# Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46836 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** July 7, 2021 - **Citation:** R46836 ## Text Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses July 7, 2021 Congressional Research Service https://crsreports.congress.gov R46836 SUMMARY Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses R46836 July 7, 2021 Michael A. Foster The concept of mens rea, or a “guilty mind,” reflects the idea that a crime generally must consist Legislative Attorney of not only a proscribed act but also a “mental element” sufficient to warrant punishment. Three questions regularly arise with respect to the mental state required for a given federal crime: (1) whether the statute establishing the crime contains a mental-state requirement, or requirements, at all; (2) if the statute does contain mental-state requirements, which elements of the offense must meet which requirements; and (3) what the mental-state requirements mean. Under federal law, determining the mental state required for commission of a crime necessitates an examination of congressional intent. Congressional intent can be difficult to discern given that federal criminal statutory law (largely codified at Title 18) contains no uniform mens rea standards or generally applicable definitions of mental-state terms. Because federal statutory law lacks general rules for assessing and applying mens rea terms and requirements across criminal statutes, courts have applied canons of statutory interpretation and developed presumptions specific to mens rea when the state of mind requirement for a federal offense is unclear. For example, when a criminal statute is silent on the question of what mental state is required, courts will ordinarily apply a presumption in favor of scienter. The presumption counsels that typically some indication is required that Congress intended to dispense with mens rea as an element of a crime, and simply omitting a mens rea term from the statutory language will not be considered adequate evidence of such intent. Assuming the presumption of mens rea applies and calls for a mental-state requirement to be read into a statute that does not expressly contain one, the question becomes what kind of mental state is required. In this respect, the Supreme Court has said that the presumption requires “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’”—typically, at least knowledge of certain elements of the offense at issue. With respect to which elements of a crime must meet a given mens rea requirement, the Supreme Court has stated that the presumption in favor of scienter applies to “each of the statutory elements that criminalize otherwise innocent conduct,” though such a distributive approach emphasizing a distinction between elements that make conduct criminal and those that do not can sometimes be difficult to apply in practice. Finally, regarding what specific mental-state requirements mean, federal law uses dozens of different mens rea terms that are frequently undefined. As such, reference to judicial precedent construing the provision at issue is often required to understand what mental state is required for a particular federal crime. Even so, federal mens rea requirements largely fall into loose categories that may include (1) an awareness of, or conscious purpose to bring about, conduct, a circumstance, or a result that is a required element of the offense (commonly represented by terms such as “intent,” “knowledge,” or “willfulness,” among others), or (2) an awareness and disregard of a substantial risk of harm or failure to perceive a substantial risk of harm when a reasonable person would have perceived it (commonly represented by the terms “recklessness” and “negligence,” respectively). A class of “public welfare” or “regulatory” offenses may actually require no mens rea for their commission at all. For this class of offenses, rather than applying the presumption in favor of scienter, statutory silence is treated as imposing “strict criminal liability” in the sense that one need not have at least knowledge of the facts that make one’s conduct illegal. Ultimately, several factors may be relevant to a court’s determination of whether a particular criminal statute imposes strict liability, including the nature of the statute and the particular activity or item regulated, the purpose of the criminal prohibition (i.e., punishment of wrongdoing versus protection of the public), the degree to which a defendant will be in a position to ascertain the relevant facts, and the severity of the penalties. In the past, Congress has considered legislation that would have established default mens rea requirements and application rules in the absence of clear standards in the offense text, and at least one bill (S. 739) has been introduced to this effect in the 117th Congress. Among other things, such legislation would impose standards of either knowledge or willfulness on many offense elements and would require that mens rea terms provided in the text should ordinarily apply to each offense element, with exceptions. Proponents of such efforts argue that strict-liability offenses and offenses with weak mental-state requirements fail to provide fair notice and represent part of a broader trend of federal over-criminalization. Opponents assert that applying blanket mens rea requirements to existing offenses could permit corporate wrongdoers to evade prosecution and produce unintended consequences. Ultimately, comprehensive mens rea legislation has not become law as of this writing. Congressional Research Service Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 3 Model Penal Code Approach ........................................................................................................... 5 Federal Mens Rea Requirements ..................................................................................................... 9 Federal Mens Rea Interpretive Approach ................................................................................. 11 Whether Mens Rea is Required.......................................................................................... 11 Application of Mens Rea to Specific Elements ................................................................ 15 Meaning of Mens Rea Standards in Federal Statutes .............................................................. 18 Intentionally, Knowingly, and Willfully............................................................................ 19 Recklessly and Negligently............................................................................................... 25 Other Mens Rea Standards ................................................................................................ 29 Selected Additional Mens Rea Issues in Federal Law............................................................. 30 Inchoate Crimes ................................................................................................................ 31 Corporate Liability ............................................................................................................ 33 Defenses ............................................................................................................................ 34 Federal Mens Rea Reform and Considerations for Congress ........................................................ 36 117th Congress ........................................................................................................................ 37 114th and 115th Congresses .................................................................................................... 38 Considerations for Congress ................................................................................................... 40 Tables Table 1. MPC Culpability Levels .................................................................................................... 7 Contacts Author Information........................................................................................................................ 42 Congressional Research Service Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Introduction To say that the legal principle actus non facit reum nisi mens sit rea1 is longstanding would be a considerable understatement. According to some legal scholars, the phrase, which means “the act is not culpable unless the mind is guilty,” has been in use for “at least approximately one thousand years.”2 Embodied in the phrase is the “universal and persistent” notion that “an injury can amount to a crime only when inflicted by intention.”3 In contemporary American law, the concept of mens rea, or a “guilty mind,” reflects this idea that a crime generally must consist of not only a “harmful act” but also a “mental element” or criminal intent sufficient to justify punishment.4 A world of complexity belies the seeming simplicity of the principle that a crime requires a guilty mind. To start, “mental element,” “guilty mind,” or “state of mind”5 are somewhat imprecise terms, as they may be used to refer to “matters that are not really mental at all” (for instance, crimes that only require a mens rea of negligence).6 Additionally, courts face persistent issues in interpreting mens rea standards like “knowledge,” “willfulness,” and “intent” and determining which elements in particular crimes must meet these standards.7 1 An alternative phrasing that is sometimes used is actus reus non facit reum nisi mens sit rea. Compare United States v. Bates, 96 F.3d 964, 967 (7th Cir. 1996), with Craig A. Stern, The Heart of Mens Rea and the Insanity of Psychopaths, 42 CAP. U. L. REV. 619, 627 n.58 (2014). 2 Matthew R. Ginther & Francis X. Shen, et al., Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt, 71 VAND. L. REV. 241, 245 n.10 (2018); see also Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV. 974, 974 (1932) (stating that the phrase has been used “[f]or hundreds of years . . . with unbroken cadence”). 3 Morissette v. United States, 342 U.S. 246, 250 (1952). 4 Id. at 250-51. This principle addresses broader notions of the purposes of criminal law and its effectiveness in deterring, reforming, and/or punishing, i.e., what sorts of behaviors are justly proscribed and can reasonably be expected to be curtailed by the threat of criminal penalties. See, e.g., id. (noting that the concept of a mental element in criminal law “is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a . . . substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution”); Stephen J. Morse, Inevitable Mens Rea, 27 HARV. J.L. & PUB. POL’Y 51, 61 (2003) (“If the criminal law operates by guiding the conscious actions of persons capable of understanding the rules and rationally applying them, it would be unfair and thus unjustified to punish and to inflict pain intentionally on those who did not act intentionally or who were incapable of the minimum degree of rationality required for normatively acceptable cooperative interaction.”). 5 Various terms are used in judicial opinions and legal scholarship to describe the mental component of a crime, including mens rea, state of mind, mental state, and scienter. This report uses such terms interchangeably. As noted below, the Model Penal Code treats the concept of a crime’s mental component under the rubric of “culpability.” See infra notes 42-71 and accompanying text. 6 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 5.1 (3d ed. 2017); see Criminal Negligence, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining criminal negligence as, among other things, an “objectively assessed mental state of an actor who should know” that there is a certain degree of risk in a prohibited action). However, criminal negligence is not common in the context of federal criminal law. See 1A KEVIN F. O’MALLEY, JAY E. GRENIG, & WILLIAM C. LEE, FEDERAL JURY PRACTICE & INSTRUCTIONS § 17:01 (6th ed. 2006) (indicating that concepts of recklessness, negligence, and strict liability have “little relevance in federal criminal law”); Elonis v. United States, 135 S. Ct. 2001, 2011 (2015) (“[W]e have long been reluctant to infer that a negligence standard was intended in criminal statutes.” (citation and internal quotation marks omitted)); but see, e.g., 33 U.S.C. § 1319(c) (establishing criminal penalties for negligent violations of certain pollutant discharge limitations, among other things). 7 E.g., Robert Batey, Judicial Exploitation of Mens Rea Confusion, at Common Law and Under the Model Penal Code, 18 GA. ST. L. REV. 341, 341-42 (2001) (referring to “infinite shades of meaning” among common-law mens rea standards and “important fundamental mens rea questions that still have no clear answers”); United States v. Bailey, 444 U.S. 394, 403 (1980) (“Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime.”); United States v. Marshall, 753 F.3d 341, 345 (1st Cir. 2014) (“The statutory term Congressional Research Service 1 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Moreover, though courts have pronounced in sweeping language the paramount importance of imposing criminal punishment only on those who are mentally culpable, a class of so-called “regulatory” or “public welfare” offenses are said to be “strict liability” crimes in that they require no mens rea for their commission at all.8 One resource that has played a significant role in the development and clarification of certain mens rea principles is the Model Penal Code (MPC).9 The MPC is a major work of legal scholarship first produced in 1962 that was intended to establish a comprehensive model statute that American jurisdictions could use to revise their criminal codes.10 Many states have, in whole or part, supplanted “confused, vague, and inconsistent” approaches to mental states drawn from the common law with the more systematic approach to state-of-mind requirements found in the MPC’s “culpability” provisions.11 Federal courts also have looked to MPC principles for guidance in interpreting federal law,12 notwithstanding the fact that federal criminal statutory law (largely codified at Title 18) contains no uniform mens rea standards or generally applicable definitions of mental-state terms.13 Given that federal statutory law lacks such consistent rules for assessing and applying mens rea terms and requirements across criminal statutes, courts have had to use canons of statutory interpretation14 and adopt certain mens rea-specific presumptions when the state of mind required for a particular federal offense is unclear.15 In light of the ad hoc nature of state-of-mind requirements under federal law, Congress has shown interest for decades in establishing more systematized mens rea standards and application rules.16 Because the issue is one of perennial interest to Congress, this report provides an overview of mens rea requirements for federal crimes.17 The report first sketches the common-law background ‘willfully’ is a chameleon, what the Supreme Court has called ‘a word of many meanings whose construction is often dependent on the context in which it appears.’” (citation omitted)). 