MENS REA REFORM AND ITS DISCONTENTS. (2024)

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INTRODUCTION

In an era of intense partisan gridlock, criminal justice reform hasbecome a rare area that promises at least some slight space forcompromise. (1) Indeed, recent years have seen a number of bipartisanbills introduced at the national level that, if passed, would take stepstowards addressing structural issues in the administration of criminallaw. (2) But compromise has not been without its challenges, and effortsat sweeping reform repeatedly have died on the cutting room floor. (3)

It is easy to imagine a range of potential sticking points in theeffort to forge a bipartisan consensus: the extent to which social andeconomic programs should be a part of the legislation; how to treat"violent" crime; how much to spend on programs forincarcerated people or people with criminal records; what role questionsof racial justice should play; and what prison sentences should beviewed as excessive. But one major obstacle on the road to federalcriminal justice reform has been an unexpected one: mens rea reform. (4)Mens rea--a key component of the substantive criminal law and a stapleof the first-year law school curriculum is the requirement that criminalconduct be accompanied by a "bad mind" or guilty mental state.(5)

Mens rea operates as a tricky issue of proof in many cases and whendealing with many statutes. Was a defendant malicious or negligent whenshe committed homicide? Did a defendant know that she was transportingheroin in her car, or was she merely reckless? But, judges, defendants,and prosecutors face particular problems when criminal statutes aresilent as to mens rea--i.e., when a statute fails to specify what mentalstate a defendant possessed. (6) Does silence mean that the legislatureintended to impose strict liability? Or should courts view silence asthe result of sloppy drafting and read in some sort of mental staterequirement? Reform would alter the existing federal criminal code byimposing a default mental state for all crimes. Congress still couldpass strict liability criminal statutes, but those statutes would needto be explicit about the strict liability provisions.

So, why have these reform proposals generated such controversy andtaken on such an important role in federal criminal justice reformpolicy? Certainly, mens rea is an important concept in criminal law, (7)and, legal scholars have devoted countless pages to examining the properrole of mens rea in assessing culpability and crafting criminalstatutes. (8) But it is not an issue that has cropped up frequently inthe growing public conversation about criminal justice reform. Questionsabout a defendant's mental state appear to have very little to dowith concerns about racial disparities, police violence, or structuralinequality. As protestors have taken to the streets and as editorialpages have filled with calls for fixing a broken system, mens rea reformhas hardly been the rallying cry, or even an afterthought. (9) Yet mensrea reform proposals have taken on outsized significance as the lateststumbling block in the effort to address an unwieldy and seeminglylimitless federal criminal system. (10) Among conservatives andlibertarians, mens rea reform has become a key component of legislativeefforts: the proliferation of laws that criminalize conduct even ifdefendants are unaware that they are acting unlawfully stands as apowerful illustration of big government and over-regulation runamok." For liberals, progressives, and many on the left, however,mens rea reform is not responsive to the real problems with criminallaw: Republican proposals would serve deregulatory ends and make itharder to prosecute corporate, financial, or environmental crime, butthe proposals would do little to address the plight of the poor peopleof color who make up a disproportionate part of the carceral population.(12)

This Article examines the debate over proposed mens rea legislationas a means of better understanding the contemporary criminal justicereform movement (or moment) and its limitations. With an eye to therelationship between criminal law and broader questions of politicaleconomy, I argue that the debate has much to tell us about the limits ofcriminal justice reform and the continued reliance on criminalization asa means of solving social problems. This Article explores the terms ofthe debate and reveals the fault lines that lurk below--and threaten toupset--the movement. I argue that the split on mens rea reform is notsimply a left or right disagreement about regulated markets and thewelfare state; it also reveals disagreements on the political left aboutthe nature of the state and the proper role of criminal law andincarceration in efforts to advance equality and curb the abuses ofcapital. Where a long line of literature has explained massincarceration as the exclusive product of tough-on-crime conservatism,(13) this Article joins a small but growing literature that examinesleft complicity in--and sometimes support for--the policies that builtthe carceral state. (14)

To be clear at the outset, I am not advocating for or against mensrea reform legislation as a desirable component of a broader package ofcriminal justice reform policies. Rather, I hope to demonstrate how thedebate over mens rea reform--and, particularly, opposition to it fromthe political left--illustrates deeper pathologies in U.S. criminalpolicy. Recognizing these pathologies need not compel a specific policyoutcome. But it should force reform opponents to recognize thedistributional costs of continued reliance on a criminal regulatorymodel. (15) And, perhaps more importantly, it should force opponents torecognize the place of mens rea reform debates within the broaderconstellation of criminal policymaking and criminal justice reform. Atit* core, my claim is that meaningful change in the criminal system willrequire different groups and interests to move beyond criminalizationand incarceration when they confront bad actors or bad conduct. It iseasy to talk about reform, reducing sentences, or decriminalization inthe abstract. It is much more difficult to embrace a decarceral posturewhen dealing with specific cases or specific conduct that one views asparticularly pernicious.

