Should the Model Penal Code’s Mens Rea Provisions Be Amended

Do the Model Penal Code’s (MPC) provisions on mental states need revision? The question might seem preposterous. After all, many believe that these provisions count as the MPC’s greatest achievement: they clarify and simplify mental state categories, and replace an undifferentiated focus on the mens rea of an offense with a more careful focus on the mens rea for each element of an offense. The drafters of the MPC indeed have much to be proud of here. Prior to the MPC, the prevailing mental state categories included general intent and specific intent, malice aforethought, and other concepts that were just as confusing. And in many states, these confusing and infinitely manipulable old concepts are still with us. Consider one well-known recent case. In Commonwealth v. Woodward, a nanny was charged with murder for allegedly violently shaking a baby and slamming him against the floor, resulting in his death. The judge instructed the jury that, to decide whether she acted with “malice,” they should determine “whether, under the circumstances known to Defendant, a reasonable person would have known that her intentional act created a substantial risk of death to [the victim].” Notice that this sounds like a narrow criterion, insofar as it requires proof of the most culpable mens rea criteria—“intentionally” and “known.” Yet the most important part of the criterion (“a reasonable person would have known”) requires only ordinary negligence. And, taken literally, the criterion is quite easy to satisfy: it would permit a murder conviction for a beginning driver who “intentionally” switches lanes, “knowing” that he is on a busy highway, but negligently fails to check his blind spot and causes a fatal collision. Nevertheless, in this essay I will suggest that the MPC did lose something in departing from more traditional mens rea criteria. Furthermore, the MPC approach creates new problems, some rather significant. So a fine-tuning of the MPC approach, at least, would be worthwhile.