8 See infra § “Whether Mens Rea is Required”; Morissette, 342 U.S. at 250, 252-255 (stating that the requirement of a “mental element” for commission of a crime is “no provincial or transient notion” but recognizing offenses “of another character” which require no such element and “consist only of forbidden acts or omissions”). 9 See David M. Treiman, Recklessness and the Model Penal Code, 9 AM. J. CRIM. L. 281, 284-85 (1981) (describing MPC as “model for” reforming common-law mens rea principles reflected in statutes of the time). 10 See id. 11 Id. (indicating that as of 1981, nearly two-thirds of states had revised their criminal codes based on the MPC, and many revisions included the MPC’s section on culpability); see Paul H. Robinson & Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 NEW CRIM. L. REV. 319, 326 (2007) (identifying “thirty-four [state] enactments [that] were influenced in some part by the Model Penal Code”). 12 E.g., Bailey, 444 U.S. at 406 (looking to “[p]rinciples derived from common law as well as precepts suggested by the” MPC to discern level of culpability); Voisine v. United States, 136 S. Ct. 2272, 2278 (2016) (citing MPC definition of “reckless” as “the dominant formulation”). 13 Geraldine Szott Moohr, Playing with the Rules: An Effort to Strengthen the Mens Rea Standards of Federal Criminal Laws, 7 J. L. ECON. & POL’Y 685, 692 (2011) (“The United States Code does not define mens rea terms or provide interpretive guidelines. Instead, each federal criminal law specifies its own mens rea element, making it possible for legislators to select from a wealth of common law terms.”). 14 For more information on statutory interpretation as a general matter, see CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon. 15 E.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994) (acknowledging a “presumption in favor of a scienter requirement” that “should apply to each of the statutory elements that criminalize otherwise innocent conduct”). 16 E.g., Mens Rea Reform Act of 2018, S. 3118, 115th Cong. (2018); Criminal Code Reform Act of 1977, S. 1437, 95th Cong. ch. 3 (as passed by Senate, Jan. 30, 1978). For further discussion, see infra notes Error! Bookmark not d efined.-Error! Bookmark not defined. and accompanying text. 17 This report limits its focus to federal mens rea requirements for purposes of criminal liability and thus largely does not address mental-state issues that may arise at sentencing or under the U.S. Sentencing Guidelines. See, e.g., United Congressional Research Service 2 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses of the concept of mens rea, summarizes the MPC’s innovations on the subject, and then explores mens rea standards and interpretive issues in federal statutes and caselaw.18 The report concludes with a brief discussion of recent proposals that would impact federal mens rea requirements and some of the arguments in favor of and in opposition to such proposals. Background A crime traditionally has been understood to consist of the concurrence of both a proscribed act (the actus reus) and a “guilty mind” (or mens rea).19 The concept of a mental element—mens rea, scienter, state of mind, criminal intent, or an equivalent term—being necessary for a prohibited act to be sufficiently blameworthy to justify criminal punishment has endured for hundreds of years, if not longer.20 In its early form at English common law, at least according to some scholars, mens rea embodied the notion of an intent to do an act with an “evil motive.”21 This “original notion . . . was gradually transformed by a centuries-long process that attempted to identify specific states of mind required for the commission of particular offenses.”22 The concept of a guilty mind as a necessary component of crime “took deep and early root in American soil,”23 but by the middle of the twentieth century, the common-law development of particular state-ofmind requirements on a crime-by-crime basis (and their inconsistent codification, in whole or in part, in state criminal codes) led to considerable disarray and confusion.24 States v. Prophet, __F.3d__, No. 18-3776, 2021 WL 800384, at *2 (3d Cir. Mar. 3, 2021) (noting circuit split regarding whether earlier version of Guideline enhancement required finding of mens rea). 18 Because, as already described, federal mens rea standards are statute-specific and non-uniform, it would be impossible to comprehensively address the state-of-mind requirements for federal crimes in a general way. Thus, this report seeks only to exemplify the variation in federal criminal law by exploring the requirements of a few representative statutes. 19 LAFAVE, supra note 6, § 5.1. 20 See Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REV. 635, 642 (1993) (tracing origins of a mental element in crime to “the earliest known legal systems” but noting that “systematic mens rea requirements” did not exist in Anglo-Saxon law “until at least the thirteenth century”). 21 Id. at 654-67. 22 Id. at 667. Motive is often now recognized to be analytically distinct from mens rea. United States v. Safehouse, 985 F.3d 225, 238 (3d Cir. 2021) (“[M]otive is distinct from mens rea. A defendant can be guilty even if he has the best of motives.”); Gardner, supra note 20, at 694 (“The modern practice . . . largely abandons the evil motive tradition at the offense definition level by defining the mens rea required for each crime descriptively in terms of particular states of mind.”). The relationship between the two can still sometimes creates conceptual difficulty in particular contexts, however. See, e.g., United States v. Ali, 870 F. Supp. 2d 10, 20 (D.D.C. 2012) (“Court decisions, treatises, and law reviews are rife with debates about the relationship between specific intent and motive, and the relevance (if any) of the latter in a criminal case.”). Motive may also be an express element of particular crimes, such as hate crimes, e.g., 18 U.S.C. § 249(a) (prohibiting certain acts “because of the actual or perceived race, color, religion, or national origin of any person,” among other things), and, depending on one’s definition, may also be considered a component of certain defenses to criminal liability. See, e.g., Rosemond v. United States, 572 U.S. 65, 89 (2014) (Alito, J., concurring in part and dissenting in part) (“Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent.”); Gardner, supra note 20, at 694-95 (explaining that the law “affords excuses in certain situations, even though offenders act with the specific state of mind required for the crime but either lack, or lack the capacity to form, the evil motive essential for moral blame”). 23 Morissette v. United States, 342 U.S. 246, 252 (1952). 24 Id. at 252 (“The unanimity with which [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element.”); Treiman, supra note 9, at 284 (“Before 1960, most states had criminal codes that were little more than statutory versions of the common law . . . . Each crime was defined in virtual isolation from others and Congressional Research Service 3 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses This confusion is perhaps best reflected in the development of the concepts of “general intent” and “specific intent” as a shorthand way to describe the mens rea classifications of common-law crimes. At a high level, many such offenses—for example, murder, battery, and larceny—can be characterized as either “specific intent” or “general intent” crimes.25 In one formulation, “specific intent” denotes an intent to “achieve some additional consequence” or “commit some further act” beyond the “commission of the proscribed act.”26 For example, larceny likely would be considered a specific intent crime, as it often requires obtaining control over the property of another (the proscribed act) with the intent “to deprive the owner of the stolen property permanently.”27 By contrast, in the words of one federal appellate court, “a general intent crime requires only that the act was volitional (as opposed to accidental), and the defendant’s state of mind is not otherwise relevant.”28 For instance, battery at common law “consisted of the unlawful application of force to the person of another, including an offensive touching.”29 This crime would be considered a general intent crime, because it does not “require any specific intent either to injure or to touch offensively, but rather only a more general intent to commit the unlawful act” of applying force.30 Though the examples of larceny and battery might suggest relative clarity, delineation between “specific intent” and “general intent” crimes in fact can be problematic in several respects. For one thing, disagreement has abounded over time as to the proper meaning and usage of the two terms. As explained by the Supreme Court: Sometimes “general intent” is used in the same way as “criminal intent” to mean the general notion of mens rea, while “specific intent” is taken to mean the mental state required for a particular crime. Or, “general intent” may be used to encompass all forms of the mental state requirement, while “specific intent” is limited to the one mental state of intent. Another possibility is that “general intent” will be used to characterize an intent to do something on an undetermined occasion, and “specific intent” to denote an intent to do that thing at a particular time and place.31 Additionally, even classifying a crime as requiring either specific or general intent might not necessarily serve to elucidate the requisite mental state in a meaningful way. As one scholar has framed it, the concepts of general and specific intent do not themselves “describe culpable mental states” but merely “describe the relationship between an offense’s mental elements and its consequently, the meaning of terms would vary from crime to crime, with no attempt at consistent definition . . . .”). 25 United States v. Bailey, 444 U.S. 394, 403 (1980); Batey, supra note 7, at 343. As discussed in more detail infra, a third category of so-called regulatory or strict-liability offenses requires no culpable mental state at all. See Morissette, 342 U.S. at 252-53 (noting offenses “with very different antecedents and origins” that “depend on no mental element but consist only of forbidden acts or omissions”). 26 Eric A. Johnson, Understanding General and Specific Intent: Eight Things I Know for Sure, 13 OHIO ST. J. CRIM. L. 521, 525, 527 (2016); see also United States v. Lamott, 831 F.3d 1153, 1156 (9th Cir. 2016) (“In a crime requiring ‘specific intent,’ the government must prove that the defendant subjectively intended or desired the proscribed act or result.”). 27 Johnson, supra note 26, at 525. 28 Lamott, 831 F.3d at 1156. Defining general intent solely in terms of volition is of dubious usefulness, as any crime proscribing an affirmative act requires that the act be voluntary. See LAFAVE, supra note 6, § 6.1(c) (“At all events, it is clear that criminal liability requires that the activity in question be voluntary.”). 29 United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009). 30 Id. 31 United States v. Bailey, 444 U.S. 394, 403 (1980) (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW 201-02 (1972)). Congressional Research Service 4 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses physical elements.”32 A crime might be considered a “general intent” crime, in other words, because it does not require a specific mental state with respect to some consequence or result beyond the proscribed act (as in the battery example), but this does little to clarify the meaning of the mens rea requirement that the crime does have. Though the definition of “general intent” given above distinguishes only between volition and accident, the concept of intentionality has long been “slice[d] . . . more finely than accident versus non-accident.”33 In fact, a crime might incorporate the notion of a volitional act that brings about an unintended (read: accidental) result where the actor is highly careless in failing to appreciate the risk that a reasonable person would appreciate.34 This kind of crime does not fit comfortably in either the general or the specific intent bucket, nor does a crime that requires conscious disregard of a known risk.35 Exacerbating these definitional problems at common law was the proliferation of different mens rea terms that often provided little clarity as to what sort of mental state was actually required. “Terms such as willfully, corruptly, maliciously, feloniously, wrongfully, unlawfully, wantonly, intentionally, purposely, with criminal negligence, and culpably” were all used (among others), sometimes “to describe what was probably the same mental state,” sometimes to describe different mental states, and often without “any further definition.”36 The result was “seemingly infinite shades of meaning along [a] continuum upon which” the concepts of specific and general intent resided.37 It was in the context of this “variety, disparity, and confusion of [judicial] definitions of the requisite but elusive mental element”38 that the drafters of the MPC sought to establish “relatively clear definitions of mental requirements and relatively straightforward rules regarding how to read these requirements into criminal statutes”39 through what it termed general “culpability” rules.40 Because the MPC approach has had a significant impact on the development and understanding of the mental element of crime in general,41 this report provides a brief overview of the MPC’s culpability provisions. Model Penal Code Approach As noted above, the MPC was intended to be used as a model for criminal code reform across jurisdictions.42 It has proved to be extremely influential, with many states revising their codes in 32 Johnson, supra note 26, at 522-23. 