This Article uses left and center-left opposition to mens reareform as a way of appreciating the stickiness or intractability of"governing through crime." (16) To this end, my argumentunfolds in four Parts: Part I briefly explains the broader context formens rea reform proposals. I situate mens rea reform proposals within adiscourse on overcriminalization and against the backdrop of strictliability offenses as a growing portion of the criminal code. Next, PartII introduces the statutory framework of mens rea reform, describes therecent legislative proposals, and shows how mens rea reform would workand how it might affect individual case outcomes. Part III tracks thedebate over mens rea reform. In this Part, I examine both the sources ofprogressive opposition as well as core disagreements about therelationship between the carceral state and the regulatory state.

Finally, Part IV steps back to discuss the broader significance ofthese debates and why opposition to mens rea reform displays theshortcomings of progressive commitments to decarceration and criminaljustice reform. In this Part, I identify three core pathologies of U.S.criminal policy and argue that opposition to mens rea reform reflectseach of them: (1) a commitment to using criminal law as the defaultregulatory model; (2) a tendency to level up when faced with inequality(i.e., to punish the powerful defendant more, rather than punishing thepowerless defendant less); and (3) the temptation for mass incarcerationcritics to make exceptions and support harsh treatment for particularlyunsympathetic defendants. To be clear, my claim is not that mens reareform meaningfully addresses deeper structural flaws in the criminalsystem or that these bipartisan bills are without flaws. Rather, myclaim is that the opposition marks a troubling inability to step outsideof the criminalization paradigm. I conclude by arguing for a morecapacious vision of criminal justice reform that would rejectcriminalization and incarceration as desirable vehicles for advancingsocial justice.

I. THE CONTEXT OF MENS REA REFORM

The academic literature on mens rea reform generally skirts thedistributional questions at the heart of conversations about massincarceration. (17) This literature--unlike much contemporary criminaljustice scholarship--frequently avoids issues of social marginalization,race, or structural inequality and instead focuses on questions of moralculpability, "rule of law", and "neutral" legalprinciples. (18) A primary goal of this Article is to reframe orreconsider debates about mens rea reform through the broader lens ofmass incarceration, considering the distributional consequences of theproposals and their opposition. But, before stepping back to this largerframe, this Part situates mens rea reform in the context of theliteratures from which it has grown: (1) the opposition toovercriminalization; and (2) the historical hostility to the use ofstrict liability in criminal law.

A. OVERCRIMINALIZATION

Everything is a crime, and everyone is a criminal. (Well, almost.)That has become the refrain among a growing chorus of critics who decrythe phenomenon of "overcriminalization." (19)Overcriminalization--the over- or mis-use of criminal law (20)--wasfirst diagnosed by Sanford Kadish in the 1960s and has remained a topicof scholarly inquiry for the last fifty years. (21) Initially, thecritique generally enjoyed traction on the civil libertarian left, wherescholars identified morals legislation as a product of conservatism runamok; over time, though, the critique attracted voices on the right,which focused on regulatory crimes as illustrations of big governmentand the regulatory state gone wild. (22) In various forms, theovercriminalization critique has achieved substantial purchase not onlyin the academy but among a range of attorneys and policymakers. (23)

The push for mens rea reform has grown out of the literature onovercriminalization--when too much conduct is criminalized, the argumentgoes, we need to come up with a way of imposing checks on state power.(24) When it is so easy to commit a crime unknowingly, something mustbe amiss. If criminal law is supposed to punish conduct that is morallyculpable, isn't it a problem when people are punished when they hadno reason to believe they were doing anything wrong? (25) In introducingthe Mens Rea Reform Act of 2017, Senator Orrin Hatch made the link toovercriminalization explicit:

