Gregory Antill (Columbia Law School) has posted Rethinking the Role of Intentional Wrongdoing in Criminal Law (113 California Law Review _____ (2025)) on SSRN. Here is the abstract:
It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm is and ought to be subject to greater criminal liability than actions which foreseeably result in risk of those same harms. This Article questions the soundness of that assumption. It argue that for many criminal offenses – particularly criminal homicide – a reluctant agent who purposefully causes harm to another person (even when that harm is deliberate and premeditated) will often nonetheless exhibit more concern for the well-being of their victims than a callous agent who acts recklessly, or even negligently, while indifferent to the harm they cause. The Article uses this critical re-thinking of the standard mens rea hierarchy to show how we might amend current homicide doctrine to allow more proportionate criminal liability for non-intentional police homicides like Derek Chauvin’s killings of George Floyd, relative to reluctant purposeful defendants.
As part of that argument, the Article identifies and articulates an especially important set of ‘avoidance-commitments,’ which are manifested in the case of reluctant purposeful agents but absent in the case of callous agents, and which speak in favor of diminished liability for many purposeful agents relative to their reckless or negligent counterparts. In so arguing, the Article highlights how the criminal law’s current mens rea hierarchy, while seemingly ideologically neutral, in fact evinces a commitment on the part of the state toward punishing more severely those who commit purposeful crimes of desperation, while excusing those in positions of wealth or power who commit non-intentional crimes of convenience, while unwilling or unmotivated to seek out or take easily available options to avoid wronging their victims. Failure to be clear-eyed about such commitments creates a further barrier to recognizing the true moral magnitude of failures by police officers to recognize the humanity of those they police, and to designing a legal regime that effectively assigns criminal liability accordingly.
Highly recommended. Download it while it's hot!