33 Francis X. Shen & Morris B. Hoffman, et al., Sorting Guilty Minds, 86 N.Y.U. L. REV. 1306, 1310 (2011). 34 Id. at 1311. 35 See Johnson, supra note 26, at 532-36 (noting court disagreement and arguing that such crimes should be considered general intent crimes). 36 Treiman, supra note 9, at 284. 37 Batey, supra note 7, at 341. 38 Morissette v. United States, 342 U.S. 246, 252 (1952). 39 Batey, supra note 7, at 401; see also Ronald L. Gainer, The Culpability Provisions of the Model Penal Code, 19 RUTGERS L.J. 575, 579 (1988) (explaining that the MPC drafters “were required to resolve an approach to culpability” and “appeared to recognize that the fundamental need was clarity”). 40 MODEL PENAL CODE § 2.02 (1985). 41 See, e.g., Gainer, supra note 39, at 579 (describing MPC approach as “the now classic approach to culpability that few of us could imagine doing without”); Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 816 & n.7 (1980) (recognizing that around seventy percent of states undertaking code revisions adopted a mental-state system “essentially identical” to the MPC, and even those that did not were “significantly influenced” by it). 42 Robinson & Dubber, supra note 11, at 323; see also Sanford H. Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 CAL. L. REV. 943, 947-48 (1999). The MPC was reissued with Commentaries in 1980 and Congressional Research Service 5 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses light of the MPC’s principles and with some federal courts looking to those principles in construing federal law.43 The MPC’s culpability provisions are found in Article 2 of Part I, principally Section 2.02 and surrounding sections. One of these provisions’ core achievements is in “reduc[ing] nearly eighty miscellaneous culpability terms to five carefully defined levels.”44 These levels have become a prevalent, if not the predominant, prism through which courts view state-of-mind distinctions.45 The five levels of culpability are: (1) purpose; (2) knowledge; (3) recklessness; (4) negligence; and (5) strict liability.46 The MPC also clarifies the relationship between these different culpability levels and the offense elements to which they apply by dividing elements into three categories: (1) conduct, (2) attendant circumstances, and (3) results.47 The element categories are not defined, but an example of conduct and circumstance elements might involve a crime of having sexual intercourse with a minor, with intercourse being the conduct element and the age of the victim being the circumstance element.48 An example of a result element would be engaging in conduct that causes the death of another human being, with death being the proscribed result.49 Each culpability level in the MPC is defined in relation to each kind of objective offense element.50 The table below reflects the definitions of the MPC’s culpability levels for the three element categories: 1985. 43 See supra notes 11-12 and accompanying text; Paul H. Robinson, The Rise and Fall and Resurrection of American Criminal Codes, 53 LOUISVILLE L. REV. 173, 173 (2015). 44 Robinson, Brief History, supra note 41, at 815. 45 Id. at 816. 46 MODEL PENAL CODE §§ 2.02(2)(a)-(d), 2.05 (1985). 47 See generally id. § 2.02. The MPC defines the term “element of an offense” as such conduct, circumstance, or result of conduct as “is included in the description of the forbidden conduct in the definition of the offense,” establishes the requisite culpability, negates an excuse, justification, or a statute of limitations defense, or establishes jurisdiction or venue. Id. § 1.13(9). 48 Paul H. Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1 BUFF. CRIM. L. REV. 225, 235 (1997). 49 Id. 50 MODEL PENAL CODE § 2.02 (1985); e.g., id. § 2.02(2)(a) (“Purposely. A person acts purposely with respect to a material element when (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.”) (emphasis added). Congressional Research Service 6 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Table 1. MPC Culpability Levels Culpability Level Conduct Circumstance Result Purposely Conscious object to engage in conduct of that nature Aware of the existence of such circumstances or believes or hopes that they exist Conscious object to cause such a result51 Knowingly Aware that conduct is of that nature Aware of at least a high probability that such circumstances exist, unless actor actually believes they do not exist52 Aware that it is practically certain that conduct will cause such a result Recklessly None53 Consciously disregards a substantial and unjustifiable risk that the material element exists Consciously disregards a substantial and unjustifiable risk that the material element will result from conduct54 Negligently None Should be aware of a substantial and unjustifiable risk that the material element exists Should be aware of a substantial and unjustifiable risk that the material element will result from conduct55 Strict Liability None None None 51 A separate provision establishes that a “conditional” purpose satisfies the requirement of purpose “unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.” Id. § 2.02(6).This provision encompasses a situation where, for instance, an actor might be guilty of larceny (which requires a purpose to deprive the owner permanently of property) if the actor takes property intending to keep it unless the actor wins the lottery. In this situation, though the purpose is conditional, the condition does not “negative[] the harm or evil sought to be prevented,” but if the actor takes the property intending to keep it only if it turns out to actually be his, the harm or evil arguably would be negated. See LAFAVE, supra note 6, § 5.2(d). 52 This definition, which is actually a product of two separate provisions of Section 2.02, encompasses a formulation of the common-law “willful blindness” doctrine, under which “persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts” for mens rea purposes. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). 53 The MPC does not expressly define recklessness or negligence with respect to conduct, though commentators have different perspectives on the significance of the omission. Some commentators have posited that the drafters may have thought that recklessness or negligence as to conduct is not likely to arise, while others have suggested that the minimum culpability that applies with respect to conduct is knowledge. For further discussion of this issue, see Paul H. Robinson & Jane A. Grall, Elements Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 710-12 (1983). Congressional Research Service 7 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Source: American Law Institute, Model Penal Code, Section 2.02. As the table reflects, the MPC’s culpability levels may be viewed in a kind of descending order of intentionality. “Purposely” generally requires an element to be the actor’s “conscious object,” “knowingly” requires the actor’s awareness to a practical certainty or of a high probability (regardless of what the actor desires or has as their object), “recklessly” requires the actor’s awareness of a substantial risk, and “negligence” requires no awareness at all but merely that the actor objectively should have been aware of a substantial risk. For a limited category of strict liability offenses, the mental state of the actor is irrelevant.56 These definitions represent an effort to cut through the confusing morass of mens rea terms that had existed up to that point.57 The categorization of offense elements and the implicit recognition that the requisite mens rea might be different and should be analyzed separately with respect to each offense element also reflects a shift away from a prior notion that “each offense has one state of mind requirement,” i.e., that criminal offenses may be classified simply as “general intent” or “specific intent” rather than specifying what state of mind is actually required for which components of the crime.58 Beyond the definitions of mental-state requirements and the move towards mens rea element analysis with respect to those requirements, the MPC establishes certain general principles of interpretation that apply in assessing the mental state or states required for a particular offense.59 Most notably, the MPC creates a baseline culpability standard for any material element60 that does not explicitly contain one—Section 2.02(3) states that unless otherwise provided, “[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law,” the element is established if the person acts at least recklessly.61 Coupled with this default rule is a rule that if an offense prescribes the culpability level sufficient for commission of the offense without specifying which elements of the offense carry that specific culpability requirement, the requirement applies to all material elements “unless a contrary purpose plainly appears.”62 For example, for an offense of knowingly killing a “house pigeon,” the prosecution would have to prove that the actor knowingly killed and that he knew what he killed was a house pigeon, unless 54 For recklessness in general, “[t]he risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.” MODEL PENAL CODE § 2.02(2)(c) (1985). 55 For negligence in general, “[t]he risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.” Id. § 2.02(2)(d). 56 Id. § 2.02. 57 See, e.g., Robinson & Grall, supra note 53, at 692-93 (noting that Section 2.02 “clarifies mens rea analysis” by, among other things, “narrow[ing]” the “eighty or so culpability terms” that existed previously). 58 Id. at 688. 59 E.g., MODEL PENAL CODE §§ 2.02-.06 (1985). 60 The MPC defines a “material element” as an element that does not relate to basic matters such as the statute of limitations, jurisdiction, venue, or other matters unconnected with “the harm or evil . . . sought to be prevented by the law defining the offense” or a justification or excuse for the proscribed conduct. Id. § 1.13(10). 61 Id. § 2.02(3). An explanatory note states that “[t]here is a rough correspondence between this provision and the common law requirement of ‘general intent.’” Id. § 2.02 explanatory note. The drafters, by omitting “negligence” and referencing general intent, seemed to indicate that crimes without an explicit mens rea requirement would maintain a common-law conception requiring at least some conscious awareness of relevant information, as distinct from mere accident. See supra notes 28-35 and accompanying text. 62 Id. § 2.02(4). Congressional Research Service 8 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses the text of the law in question “plainly” reflected that knowledge of the type of pigeon should not be required.63 The MPC additionally provides a number of rules on other points of law that may relate to mental-state requirements, such as the mens rea for inchoate crimes and certain defenses.64 This report addresses the MPC approach to these topics as a point of comparison with approaches under federal law in subsequent sections.65 In the decades since the MPC’s initial development, a substantial body of legal scholarship has offered critiques of, and potential refinements to, its culpability provisions.66 For instance, some commentators have taken issue with the “narrow distinction” between knowledge and recklessness with respect to a circumstance, which appears to turn on the murky question of what is highly probable versus a “substantial risk.”67 Others have noted the conflict and inconsistency that can arise in applying the rule that recklessness is the default when culpability is undefined over the rule that a culpability requirement attached to one material element normally attaches to all.68 Nonetheless, legal scholars appear largely to prefer the MPC’s approach to mental states over the disarray of the common law, asserting that the MPC’s culpability provisions are a “tremendous advance.”69 Many U.S. jurisdictions also have either adopted a number of the provisions or been influenced by them,70 and the Supreme Court has also looked to the MPC as a “source of guidance” in construing mens rea requirements in federal criminal statutes.71 What is notable about federal law, however, is that the MPC’s culpability provisions have not been codified or adopted on a broad scale. Instead, federal law largely embodies an ad hoc approach, which this report now examines in more detail. Federal Mens Rea Requirements In 1966, Congress created the National Commission on Reform of Federal Criminal Laws, which was given a broad mandate to “review and study . . . the statutory and case law of the United States . . . for the purpose of formulating and recommending to the Congress legislation which would improve the federal system of criminal justice.”72 In its working papers, the Commission 63 See Gardner, supra note 20, at 683. The house pigeon example discussed in the Gardner article stems from a 19th century English law addressed in the common-law case of Cotterill v. Penn. Id. at 679. 64 E.g., MODEL PENAL CODE § 2.04 (1985) (recognizing that ignorance or mistake is a defense if it negates the mental state required for a material element of the offense, with exceptions). 65 See infra § “Selected Additional Mens Rea Issues in Federal Law.” 66 E.g., Robinson & Grall, supra note 53, at 706-07 (“A major defect of the Model Penal Code is its failure to define adequately the three kinds of objective elements of an offense,” which is “essential for proper application of the defined culpability terms.”); Kenneth W. Simons, Should the Model Penal Code’s Mens Rea Provisions Be Amended?, 1 OHIO ST. J. CRIM. L. 179, 182-84 (2003) (diagnosing various problems). 