Rampant and unfair overcriminalization in America calls for criminaljustice reform, which starts with default mens rea legislation ....Requiring proof of criminal intent protects individuals from prisontime or other criminal penalties for accidental conduct or foractivities they didn't know were wrong. In recent years, Congress andfederal agencies have increasingly created crimes with vague orunclear criminal intent requirements or with no criminal intentrequirement at all. The Mens Rea Reform Act will help correct thatproblem .... (26)

Drawing on the historical role of mens rea, Stephen Smith similarlyhas argued that mens rea reform should be a critical component ofaddressing the scourge of overcriminalization. (27) In Smith'saccount, the absence of express mental state requirements not onlyerodes necessary gradations of proportionality and moral blame; thesilence and lack of clarity also are "troubling because mens rearequirements are an essential safeguard against unjust convictions anddisproportionate punishment." (28)

According to this line of critique, an adequate (and explicit)mental state requirement is one of "the greatest safeguards againstovercriminalization." (29) Or as Representative Bobby Scott put it,"without these protective elements in our criminal laws, honestcitizens are at risk of being victimized and criminalized by poorlycrafted legislation and overzealous prosecutors." (30) The concernhere, as in other corners of overcriminalization literature, is thatcriminal laws are extremely broad and reach a great deal of conduct;without clear terms and without internal checks, too much power isplaced in the hands of prosecutors (and, by extension, the state). (31)In Without Intent: How Congress Is Eroding the

Criminal Intent Requirement in Federal Law, a 2010 report by theNational Association of Criminal Defense Lawyers and the HeritageFoundation, mens rea reform is framed as an important antidote to theinterwoven problems of overcriminalization and prosecutorial discretion:

Prosecutorial discretion plays an important role in the Americancriminal justice system .... But a criminal offense should never be sobroad, or its mens rea requirements so lax, that it allows prosecutorsto obtain convictions of persons who are not truly blameworthy and whodid not have fair notice of possible criminal responsibility. (32)

The absence of clear mens rea requirements, therefore, exacerbatesthe already-troubling dynamics of an expansive criminal code enforced byprosecutors able to leverage their almost-unchecked power anddiscretion.

In other words, we can understand mens rea reform as a vehicle forreining in criminal law and addressing the problem ofovercriminalization. (33) Or, more specifically, mens rea reform mightoperate as a vehicle for returning criminal law to its properscope--that is, if we can agree on the proper scope of criminal law. Theliterature on overcriminalization assumes (either explicitly orimplicitly) that there is a proper scope for criminal law and that thelegislature has overreached, (34) but decades of scholarship and policydebate indicate that not everyone can agree on what conduct criminal lawshould reach. (35) Nevertheless, the case for mens rea reform rests atleast in part on the belief that a culpable mental state should be acritical component of acceptable or legitimate criminal statutes.

Notably, in this framing, the focus of reformers is on helpingdefendants who are either innocent or, at least, not morally culpable.The majority of the discourse on overcriminalization implies both thatthere is a proper scope for criminal law and that there is some class ofdefendants who is deserving of punishment. (36) And, as discussed inPart III, this line of argument might well risk legitimating thetreatment of a range of defendants charged with crimes that don'tfit into the class of offenses frequently identified withovercriminalization. (37)

I soon will return to the arguments marshalled in support of mensrea reform. But, before examining the specific proposals in the nextPart, it is important to recognize the historical context of mens reareform. The movement to re-invigorate mental state requirements does notsimply draw from the rhetoric of overcriminalization. Indeed,overcriminalization critics identify a range of structural flaws andpolicy solutions that have little to do with mental states: to some, theproblem is the criminalization of "victimless" or"harmless" conduct; (38) to others, the problem is the use ofcriminal law to reinforce morality; (39) to others, the problem is theuse of criminal law where a civil sanction or regulatory measure mightdo the trick. (40) The push for mens rea reform draws from a specificstrand of overcriminalization literature that in turn draws fromcritical literature on the role of strict liability in criminal law.

B. STRICT LIABILITY

Much ink has been spilled on the place of strict liability incriminal law, (41) and rehashing this literature is not necessary tounderstand the mens rea reform debates, but to appreciate the fightsover mens rea reform requires us to recognize that the presence orabsence of mental state provisions in criminal statutes has long been apoint of contention.

