How Criminal Law Lost Its Mind

If legal rhetoric were an accurate gauge of legislative reality, our criminal justice system’s treatment of mens rea would be pristine. But this is simply not the case. Criminal statutes, the primary source of liability and punishment in this country, often fail to live up to this commitment to moral guilt. In a surprisingly large number of situations, our nation’s lawmakers have disregarded traditional mens rea principles in favor of a tough-on-crime approach that sacrifices our intuitive sense of fairness in pursuit of an amorphous idea of “public safety.”

The drug arena is a case in point, in part because it is where some of the most aggressive tough-on-crime campaigns have been waged. U.S. drug policies often focus on behavior to the near total exclusion of mental state considerations. Many drug possession statutes apply a “strict liability” approach, in which—as Markus Dubber explains—“you can be convicted . . . if you don’t know that you are ‘possessing’ a drug of any kind, what drug you are ‘possessing,’ how much of it you’ve got, or—in some states—even that you are possessing anything at all, drug or no drug.”

Just as strict is the ruthlessly quantitative approach to drug sentencing employed in most jurisdictions that bases punishment on what Doug Berman calls “fairly arbitrary questions about how the drugs involved in an offense are to be classified or quantified instead of on a defendant’s actual culpability.” What this means, in practice, is that small-time dealers can be punished just as severely as big-time traffickers (think decades, not years) based upon their tangential connection to massive quantities of narcotics they had no idea existed and had no intent to sell.