67 Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. REV. 463, 474 (1992). 68 Robinson & Grall, supra note 53, at 715. 69 Simons, Model Penal Code’s Mens Rea Provisions, supra note 66, at 180. 70 See Shen & Hoffman, supra note 33, at 1318 (“Whether in actual legislation, common law, or simply norms accepted by lawyers and judges, the MPC has become ‘a standard part of the furniture of the criminal law.’” (citation omitted)); Batey, supra note 7, at 341 (indicating that as of 2001, “a substantial minority” of U.S. jurisdictions used the culpability structure reflected in Section 2.02 of the MPC). 71 United States v. U.S. Gypsum Co., 438 U.S. 422, 444 (1978). 72 Pub. L. No. 89-801. 80 Stat. 1516 (1966). Congressional Research Service 9 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses painted a rather unflattering picture of the state of mens rea requirements for federal crimes.73 The Commission noted that in contrast with the MPC, federal statutory law did not contain uniform and defined mental-state standards or rules of construction for the application of mens rea terms.74 Instead, according to the Commission, federal criminal statutes drew from common-law terminology in articulating mental-state requirements (if at all) on an ad hoc, statute-by-statute basis.75 The Commission identified, in Title 18 of the U.S. Code alone, 78 different mens rea terms.76 According to the Commission, this “staggering array” of mental-state terms did not “reflect accurately or consistently what are the mental elements of the various crimes,” nor was there any “discernible pattern or consistent rationale” for why particular terms were used in particular statutes.77 As such, the Commission acknowledged that courts were left to discern what Congress meant by including (or not including) one of the plethora of terms in any given context, which led to the same terms having different, and sometimes inconsistent, meanings depending on the statute.78 The Commission’s final report and recommendations, submitted to Congress and the President in 1971, proposed, among other things, to remedy the confusion over federal mens rea requirements by establishing generally applicable culpability rules and definitions similar to those found in the MPC.79 Legislation introduced based on the Commission’s report gained some traction but did not become law.80 More recent legislation aimed at altering federal mens rea standards has also been introduced but has not become law;81 as such, it remains that the U.S. Code has no general mens rea term definitions or interpretive rules, and dozens of different terms are used throughout the Code.82 Courts construe these terms “depending on the circumstances of the case and a reading of congressional intent,” with the result that identical mens rea terms “vary significantly” from statute to statute.83 In other words, ascertaining the mens rea required for a federal crime will often necessitate reference to judicial decisions construing the language used to define that particular offense. For the foregoing reasons, and given that at least one estimate puts the number of federal statutes carrying criminal penalties in the thousands,84 it would be unwieldy to examine comprehensively federal mens rea requirements in a systematic way. Instead, this section of the report (1) examines more broadly the interpretive approaches and presumptions that the Supreme Court and other federal courts have utilized to glean congressional intent in construing the mental-state requirements (if any) of federal criminal statutes; (2) provides a survey of mental-state requirements under federal law, loosely grouped along the lines of the MPC’s culpability 73 See 1 NAT’L COMM’N ON REFORM OF FED. CRIM. L., WORKING PAPERS 118-20 (1970). 74 Id. at 119. 75 Id. 76 Id. at 119-20. 77 Id. 78 Id. at 120-21. 79 See NAT’L COMM’N ON REFORM OF FED. CRIM. L., FINAL REPORT: PROPOSED NEW FEDERAL CRIMINAL CODE 27-29 (1971), https://www.ndcourts.gov/Media/Default/Legal%20Resources/legal-research/criminal-code/FinalReport.pdf. 80 E.g., Criminal Code Reform Act of 1977, S. 1437, 95th Cong. ch. 3 (as passed by Senate, Jan. 30, 1978). 81 E.g., Mens Rea Reform Act of 2018, S. 3118, 115th Cong. (2018). 82 Moohr, supra note 13, at 692. 83 Id. at 693. 84 John G. Malcolm, Morally Innocent, Legally Guilty: The Case for Mens Rea Reform, 18 FEDERALIST SOC’Y REV. 40, 41 (2017). This number does not include federal regulations that implicate criminal penalties, which may number in the thousands as well. Id. Congressional Research Service 10 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses categorizations; and (3) addresses certain additional aspects of federal criminal liability that implicate mens rea—specifically, inchoate offenses of attempt and conspiracy, corporate criminal liability, and defenses. Federal Mens Rea Interpretive Approach The Supreme Court has “long recognized that determining the mental state required for commission of a federal crime requires construction of the statute and inference of the intent of Congress.”85 Three questions routinely arise with respect to determining the requisite mental state for a particular federal crime: (1) whether the statute establishing the crime contains a mentalstate requirement or requirements; (2) if the statute contains mental-state requirements, which elements of the offense must meet which requirements; and (3) what the mental-state requirements mean.86 Because statutory language is not always clear, the federal courts have “developed a rich—if somewhat untidy—body of substantive background principles” and presumptions that guide the interpretive exercise.87 This section and the next address each of the three questions identified above and the relevant principles and presumptions that courts may apply to help answer those questions. Whether Mens Rea is Required Because the language of a statute is the starting point in statutory construction,88 a federal criminal statute containing a mens rea term such as “knowingly” clearly indicates that Congress meant to require some culpable mental state.89 When Congress omits an express mens rea requirement from the statutory text, however, the question arises as to whether that omission was intentional—in other words, whether Congress intended to dispense with any mental-state requirement and make the offense one of strict liability.90 In a series of cases, the Supreme Court has recognized, at least with respect to federal offenses based on traditional common-law crimes, a “presumption in favor of scienter,”91 meaning the Court will ordinarily presume a “degree of knowledge sufficient to make a person legally responsible for the consequences of his or her act or omission.”92 Put differently, the Court has held that ordinarily “some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a 85 Staples v. United States, 511 U.S. 600, 605 (1994) (citation, internal alteration, and internal quotation marks omitted). 86 E.g., id. at 605-08 (addressing existence of knowledge requirement in statute with no explicit mens rea and application of that requirement to different elements of offense). 87 Eric A. Johnson, Rethinking the Presumption of Mens Rea, 47 WAKE FOREST L. REV. 769, 770 (2012); see United States v. Figueroa, 165 F.3d 111, 119 (2d Cir. 1998) (Sotomayor, J.) (referencing “principles of construction underlying the criminal law” as “signposts to congressional intent”). 88 Staples, 511 U.S. at 605. 89 See Figueroa, 165 F.3d at 114 (“By using the word ‘knowingly,’ Congress chose to include some knowledge requirement for a conviction under [the statute].”). 90 “Strict-liability crime” is defined as one “for which the action alone is enough to warrant a conviction, with no need to prove a mental state; specif., a crime that does not require a mens rea element, such as traffic offenses and illegal sales of intoxicating liquor.” Strict-Liability Crime, BLACK’S LAW DICTIONARY (11th ed. 2019). Strict liability may apply to only one or some of the elements of an offense. E.g., Staples, 511 U.S. at 609 (addressing statute imposing strict liability as to unregistered nature of firearm but requiring knowledge of features of firearm making it subject to regulation). 91 Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019). 92 Id. (citation, internal alteration, and internal quotation marks omitted). Congressional Research Service 11 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses crime,”93 and mere omission of a mens rea term will not be considered a sufficient indication of such intent.94 The genesis of the presumption in favor of scienter can be traced to the Supreme Court’s 1952 decision in Morissette v. United States.95 In Morissette, the Court, in reading an intent requirement into a statute proscribing theft or conversion of federal property,96 spoke broadly of intent as “so inherent in the idea of” crimes codified from common law “that it required no statutory affirmation” and counseled “caution in assuming that Congress, without clear expression,” sought to eliminate any mental-state requirement.97 A later Supreme Court decision more clearly articulated a presumption that Congress “legislated against the background of . . . traditional legal concepts which render intent a critical factor”98 and further acknowledged such a presumption as consistent with a separate interpretive doctrine that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”99 Assuming the presumption of mens rea applies, and thus that a mental-state requirement should be read into a statute that does not explicitly contain one, the question becomes what kind of mental state is required. In this respect, the Supreme Court has held that “[t]he presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”100 Typically, the standard of knowledge is sufficient to meet this requirement.101 For instance, in Staples v. United States, the Court held that a statute making it unlawful to receive or possess certain kinds of unregistered firearms102 required knowledge of the features of the firearm that brought it within the scope of 93 Staples, 511 U.S. at 606. 94 Morissette v. United States, 342 U.S. 246, 263 (1952). 95 Id. 96 18 U.S.C. § 641. 97 Morissette, 342 U.S. at 252, 254 n.14. The Morissette Court rooted its decision in the principle that “where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Id. at 263. In accordance with this principle, the Court recognized that “[s]tealing, larceny, and its variants and equivalents” were well-known at common law, and judicial precedent “consistently retained the requirement of intent in larceny-type offenses.” Id. at 261. The Court in later decisions has appeared to recognize the applicability of the presumption even to statutes lacking direct common-law antecedents, however. E.g., Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (acknowledging that presumption is “traceable to the common law” but referring to the presumption as applicable generally to “criminal statutes”). 98 United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978). 99 Id. (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). 100 Carter v. United States, 530 U.S. 255, 269 (2000) (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)). As explained in more detail infra, this formulation also speaks to the question of which elements of a statutory offense bear a mens rea requirement. 101 See Carter, 530 U.S. at 268 (concluding that presumption in favor of scienter required proof “of general intent— that is, that the defendant possessed knowledge with respect to the actus reus of the crime,” but caveating that “some situations may call for implying a specific intent requirement into statutory text”); Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (concluding that statute proscribing transmission of threatening communication required purpose to threaten or knowledge of threatening nature of communication, but declining to address whether recklessness as to threat would be sufficient); John Shepard Wiley Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 VA. L. REV. 1021, 1112 (1999) (“[W]hen Congress has omitted all culpability language, . . . [t]he Court apparently has adopted the ‘knowledge’ standard as the default[.]”). 102 26 U.S.C. § 5861(d). Congressional Research Service 12 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses the statute.103 In reaching its conclusion, the Court noted that omitting a requirement that a “defendant know the facts that make his conduct illegal” would “impose criminal sanctions on a class of persons whose mental state . . . makes their actions entirely innocent.”104 The Court also has recognized a class of “‘public welfare’ or ‘regulatory’ offenses” to which the presumption will not apply (i.e., offenses where statutory silence is treated as imposing “a form of strict criminal liability” by “not requir[ing] the defendant to know the facts that make his conduct illegal.”)105 Typically, “such offenses involve statutes that regulate potentially harmful or injurious items” or activities, which put individuals on notice of the likelihood of regulation, 106 and impose relatively small penalties.107 One of the earliest examples of the Supreme Court’s recognition of a public welfare offense lacking a mens rea requirement is United States v. Balint, in which the Court addressed a statute prohibiting the sale of certain narcotics without a tax form issued by the federal government.108 The defendants argued that the government was required to prove that they knew the drugs they sold —derivatives of opium and coca leaves—were covered by the statute, but the Court concluded that the statute did not require proof of such knowledge.109 In so doing, the Court recognized a class of “regulatory measures” lacking a scienter requirement where the emphasis was “upon achievement of some social betterment rather than . . . punishment.”110 Acknowledging the question as one of congressional intent, the Court determined that the statute at issue fell into this class given its “manifest purpose . . . to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute,” noting that the opportunity of the seller to determine the nature of the drug being sold and the difficulty of proving knowledge “[d]oubtless . . . contributed to [Congress’s] conclusion” that such knowledge should not be required.111 Subsequent cases have appeared to back away from the somewhat broad conception of strictliability crimes presented in Balint, emphasizing the “limited circumstances” in which they will be recognized.112 Ultimately, several factors may be relevant to a court’s determination of whether a particular criminal statute imposes strict liability, including the nature of the statute and the particular activity or item regulated, the purpose of the criminal prohibition (i.e., punishment of wrongdoing versus protection of the public), the degree to which a defendant will be in a position to ascertain the relevant facts, and the severity of the penalties.113 103 511 U.S. 600, 619 (1994). 