback. Having worked on mens rea policy as a legislative drafter for over six years, this project is my preliminary attempt to express what I hope is a broadly appealing vision of the law of guilty minds that is rooted in our everyday judgments of blame and moral responsibility. Through this effort, I’m seeking to develop an understanding of mens rea that synthesizes, refines, and builds upon many of the most important scholarly contributions on the topic in a way that is persuasive not only to criminal law scholars but also to the policymakers on whom criminal justice reform depends, as well as to their constituents who stand to benefit from it.