Search

There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deep-seated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm has shifted to neoretribution, and that the essential moral character of the criminal law has been rediscovered, jurors should likewise be rediscovered as the best arbiters of that moral inquiry. A return to jury sentencing would also mesh nicely with the Court's struggle in its Apprendi line of cases to find a sensible way to distinguish between elements and sentence-enhancers under the Sixth Amendment. A Sixth Amendment interpreted to include the right to jury sentencing would also restore the textual symmetry between the Sixth and Seventh Amendments. There are no constitutional, empirical, or policy reasons why a defendant accused of committing negligence has the right to have both his guilt and damages assessed by a jury, but a criminal defendant has only half that right. [ABSTRACT FROM AUTHOR]

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them. In a set of six exploratory studies reported here, we examine the way in which individuals infer others’ legally relevant mental states about elemental facts, using the framework established over fifty years ago by the Model Penal Code (“MPC”). The widely adopted MPC framework delineates and defines the four now-familiar culpable mental states: purpose, knowledge, recklessness, and negligence. Our studies reveal that with little to no training, jury-eligible Americans can apply the MPC framework in a manner that is largely congruent with the basic assumptions of the MPC’s mental state hierarchy. However, our results also indicate that subjects’ intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal practice; subjects tend to regard recklessness as a sufficient basis for punishment under circumstances where the legislatures and courts tend to require knowledge. [ABSTRACT FROM AUTHOR]

This Article empirically tests two key questions. First: How sensitive are jurors to variations in the language that delineates the criminal mental state categories? Second: To what extent do jurors assign culpability in the manner assumed by the Model Penal Code (MPC)? In prior work, we challenged numerous assumptions underlying the MPC mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. Our experiments showed that subjects had profound difficulty categorizing some of the mental states, particularly recklessness, in the context of scenarios in which hypothetical actors caused harmful results. And, when asked to punish hypothetical actors, subjects punished knowing behavior and reckless behavior indistinguishably. Here, we extend our prior work in two main ways. First, we show that a person's ability to apply the MPC mental states is susceptible to subtle variations in the language that defines and communicates them. For instance, we demonstrate that using slightly different wording can significantly improve participants' ability to accurately identify the mental state of recklessness (notwithstanding that reckless and knowing mental states remain by far the hardest to classify). Second, we show that even when people can see the mental state distinctions that the MPC draws, they don't necessarily rank order the mental states--by culpability level--in the order the MPC assumes. These findings raise questions about the normative basis for the knowing/reckless distinction in the MPC's mental state hierarchy in the context of result elements. Further, because even small changes in phrasing can produce significant differences in juror evaluation, the findings raise genuine concerns about the adequacy of MPC-based culpability instructions in criminal cases. Our results suggest the need for a critical reexamination of the substantial divide between the expectations and assumptions of drafters of criminal codes, on one hand, and empirical reality, on the other. [ABSTRACT FROM AUTHOR]