104 Id. at 605, 614-15. 105 Id. at 606-07. 106 Id. at 607. 107 Morissette v. United States, 342 U.S. 246, 254, 256 (1952) (recognizing criminal regulatory offenses “which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare” and noting that “penalties [for such offenses] commonly are relatively small, and conviction does no grave damage to an offender’s reputation”). 108 258 U.S. 250, 251 (1922). 109 Id. at 251, 253-54. 110 Id. at 252. 111 Id. at 254. 112 Staples v. United States, 511 U.S. 600, 607 (1994); see also United States v. U.S. Gypsum Co., 438 U.S. 422, 43738 (1978) (“[T]he limited circumstances in which Congress has created and this Court has recognized such offenses . . . attest to their generally disfavored status.”); Morissette, 342 U.S. at 251 (referencing “universal and persistent” notion that crime requires intention). 113 See, e.g., Staples, 511 U.S. at 607; Morissette, 342 U.S. at 255-56; United States v. Dotterweich, 320 U.S. 277, 28182 (1943); Balint, 258 U.S. at 254. Congressional Research Service 13 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses In short, though the line between a public welfare offense and a traditional offense to which the presumption of mens rea applies “can be difficult to draw,”114 a court will generally look to “the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements.”115 Strictly speaking, however, even socalled “strict liability” public welfare offenses are not viewed as completely dispensing with any state-of-mind requirement—rather, they require “only so much knowledge as is necessary to provide defendants with reasonable notification that their actions are subject to strict regulation.”116 Put differently, public welfare offenses “require at least that the defendant know that he is dealing with some dangerous or deleterious substance” but not necessarily “the facts that make his conduct fit the definition of the offense.”117 The absence of a mens rea requirement in a criminal statute may present constitutional difficulties in particular contexts. For instance, the Supreme Court in United States v. X-Citement Video, Inc. interpreted a statute criminalizing distribution of sexually explicit visual depictions of minors118 as requiring a defendant to have knowledge of the minority of those involved, in part based on First Amendment concerns.119 Ordinarily, restrictions on speech based on its content are presumptively unconstitutional,120 and although child pornography generally falls within an exception for unprotected speech,121 the X-Citement Video Court recognized prior precedent as suggesting that the absence of a mens rea requirement as to the character of such materials could “raise serious constitutional doubts” under the First Amendment.122 Additionally, some lower courts have suggested that “the imposition of severe penalties, especially a felony conviction,” for a strict-liability crime may violate the Due Process Clause of the Fifth Amendment,123 as “a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation.”124 Nevertheless, although the Supreme Court has struck down one strict-liability city ordinance on due-process grounds in a fairly unique circumstance 114 Leonid Traps, “Knowingly” Ignorant: Mens Rea Distribution in Federal Criminal Law After Flores-Figueroa, 112 COLUM. L. REV. 628, 633 (2012). 115 Staples, 511 U.S. at 607. 116 United States v. Figueroa, 165 F.3d 111, 116 (2d Cir. 1998) (Sotomayor, J.). 117 Staples, 511 U.S. at 607 n.3. 118 18 U.S.C. § 2252(a). 119 513 U.S. 64, 78 (1994). 120 CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion. 121 Id. 122 513 U.S. at 78; see United States v. Class, 930 F.3d 460, 468-70 (D.C. Cir. 2019) (noting that due-process vagueness analysis is “more searching” where law imposes criminal penalties, threatens to inhibit exercise of a constitutional right, and lacks a scienter requirement, but upholding statute prohibiting firearm possession on Capitol grounds despite lack of requirement that defendant know he is on Capitol grounds); but cf. United States v. Wilson, 565 F.3d 1059, 1068 (8th Cir. 2009) (noting that “the First Amendment calculus is different depending on the proximity of the defendant to the victim” and concluding that criminal prohibition on production of child pornography is “not entitled to any mens rea safeguards”). 123 United States v. Enochs, 857 F.2d 491, 494 n.2 (8th Cir. 1988); see also United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985) (indicating that mens rea may only constitutionally be eliminated “where (1) the penalty is relatively small, and (2) where conviction does not gravely besmirch,” and concluding that felony provision of Migratory Bird Treaty Act “d[id] not meet these criteria”); cf. United States v. DeCoster, 828 F.3d 626, 633 (8th Cir. 2016) (“The elimination of a mens rea requirement does not violate the Due Process Clause for a public welfare offense where the penalty is ‘relatively small,’ the conviction does not gravely damage the defendant's reputation, and congressional intent supports the imposition of the penalty.”). 124 Wulff, 758 F.2d at 1125. Congressional Research Service 14 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses involving “wholly passive” conduct with no notice or opportunity to comply,125 it has at other times appeared to affirm the constitutionality of strict-liability crimes more generally.126 Further, at least one federal appellate court has rejected the proposition that strict-liability felonies are per se unconstitutional.127 As such, the precise constitutional limits of strict-liability public welfare offenses are unclear.128 Application of Mens Rea to Specific Elements Assuming either that Congress has provided a mens rea requirement in a federal criminal statute, or that a court concludes a statute silent on the issue carries one, the question may arise as to which elements of the crime must meet that requirement. One innovation of the Model Penal Code was its recognition that the mental state for a particular crime should be analyzed on an element-by-element basis.129 This approach is also generally employed under federal law.130 In some statutes, Congress may have provided relatively clear instruction as to what mens rea term must be established for distinct components of the crime at issue—for example, 18 U.S.C. § 1591 makes it a crime to “knowingly” recruit a person “knowing” or “in reckless disregard of the fact” that force or other proscribed means will be used to cause the person to engage in a commercial sex act, or that the person is under the age of 18 and will be caused to engage in a commercial sex act.131 It is often the case, however, that Congress will provide penalties for a “willful” or “knowing” violation of a statute that contains multiple elements, for instance, or will omit a textual mental-state requirement for a crime that is presumed to have at least one as described above.132 In this circumstance, courts are left to glean congressional intent as to which elements must meet the mens rea term that either is specified or presumed. 125 Lambert v. California, 355 U.S. 225, 228-29 (1957). The provision in Lambert made it unlawful for any person convicted of a felony “to be or remain in Los Angeles for a period of more than five days without registering” with the Chief of Police. Id. at 226. In striking down the ordinance, the Court reasoned that notice is “[e]ngrained in [the] concept of due process.” Id. at 228. 126 See Balint, 258 U.S. at 252 (“It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled . . . .”); U.S. Gypsum Company, 438 U.S. at 437 (stating that “strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements”). The Court has also noted the muted impact of Lambert, stating that its “application has been limited” and signaling some agreement with the proposition that it “stands as an isolated deviation from the strong current of precedents[.]” Texaco, Inc. v. Short, 454 U.S. 516, 537 (1982) (citation and internal quotation marks omitted). 127 United States v. Engler, 806 F.2d 425, 433 (3d Cir. 1986) (stating that bright-line rule regarding felonies “ignore[s] a formidable line of cases imposing strict liability in felony cases without proof of scienter”); see also United States v. Stepanets, __F.3d__, No. 19-1471, 2021 WL 748385, at *6 (1st Cir. Feb. 26, 2021) (“[Precedent] refutes the notion that due process requires there to be a mens rea element in an offense as a categorical matter.”). 128 Engler, 806 F.2d at 434 (“The Supreme Court has indicated that the due process clause may set some limits on the imposition of strict criminal liability, but it has not set forth definite guidelines as to what those limits might be.”) 129 See supra § “Model Penal Code Approach.” 130 See, e.g., Rehaif v. United States, 139 S. Ct. 2191, 2195-96 (2019) (assessing which elements of statutory crime require knowledge). 131 18 U.S.C. § 1591(a). The statute also limits the “reckless disregard” standard for certain conduct and provides an exception to the requirement of knowledge or reckless disregard of age where “the defendant had a reasonable opportunity to observe the person” recruited. Id. §§ 1591(a), (c). 132 E.g., Rehaif, 139 S. Ct. at 2196 (referring to circumstance where mens rea term “introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends”); see supra notes 90-99 and accompanying text (discussing judicial development of presumption in favor of scienter). Congressional Research Service 15 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses As with the question of whether a statute has a mens rea requirement at all, federal courts have applied certain presumptions and general principles that guide them in determining which elements of a crime must meet a mental-state requirement. First, the Supreme Court has made clear that the presumption in favor of scienter applies to “each of the statutory elements that criminalize otherwise innocent conduct.”133 Put another way: “Absent clear congressional intent to the contrary, statutes defining federal crimes are . . . normally read to contain a mens rea requirement that attaches to enough elements of the crime that together would be sufficient to constitute an act in violation of the law.”134 For instance, in United States v. Bruguier, a federal appellate court concluded that a federal statute proscribing “knowingly” engaging in a sexual act with another person “if that other person is . . . incapable of appraising the nature of the conduct” or physically incapable of expressing lack of consent135 required both knowingly engaging in the sexual act and knowledge that the other person could not appraise the nature of the conduct or express lack of consent.136 In reaching this conclusion, the court noted that knowingly engaging in a sexual act with another person “is not inherently criminal under federal law, barring some other attendant circumstance.”137 By contrast, in United States v. Feola, the Supreme Court determined that a statute criminalizing assault on a federal officer “while engaged in or on account of the performance” of official duties138 did not require the assailant to be aware that the victim was a federal officer, emphasizing that a perpetrator “knows from the very outset that his planned course of conduct is wrongful” and thus the “situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected.”139 The distributive approach emphasizing a distinction between elements that make conduct criminal (as in Bruguier, where incapacity and knowledge thereof made conduct criminal that otherwise was not inherently so) and elements that “merely aggravate[] conduct that already is criminal” (as in Feola, where the element at issue merely defined a subset of assaults as federally punishable) has been subject to criticism for its lack of clarity.140 Recent Supreme Court cases have at times appeared to skirt the lack of clarity and move towards a rule more akin to the MPC approach—i.e., that, absent an indication of congressional intent to the contrary, a mental-state requirement applies to each material element of the offense.141 For example, in Flores-Figueroa v. United States, the Court addressed a provision imposing a mandatory two-year prison term on certain persons who “knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person.”142 In a largely textual analysis, the Court concluded that the statute required proof that the defendant knew that the “means of identification” belonged to another person, based in part on the recognition that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to 133 United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994). 134 United States v. Figueroa, 165 F.3d 111, 116 (2d Cir. 1998) (Sotomayor, J.). 135 18 U.S.C. § 2242. The statute is jurisdictionally limited to the special maritime and territorial jurisdiction of the United States and certain federal facilities. Id. 136 735 F.3d 754, 763 (8th Cir. 2013). 137 Id. at 761. 138 420 U.S. 671, 673 n.1 (1975) (quoting 18 U.S.C. § 111). 139 Id. at 685. 140 See Johnson, Rethinking the Presumption of Mens Rea, supra note 87, at 780 (“The academic commentary has been broadly critical of this limitation on the mens rea presumption.”). 