The Depths of Malice

Vera Bergelson

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

The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC has clarified and simplified mens rea categories by replacing numerous morphous terms with just four rigorously defined mental states and provided default rules for the interpretation of those mental states as applied to each material element of an offense. The MPC framework has been extremely influential: it has been adopted explicitly in more than a half of American jurisdictions, and it often guides judicial interpretation of mens rea in the remaining jurisdictions as well. However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the MPC has sacrificed some of the moral complexity of the traditional, common-law mens rea categories. Specifically, I argue that the common-law category of malice is doctrinally important and its abandonment affects the fairness and coherence of the entire body of criminal law.