141 See supra note 62 and accompanying text. 142 556 U.S. 646, 647 (2009) (quoting 18 U.S.C. § 1028A(a)(1)). Congressional Research Service 16 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses each element.”143 Some observers subsequently noted that this language could be viewed as “parallel[ing] the distributive default of the Model Penal Code,”144 though several Justices wrote separately in the case to make clear that they did not necessarily agree with the language as a “normative description of what courts should ordinarily do when interpreting such statutes.”145 The federal courts of appeals have largely recognized that Flores-Figueroa’s language does not “establish a bright-line rule that a specified mens rea always applies to every element of the offense.”146 In contrast, in Torres v. Lynch, the Court explained that “[i]n general, courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense.”147 Moreover, in Rehaif v. United States, the Court indicated that the presumption of scienter as to an element “applies with equal or greater force when Congress includes a general scienter provision in the statute itself,” citing the MPC provision that establishes a default distributive rule applying to all material elements.148 The Court in Rehaif also gestured to the “innocent conduct” analysis, however, in concluding that the statute at issue—which penalized “knowing[]” violations of a provision proscribing firearm possession by aliens unlawfully in the United States—required application of the knowledge standard to both the defendant’s conduct and immigration status, specifying that “the possession of a gun can be entirely innocent” and thus applying mens rea to immigration status helped “separate wrongful from innocent acts.”149 Regardless of whether or when a presumption of scienter attaches to other elements of a criminal offense, what is clear is that no presumption applies with respect to jurisdictional elements—i.e., elements that “simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct” by, for instance, limiting an offense to conduct “in or affecting commerce.”150 As the Court in Rehaif stated: “Because jurisdictional elements normally have 143 Id. at 652. 144 Traps, supra note 114, at 629; see also Darryl K. Brown, Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance, 75 L. & CONTEMP. PROBS. 109, 121 (2012) (“If [the Court’s] claim is taken as a canon of construction, it should work much like the MPC’s provision that dictates a culpability term should apply to all material elements.”). 145 Flores-Figueroa, 556 U.S. at 658 (Scalia, J., concurring); see also id. at 660 (Alito, J., concurring) (viewing as “fair” a “general presumption” that a specified mens rea applies “to all the elements of the offense” but collecting contextual instances where that presumption is rebutted). 146 United States v. Washington, 743 F.3d 938, 942 (4th Cir. 2014); see also United States v. Price, 921 F.3d 777, 786 (9th Cir. 2019) (“We have explicitly rejected the notion that the Court’s reading of ‘knowingly’ in Flores-Figueroa compels the same reading in every criminal statute that uses the word ‘knowingly.’”); United States v. Cox, 577 F.3d 833, 838 (7th Cir. 2009) (indicating that Flores-Figueroa “did not establish a rule for all circumstances”); United States v. Daniels, 653 F.3d 399, 410 (6th Cir. 2011) (“Flores-Figueroa does not compel a particular interpretation . . . . Rather, the resolution of this issue depends on the relative weight given to text and context.”). Some courts have expressly treated Flores-Figueroa as recognizing a presumption that a stated mens rea term, or at least a “knowingly” term at the beginning of a sequence of statutory elements, applies to every subsequent element, which can be rebutted “where the context or background circumstances of a statute lead to a different reading.” United States v. Bruguier, 735 F.3d 754, 761 (8th Cir. 2013) (citation and internal quotation marks omitted); United States v. Daniels, 685 F.3d 1237, 1248-49 (11th Cir. 2012) (“Although there is a general presumption that a knowing mens rea applies to every element in a statute, cases concerned with the protection of minors are within a special context, where that presumption is rebutted.”). 147 136 S. Ct. 1619, 1630 (2016). 148 139 S. Ct. 2191, 2195 (2019) (citing MODEL PENAL CODE § 2.02(4) (1985)). 149 Id. at 2197. 150 Id. at 2196 (noting that “jurisdictional elements do not describe the ‘evil Congress seeks to prevent’” (quoting Torres, 136 S. Ct. at 1630)). Congressional Research Service 17 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses nothing to do with the wrongfulness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter.”151 Meaning of Mens Rea Standards in Federal Statutes Beyond the questions of whether a statute contains mens rea requirements and, if so, which elements carry those requirements is the question of what the mens rea standards established under federal law actually mean. Many of the dozens of different mens rea terms in federal law are undefined.152 Further, the terms used may be conclusory and give little indication of what mental state is called for—for instance, terms such as “corruptly,” “maliciously,” “unlawfully,” and “feloniously” can all be found in Title 18 alone.153 As such, understanding what mental state is required for a given federal crime will almost necessarily require reference to judicial opinions construing that particular provision. Even then, “the same terms are defined differently depending on which substantive crime is at issue, which federal circuit one is in, and which judge within a given district is crafting the jury’s instructions.”154 As the National Commission on Reform of Federal Criminal Laws acknowledged decades ago, however, judicial opinions interpreting federal mens rea terms “display far fewer mental states than the statutory language” might suggest.155 Of “paramount importance” in federal criminal law are the concepts of “intention” or, in the language of the MPC, “purpose,” “as well as knowledge or awareness.”156 Less common, though still relevant, are concepts embodied at least partially in the MPC’s frameworks for recklessness and negligence.157 Different courts may have different approaches to these concepts and the definitions they entail. This section provides an overview of 151 Id. Additionally, relying on the notion that only the mens rea necessary to separate wrongful from otherwise innocent conduct is required, courts have found no need to read a mens rea requirement into provisions that merely enhance the sentence for conduct that is already criminally proscribed. E.g., Dean v. United States, 556 U.S. 568, 57576 (2009) (noting that “it is not unusual to punish individuals for the unintended consequences of their unlawful acts” and concluding no mens rea applied to a “sentencing enhancement . . . account[ing] for the risk of harm resulting from the manner in which the crime is carried out”); United States v. McDuffy, 890 F.3d 796, 801 (9th Cir. 2018) (“Thus, the presumption in favor of scienter is lessened, if not altogether absent, when considering sentencing enhancement provisions.”). Questions may arise as to when a provision in a statute constitutes an element of the offense versus an enhancement provision. Cf. United States v. Burwell, 690 F.3d 500, 505, 508 (D.C. Cir. 2012) (calling “misguided” the suggestion “that the label ‘element of the offense,’ as opposed to ‘sentencing factor,’ is determinative of the mens rea requirement” and emphasizing that “certain offense elements do not require proof of an additional mens rea so long as the offense as a whole carries a scienter requirement that separates innocent from criminal conduct”). 152 See supra notes 72-78; James A. Macleod, Belief States in Criminal Law, 68 OKLA. L. REV. 497, 511 (2016) (“The federal criminal code employs a far greater array of mental state terms than does the MPC, and these terms are typically left undefined in the statutes in which they are found.”). 153 See 1 WORKING PAPERS, supra note 73, at 119 (citing 18 U.S.C. §§ 201, 549, 1427, & 1506). 154 Macleod, supra note 152, at 511. Because mens rea, as “an ingredient of the crime charged,” is “a question of fact which must be submitted to the jury,” Morissette v. United States, 342 U.S. 246, 274 (1952), judicial interpretations of statutory mens rea requirements typically arise in the context of challenges to the trial court’s jury instructions defining the mental-state element that must be proved. See, e.g., Liparota v. United States, 471 U.S. 419, 423 (1985) (involving challenge to jury instructions based on district court’s refusal to instruct jury that specific intent was required). 155 Id. at 120. 156 O’MALLEY, GRENIG, & LEE, supra note 6, § 17:01. 157 MODEL CRIM. JURY INSTRUCTIONS ch. 5 (U.S. CT. APPEALS, 3D CIR. 2018) [hereinafter THIRD CIRCUIT JURY INSTRUCTIONS], https://www.ca3.uscourts.gov/model-criminal-jury-table-contents-and-instructions (“Federal crimes commonly include the mental states intentionally, knowingly, or willfully, and less commonly recklessly or negligently.”). Congressional Research Service 18 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses the meanings of some of the most common mens rea standards under federal law, grouped loosely into categories similar to those recognized in the MPC. Intentionally, Knowingly, and Willfully The terms “intentionally,” “knowingly,” and “willfully” are among those “used most frequently” in federal criminal statutes, but as with other federal mens rea terms, they have “eluded precise definition.”158 It seems that all three terms require at least some degree of conscious, subjective awareness of the element to which the requirement attaches.159 Beyond this baseline, the meanings of the terms may vary or overlap considerably depending on the court, statute, and context of their use.160 Intentionally and Knowingly The concept of committing an offense “intentionally” has long been mired in confusion given the varying usages of the term at common law and the rather unclear distinction between “specific intent” and “general intent” crimes.161 In one view, intent might be thought to embody a “bifurcated concept” embracing a requirement that a person “consciously desire[]” some result or that they be aware that it “is practically certain,” whatever their desire.162 Under this approach, any “limited distinction” between knowledge and intention or purpose is not “considered important since ‘there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results.’”163 An ostensible blurring of the concepts of intention and knowledge is embodied in some federal court jury instructions that define “knowingly” as “voluntarily and intentionally,”164 as well as cases that may treat the term “intent” as “requir[ing] only that the defendant reasonably knew the proscribed result would occur” or as 158 O’MALLEY, GRENIG, & LEE, supra note 6, § 17:01. A fourth term bearing similarity to the other three is “maliciously,” which, in one formulation, denotes intent to do a prohibited act without justification, mitigation, or excuse. E.g., United States v. Kelly, 676 F.3d 912, 918 (9th Cir. 2012); cf. United States v. Grady, 746 F.3d 846, 849 (7th Cir. 2014) (approving jury instruction defining “maliciously” as “intentionally or with deliberate disregard of the likelihood that damage or injury would result” but omitting proposed addition of phrase “without just cause or reason”). The concept of “malice” is used to define the requisite mental states for certain federal homicide crimes, which also provide an example of one circumstance where the “mitigation or excuse” component of the above definition is relevant—murder and voluntary manslaughter both require intent to kill or cause serious bodily injury (or at least extreme recklessness as to such result), but voluntary manslaughter bears a mitigating element of “sudden quarrel or heat of passion” that renders it “without malice.” United States v. Serawop, 410 F.3d 656, 664 (10th Cir. 2005); see United States v. Delaney, 717 F.3d 553, 557 (7th Cir. 2013) (“This is puzzling, because ‘malice aforethought’ in the statute means intent and so what does it mean to say that a person did something intentionally but without malice?”). Malice can also bear a distinct meaning that incorporates notions of “evil purpose or motive” in at least one statute. See United States v. Hassouneh, 199 F.3d 175, 181 (4th Cir. 2000) (“[T]he history surrounding the progression of the Bomb Hoax Act confirms that Congress intended the term ‘acts willfully and maliciously’ to mean ‘acts with an evil purpose or motive.’”). 159 Or at least a high enough degree of risk that the existence of the element is “virtually certain.” Shen & Hoffman, supra note 33, at 1312 (describing “most recent major fault line in the law of intentionality” as distinguishing between “desire-based intent” and “a new category of ‘recklessness-plus’” that is “grounded in the degree of risk the actor is consciously undertaking”). 160 E.g., Bryan v. United States, 524 U.S. 184, 191 (1998) (“The word ‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.”). 161 See supra § “Background.” 162 United States v. U.S. Gypsum Co., 438 U.S. 422, 445 (1978) (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 196 (1972)). 163 Id. 164 E.g., United States v. Tracy, 36 F.3d 187, 194 (1st Cir. 1994). Congressional Research Service 19 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses requiring that the defendant “specifically intended such an outcome as his purpose” depending on the common-law categorizations of specific versus general intent.165 This approach may lead to disagreement as to whether particular federal statutes with an intent requirement call for merely awareness or a higher degree of purpose or desire,166 though courts have often applied a general intent standard as a default.167 The approach168 largely reflected in the MPC and some federal precedent is to distinguish between “intention” or purpose on the one hand as being limited to a conscious object or desire, and “knowledge” on the other hand as capturing a requirement of awareness of a high probability or to a practical certainty.169 The Supreme Court in Bailey referenced this distinction approvingly and suggested that intention or purpose “corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.”170 165 United States v. Dyer, 589 F.3d 520, 528 (1st Cir. 2009); see also United States v. Tobin, 552 F.3d 29, 32-33 (1st Cir. 2009) (“Although the word ‘intent’ can often mean with ‘knowledge’ that a particular result will follow, it sometimes instead requires a ‘purpose’ to bring about a specific end.”). A specific intent requirement may even be construed to encompass recklessness in some contexts. See United States v. McAnally, 666 F.2d 1116, 1119 (7th Cir. 1981) (“[T]raditionally in the criminal law an extreme form of recklessness has been treated as intentional . . . .”); but see United States v. Adamson, 700 F.2d 953, 962 (5th Cir. 1983) (criticizing “loose references to recklessness” in discussions of specific intent requirement of statute proscribing misapplication of bank funds). Recklessness as a mens rea standard under federal law is discussed in more detail infra. 166 E.g., United States v. Veach, 455 F.3d 628, 632 (6th Cir. 2006) (acknowledging disagreement over whether statute proscribing threatened assault of certain federal officials “with intent to . . . intimidate,” among other things, is specific or general intent crime); United States v. Rodriguez, 416 F.3d 123, 126-27 (2d Cir. 2005) (disagreeing with Ninth Circuit that immigration statute requires purpose to reenter U.S. illegally, rather than merely “knowingly and intentionally” taking the action that constitutes an attempt to reenter). Depending on the statute, an intent requirement may also be conditional, i.e., intent may be established if the defendant intends to take a proscribed action or produce a proscribed result only “if necessary”; put differently, “a defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.” Holloway v. United States, 526 U.S. 1, 11 (1999). This principle is consistent with the approach of the MPC. See MODEL PENAL CODE § 2.02(6) (1985) (“When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.”). Intent additionally may be “transferred” where one has intent to harm a specific victim but a different victim is actually harmed instead. See, e.g., United States v. Savage, 970 F.3d 217, 276 (3d Cir. 2020) (surveying application of doctrine under federal law); cf. MODEL PENAL CODE § 2.03(2) (treating transferred intent as matter of causation). 167 E.g., United States v. Lynch, 881 F.3d 812, 815 (10th Cir. 2018) (“Where specific intent is not required, criminal statutes are usually read to require ‘only that a defendant know the facts that make his conduct illegal.’” (citation omitted)); United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir. 1995), superseded by statute as recognized in United States v. Randolph, 93 F.3d 656, 661 (9th Cir. 1996) (“[W]hen a statute does not contain any reference to intent, general intent is ordinarily implied.”). As described supra, whether a particular federal statute establishes a general or specific intent crime is ultimately a question of legislative intent that may depend on the text of the statute, how the crime at issue was treated at common law, and legislative history, among other things. E.g., United States v. Lamott, 831 F.3d 1153, 1156-57 (9th Cir. 2016) (considering “[s]everal factors” as indicative of congressional intent to establish general intent crime, including lack of use of phrase “with intent to,” common law precedent regarding assault and battery, and legislative record surrounding passage of law). 168 O’MALLEY, GRENIG, & LEE, supra note 6, § 17:01 (quoting WAYNE R. LAFAVE, CRIMINAL LAW § 3.5 (4th ed. 2003)). 169 See supra § “Model Penal Code Approach.” Some federal courts may frame knowledge in terms of “belief” rather than awareness, particularly in contexts such as sting operations where a circumstance element at issue may not actually be present. E.g., United States v. Flores, 945 F.3d 687, 712 (2d Cir. 2019) (“[A]lthough knowledge is . . . belief substantiated by veracity, in the context of a sting operation belief is tantamount to knowledge.” (citation and internal quotation marks omitted)). 170 United States v. Bailey, 444 U.S. 394, 405 (1980); see also United States v. Ramamoorthy, 949 F.3d 955, 961 (6th Cir. 2020) (“To commit a general-intent crime, a defendant must only intend to do the act that the law proscribes. To commit a specific-intent crime, a defendant must do more than knowingly act in violation of the law. He must also act with the purpose of violating the law.” (internal citations and quotation marks omitted)). One commentator has argued Congressional Research Service 20 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Some federal courts utilize a definition of “knowing” that approximates the MPC approach, instructing that to act knowingly a defendant must have “realized what he was doing and [be] aware of the nature of his conduct” rather than acting “through ignorance, mistake or accident.”171 Congress has also signaled an intent to distinguish between the two mens rea terms in this way in particular statutes. For instance, prior to 1986, the Computer Fraud and Abuse Act (CFAA) proscribed “knowingly” accessing a computer without authorization or exceeding authorized access in certain circumstances.172 In its 1986 amendments, however, Congress changed the standard from “knowingly” to “intentionally,” and the Senate report emphasized that the change was meant to require “more than that one voluntarily engaged in conduct . . . . Such conduct . . . must have been the person’s conscious objective.”173 For federal statutes that establish a “knowing” mens rea requirement, one issue that can arise concerns a circumstance where a person may not have positive knowledge of the element at issue “only because he consciously avoided it.”174 In this situation, every federal circuit has recognized that so-called “willful blindness” or “deliberate ignorance” can equate to knowledge.175 Though the precise formulations and requirements vary, courts “appear to agree on two basic requirements: (1) The defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”176 For instance, if a person is found to be transporting narcotics in the trunk of their car and claims that their suspicions were aroused by the smell of dryer sheets used to mask the narcotics’ odor but that they did not actually know the trunk contained drugs, a willful blindness jury instruction may be appropriate in a subsequent prosecution for knowing possession of a controlled substance that the Supreme Court’s dicta in Bailey mistakenly treats the difference between general and specific intent as “reducible to the difference between two mental states.” Johnson, Rethinking the Presumption of Mens Rea, supra note 87, at 790 n.119. As described above, at least one conception of the difference between general and specific intent is that it delineates between the elements to which a given mental state attaches. See id. at 790-91; supra § “Background.” 171 United States v. Salinas, 763 F.3d 869, 880 (7th Cir. 2014). Ordinarily, “the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense” and not knowledge of the law or unlawfulness. Bryan v. United States, 524 U.S. 184, 193 (1998) (emphasis added). However, construction of particular statutes may lead to a different result based on the analysis described supra, § “Application of Mens Rea to Specific Elements.” For instance, in Liparota v. United States, the Court determined that a statute prohibiting knowing use of food stamps “in any manner not authorized” by statute or regulation required a defendant to know “that his conduct was unauthorized or illegal.” 471 U.S. 419, 434 (1985). 172 See United States v. Sablan, 92 F.3d 865, 868 (9th Cir. 1996) (describing legislative history). 173 S. REP. NO. 99-432, at 6 (1986); see United States v. Drew, 259 F.R.D. 449, 459 (C.D. Cal. 2009) (quoting report language in interpreting CFAA). The notion of intent as conscious object or purpose can also be significant for other kinds of crimes like homicide, which is federally proscribed in jurisdictionally limited circumstances, and treason. See Bailey, 444 U.S. at 405. 174 United States v. Jewell, 532 F.2d 697, 702 (9th Cir. 1976). 175 See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011) (mentioning that “the Courts of Appeals . . . all appear to agree” on basic parameters of willful blindness doctrine). The concept, however, is “categorically different from negligence or recklessness,” United States v. Heredia, 483 F.3d 913, 918 n.4 (9th Cir. 2007) (en banc), which are discussed in more detail infra. 176 Id. One point of apparent disagreement concerns whether the defendant also must have the “motive in deliberately failing to learn the truth . . . to give himself a defense in case he should be charged with the crime.” Heredia, 483 F.3d at 919 (rejecting motive requirement); but see United States v. Davis, 901 F.3d 1030, 1034 (8th Cir. 2018) (stating that willful blindness instruction “is proper if the evidence supports the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” (internal alteration & quotation marks omitted)); see generally Alexander F. Sarch, Willful Ignorance, Culpability, and the Criminal Law, 88 ST. JOHN’S L. REV. 1023 (2014) (describing disagreement). Congressional Research Service 21 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses under 21 U.S.C. § 841(a)(1).177 A rationale frequently given for the doctrine is that “persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.”178 Willfully Beyond “knowingly” and “intentionally,” another of the most commonly used mens rea terms in federal criminal law is “willfully,”179 which may appear as a standalone term180 or in conjunction with “knowingly.”181 The term also exemplifies, perhaps better than any other, the non-uniformity of mental-state requirements under federal law. As the Supreme Court has recognized, the “word ‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.”182 Other courts have referred to the term more colorfully as “notoriously slippery” and a “chameleon word.”183 As the National Commission on Reform of Federal Criminal Laws summarized it, courts “have endowed the requirement of willfulness with the capacity to take on whatever meaning seems appropriate in the statutory context,” providing “[p]erhaps the best illustration of the confusion engendered by existing statutory formulations of the mental element” in federal criminal law.184 In a common formulation, “a ‘willful’ act is one undertaken with a ‘bad purpose,’” meaning that to act “willfully” requires “knowledge that [one’s] conduct was unlawful.”185 This formulation distinguishes the term “willfully” from a common conception of “knowingly” under federal law, as the latter ordinarily requires only knowledge of the facts that constitute an offense.186 The typical knowledge-of-unlawfulness formulation of “willfully” does not, however, require knowledge of the precise legal provision or prohibition that has been violated.187 Rather, all that is required is knowledge that conduct is unlawful “in some general sense.”188 177 See Heredia, 483 F.3d at 917-18 (describing this situation). 178 United States v. Parker, 872 F.3d 1, 14 (1st Cir. 2017) (quoting Global-Tech, 563 U.S. at 766). 179 O’MALLEY, GRENIG, & LEE, supra note 6, § 17:01. 180 E.g., 18 U.S.C. § 924(a)(1)(D) (establishing criminal penalties for those who “willfully” violate certain firearm- related requirements). 181 E.g., 18 U.S.C. § 1501 (prohibiting “knowingly and willfully” obstructing a federal process server, among other things). 182 Bryan v. United States, 524 U.S. 184, 191 (1998) (quoting Spies v. United States, 317 U.S. 492, 497 (1943)). 183 United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009) (quoting United States v. Ladish Malting Co., 135 F.3d 484, 487-88 (7th Cir. 1998)). 184 See 1 WORKING PAPERS, supra note 73, at 120. 185 Bryan, 524 U.S. at 191. 186 Dixon v. United States, 548 U.S. 1, 5 (2006). As noted above, construction of particular statutes may result in a definition of “knowingly” that does include knowledge of unlawfulness to some degree, which may be thought of as more akin to the typical formulation of a willfulness requirement. See supra note 171. 187 See Bryan, 524 U.S. at 195-96 (rejecting argument that willfulness requirement in firearm-related statute necessitates knowledge of the law, as “knowledge that the conduct is unlawful is all that is required”); Screws v. United States, 325 U.S. 91, 103, 106 (1945) (Reading willfulness requirement in 18 U.S.C. § 242 as calling for “specific intent to deprive a person of a federal right made definite by decision or other rule of law” but indicating that defendant does not need to be “thinking in constitutional terms”). 188 United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009); see also United States v. Kosinski, 976 F.3d 135, 154 (2d Cir. 2020) (“As a general matter, a person who acts willfully need not be aware of the specific law that his conduct may be violating. Rather, knowledge that the conduct is unlawful is all that is required.” (citation and internal quotation marks omitted)); United States v. Hernandez, 859 F.3d 817, 823 (9th Cir. 2017) (“In this case, the government was required to show that [the defendant] knew his transportation of firearms . . . was somehow unlawful, even if he did not Congressional Research Service 22 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Courts have identified additional “levels of interpretation” of “willfully.”189 In some contexts the term may merely “denote an act which is intentional, or knowing, or voluntary, as distinguished from accidental”—in other words, it may be synonymous with other mens rea standards discussed in this section.190 By contrast, in the context of “highly technical statutes that present[] a danger of ensnaring individuals engaged in apparently innocent conduct,”191 courts have recognized a heightened formulation of “willfulness” that requires “proof that the defendant actually knew of the specific law prohibiting the conduct.”192 For instance, in Cheek v. United States, the Supreme Court determined that statutory provisions of the tax code criminalizing willful tax evasion and willful failure to file returns required “actual knowledge of the pertinent legal duty,” as the complexity of the tax laws “made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed” by those laws.193 Example of Courts’ Construction of Arson Statute, 18 U.S.C. § 81 An example of the complications that may arise in construing federal statutes that require some level of intentionality or awareness can be found in dueling court constructions of 18 U.S.C. § 81.194 That statute prohibits “willfully and maliciously sett[ing] fire to or burn[ing] any building, structure or vessel,” among other things, in a certain federal jurisdictional context.195 In know of the specific legal duty, or the particular law, that made it unlawful.”). 189 Starnes, 583 F.3d at 210. 190 Bryan, 524 U.S. at 191 n.12; see, e.g., United States v. Gonsalves, 435 F.3d 64, (1st Cir. 2006) (“Willfulness . . . means nothing more in this context than that the defendant knew that his statement was false when he made it or . . . consciously disregarded or averted his eyes from its likely falsity.”). This is the definition of willfulness embraced by the MPC, which states that a willfulness requirement “is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” MODEL PENAL CODE § 2.02(8) (1985). Under federal law, in fact, a requirement of willfulness may even be construed to encompass recklessness depending on the context. See United States v. Blankenship, 846 F.3d 663, 673 (4th Cir. 2017) (“In interpreting a variety of criminal statutes, other Circuits have reached the same conclusion: . . . ‘reckless disregard’ still can—and does—constitute criminal willfulness.”). Recklessness as a mens rea requirement in federal statutes is discussed in more detail infra. 191 Bryan, 524 U.S. at 194. 192 Starnes, 583 F.3d at 211; see Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (applying stringent formulation of willfulness requirement to financial anti-structuring laws). In these circumstances, the inclusion of a willfulness requirement may operate as an exception to the longstanding maxim that “ignorance of the law or a mistake of law is no defense to criminal prosecution.” United States v. Marshall, 753 F.3d 341, 345 (1st Cir. 2014) (Souter, J.) (quotation omitted). In other words, where a willfulness requirement necessitates proof that the defendant actually knew of the legal provision that proscribed his conduct, ignorance of that law may constitute a defense to conviction because it negates the requisite mens rea. A discussion of these and other defense issues that relate to mens rea can be found infra, § “Selected Additional Mens Rea Issues in Federal Law.” 193 498 U.S. 192, 200, 202 (1991). 194 See Batey, supra note 7, at 367-71 (describing statute and court opinion construing it as “a particularly clear example of the definitional possibilities inherent in general intent”). 195 18 U.S.C. § 81. In full, the statute provides: Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, or attempts or conspires to do such an act, shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both. If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be fined under this title or imprisoned for any term of years or for life, or both. Id. Congressional Research Service 23 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses United States v. M.W., the Tenth Circuit196 construed the statute’s “willfully and maliciously” mens rea requirement in the case of a student who broke into a school located on an Indian reservation and set fire to school records in the principal’s office.197 The fire got out of control and resulted in extensive damage to the school building.198 The district court found the student guilty of arson under 18 U.S.C. § 81 and, on appeal, the student argued that the statute required him to have “the intent to burn [the] building,” which he did not have because he only intended to burn the records.199 The Tenth Circuit applied the MPC approach and determined that (1) knowledge was sufficient to meet the willfulness requirement, and (2) because burning the building was a result element, the student could be convicted if he was “aware that it [was] practically certain that his conduct” would cause that result.200 In other words, the Tenth Circuit construed the “willfully and maliciously” term as requiring only knowledge—i.e., awareness to a practical certainty—that conduct would result in setting fire to a building and upheld the student’s conviction based on the lower court’s finding that he had such awareness.201 By contrast, in United States v. Doe (R.S.W.), the Ninth Circuit construed the same statute in similar factual circumstances as requiring neither intent to burn a building nor “knowledge this would be the probable consequence of the defendant’s act.”202 Rather, according to the court, all that the “willfully and maliciously” term required was general intent to do the act that caused a building to burn, i.e., “that the defendant set the fire intentionally and without justification or lawful excuse.”203 In reaching this conclusion, the court expressly rejected reliance on the MPC, observing that because the mens rea term was drawn from the common law definition of arson, the court should assume that Congress “knew how the common law defined that phrase” and “intended to adopt the [general-intent] meaning that common law gave” it when enacting 18 U.S.C. § 81.204 In dissent, one judge argued that the court’s construction effectively turned the statute into a strict liability offense, as the majority mistakenly applied a standard of intentionality “not to the proscribed conduct of setting fire to a building, but to [the defendant’s] mental state toward setting [items in the building] aflame.”205 As these two cases reflect, mens rea terms like “intentionally,” “knowingly,” and “willfully” may overlap or blend into each other, and judicial interpretations of such terms may differ markedly even as applied to the same statute under very similar factual circumstances. Thus, in M.W., the court viewed “willfully and maliciously” as requiring only knowledge, but it treated that knowledge requirement as extending to the result of a building being burned, while in R.S.W., the court purported to treat “willfully and maliciously” as synonymous with intention but concluded that intention (in the sense of voluntariness) with respect to the act of lighting the fire was sufficient to meet the statute’s mens rea requirement. 196 This report references a significant number of decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Fifth Circuit) refer to the U.S. Court of Appeals for that particular circuit. 197 890 F.2d 239, 239 (10th Cir. 1989). 198 Id. 199 Id. at 240. 200 Id. at 240-41. 201 Id. at 241. 202 136 F.3d 631, 635 (9th Cir. 1998). 203 Id. at 635. 204 Id. at 634, 636. 205 Id. at 637-38 (Fletcher, J., dissenting). Congressional Research Service 24 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses Recklessly and Negligently Though the mens rea concepts of recklessness and negligence are much less central in federal criminal law than are concepts of intention or knowledge,206 some federal criminal provisions do utilize them.207 In general, recklessness and negligence are distinct from other mens rea standards in that they focus on risk.208 Nonetheless, recklessness shares with higher forms of mens rea a requirement of subjective awareness, while negligence is often understood to establish an objective standard that arguably takes it out of the realm of a true “mental-state” requirement altogether.209 Recklessly According to the Supreme Court, the “dominant formulation” of a mens rea requirement of recklessness is that one “consciously disregard[s] a substantial risk” of harm.210 This formulation is drawn from the MPC, which defines recklessness as conscious disregard of “a substantial and unjustifiable risk” that an element exists or will result from one’s conduct.211 It appears that federal courts largely use this definition, or one that is substantially similar, in construing federal statutes that contain the term “reckless” or “reckless disregard.”212 As the definition suggests, criminal recklessness under federal law generally requires subjective awareness of a risk and deliberate disregard of it, i.e., “the intentional taking of a risk that might result in harm,”213 though there may be some variation among courts and across statutes as to whether awareness of 206 See O’MALLEY, GRENIG, & LEE, supra note 6, § 17:01 (stating that concepts of recklessness and negligence “have little relevance in federal criminal law”); THIRD CIRCUIT JURY INSTRUCTIONS, supra note 157, ch. 5, p. 36 (“‘Recklessly’ is not frequently used to define the state of mind requirement in federal criminal statutes.”). 207 E.g., 18 U.S.C. § 1591(a) (prohibiting, among other things, knowingly recruiting a person “in reckless disregard of the fact” that force or other proscribed means will be used to cause the person to engage in a commercial sex act); 18 U.S.C. § 755 (establishing criminal penalties for one who “negligently suffers [a federal prisoner] to escape,” among other things). 208 See, e.g., MODEL PENAL CODE §§ 2.02(2)(c)-(d) (1985). 209 E.g., id.; see supra note 6 and accompanying text; Godwin v. United States, 441 F. Supp. 3d 1243, 1257 n.9 (M.D. Ala. 2020) (“The basic distinction between recklessness and negligence is that an actor is criminally negligent when he should have been aware of the risk but was not, while recklessness requires that the defendant actually be aware of the risk but disregard it.” (alteration, citation, and internal quotation marks omitted)). 210 Voisine v. United States, 136 S. Ct. 2272, 2278 (2016) (quoting MODEL PENAL CODE § 2.02(2)(c) (1985)). 211 MODEL PENAL CODE § 2.02(2)(c) (1985). 212 E.g., Farmer v. Brennan, 511 U.S. 825, 836-37 (1994); United States v. Fagatele, 944 F.3d 1230, 1239 (10th Cir. 2019); United States v. Rodriguez, 880 F.3d 1151, 1159-61 (9th Cir. 2018); Anderson v. Kingsley, 877 F.3d 539, 54345 (4th Cir. 2017); United States v. Mottweiler, 82 F.3d 769, 771 (7th Cir. 1996); Macleod, supra note 152, at 513 n.54 (“[T]he MPC recklessness ‘formulation is substantially the same as the formulations of recklessness in federal and state criminal codes and judicial decisions.’” (quoting LARRY ALEXANDER & KIMBERLY KESSLER FERZAN, CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW 35 (2009)). 213 Anderson, 877 F.3d at 545; see Farmer, 511 U.S. at 836-37 (“The criminal law . . . generally permits a finding of recklessness only when a person disregards a risk of harm of which he is aware.”). The MPC further defines a “substantial and unjustifiable” risk as a risk “of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.” MODEL PENAL CODE § 2.02(2)(c) (1985). Some federal courts may include this further definition in jury instructions as well, recognizing that although recklessness requires subjective awareness, “the nature of the risk is measured by an objective standard.” United States v. Rodriguez, 880 F.3d 1151, 1161 (9th Cir. 2018) (emphasis added); but cf. THIRD CIRCUIT JURY INSTRUCTIONS, supra note 157, at ch. 5, pp. 35-36 (noting that although “the Third Circuit does not seem to have included this further definition in its few cases discussing recklessly, the trial court could include it in an instruction on recklessly if it thinks a further explanation is necessary”). Congressional Research Service 25 Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses facts and circumstances giving rise to a risk is sufficient to establish recklessness in the absence of awareness of the risk itself.214 Recklessness thus differs from a mens rea standard of “knowledge” primarily in regard to the degree of certainty of a circumstance or outcome of which a defendant is aware—in the MPC formulation that is sometimes used by federal courts, knowledge connotes awareness of a high probability or to a practical certainty; recklessness, by contrast, focuses on awareness of some lesser degree of risk.215 For example, the Fourth Circuit in United States v. Carr considered a federal statute prohibiting intentionally damaging or destroying certain buildings by means of fire or an explosive and causing the death of any person.216 The case required the court to distinguish between a knowing and reckless state of mind with respect to the death that occurred for sentencing purposes.217 The district court found that the defendant, who set fire to an apartment building resulting in the death of an occupant, was “recklessly indifferent to whether people would be in the apartment building” because the mailboxes, gas meters, and cars out front made it “obvious” the structure was occupied.218 The district court viewed this “reckless indifference” as “equat[ing] to knowledge” and thus refused to consider a lower sentence that could apply for recklessly causing death.219 On appeal, the Fourth Circuit rejected the lower court’s conflation of recklessness and knowledge, making clear that although both standards “require a subjective awareness of risk on the part of the actor,” the “degree of the risk that the actor is aware of” (i.e., a substantial risk versus practical certainty) distinguishes the two.220 The court held that, although the lower court’s findings regarding indicia of occupancy like mailboxes “certainly support[ed] a finding of recklessness,” its failure to make a finding on the question of whether the evidence supported the higher standard of knowledge (i.e., whether he acted “with an awareness that death was practically certain to result”) was erroneous.221 Given that the primary distinction between common definitions of knowledge and recklessness focuses on the degree of risk of a particular outcome, at least one circuit has held that, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46836. Public record. Not legal advice.