Writing in 1960, two years before Kadish introduced the term"overcriminalization, Richard Wasserstrom observed that "[t]hehistory of... strict liability offenses which are of legislative originis of quite recent date." (42) Despite (or, perhaps, because of)their novelty, Wasserstrom framed strict liability offenses as thesubject of widespread scholarly criticism:

The proliferation of so-called "strict liability" offenses in thecriminal law has occasioned the vociferous, continued, and almostunanimous criticism of analysts and philosophers of the law. Theimposition of severe criminal sanctions in the absence of anyrequisite mental element has been held by many to be incompatible withthe basic requirements of our Anglo-American, and, indeed, anycivilized jurisprudence. (43)

In other words, strict liability "is a doctrine thatcontradicts the most basic principles of modern criminal law." (44)

Where mens rea requirements reinforce a retributive vision ofcriminal law (i.e., punishment should match moral culpability), strictliability offenses accord with a range of utilitarian approaches tocriminal law. (45) Over the course of the twentieth century, the riseof strict liability statutes in the United States confounded courts andcommentators uncertain of when and how statutory silence was meant to beinterpreted. (46) Some of this uncertainly simply reflected thechallenges of statutory interpretation: how should a judge decide whatthe legislature intended? (47) But, some of this uncertainty (and someof the hostility from the bench and the academy) appears to find root ina deeper theoretical objection: either a commitment to retributivistprinciples, (48) or a deep discomfort with the "regulatory"functions of criminal law. (49)

Confronted with the rising specter of strict liability statutes,the Supreme Court grappled with when and how to read in an implied mensrea requirement. (50) On March 7, 1922, the Court heard two cases thatraised the question of whether statutory silence meant strict liabilityor implied some mental state requirement: United States v. Balint (51)and United States v. Behrman. (52) In Behrman, Morris Behrman, a doctor,had been prosecuted for writing an unlawful prescription for an addictedpatient in violation of the Narcotic Drug Act of December 17, 1914. (53)Behrman sought to take advantage of a statutory exception because of hisprofession and because he was unaware that the patient suffered fromaddiction. (54) In Balint, a group of defendants were prosecuted forviolating the same Act by selling cocaine and opium derivatives. (55)Here, the defendants claimed that the indictment was defective becauseit didn't require proof that they knew they were selling controlledsubstances. (56)

Both decisions came down on the same day. In Behrman, the Courtrejected the defendant's arguments and concluded that "[i]fthe offense be a statutory one, and intent or knowledge is not made anelement of it, the indictment need not charge such knowledge orintent." (57) Balint similarly led to a prosecution-friendlyoutcome and an expansive reading of the statute. (58) Here, the Courtlooked to legislative intent in order to conclude that silence meantstrict liability:

Its manifest purpose is to require every person dealing in drugs toascertain at his peril whether that which he sells comes within theinhibition of the statute, and if he sells the inhibited drug inignorance of its character, to penalize him. Congress weighed thepossible injustice of subjecting an innocent seller to a penaltyagainst the evil of exposing innocent purchasers to danger from thedrug, and concluded that the latter was the result preferably to beavoided. Doubtless considerations as to the opportunity of the sellerto find out the fact and the difficulty of proof of knowledgecontributed to this conclusion. (59)

In short, the Court read the statute against the backdrop of a setof regulatory concerns, and concluded that strict liability reflected alegislative cost-benefit analysis, an analysis that the Courtneedn't undertake.

United States v. Dotterweich (60) decided just over twenty yearslater, continued that utilitarian theme and foreshadowed the use ofstrict liability as a means of reaching corporate executives. JosephDotterweich, a pharmaceutical executive, was prosecuted because hiscompany allegedly had shipped mislabeled and adulterated drugs inviolation of the Federal Food, Drug, and Cosmetic Act. (61) As in theearlier cases, Dotterweich was convicted under a strict liabilitystandard. (62) And, as in the earlier cases, the Court declined to readin a mens rea requirement by nodding to legislative intent and theutilitarian calculus of a new generation of regulatory or "publicwelfare" crimes:

The purposes of this legislation thus touch phases of the lives andhealth of people which, in the circ*mstances of modern industrialism,are largely beyond self-protection. Regard for these purposes shouldinfuse construction of the legislation .... The prosecution to whichDotterweich was subjected is based on a now familiar type oflegislation whereby penalties serve as effective means of regulation.Such legislation dispenses with the conventional requirement forcriminal conduct--awareness of some wrongdoing. In the interest of thelarger good it puts the burden of acting at hazard upon a personotherwise innocent but standing in responsible relation to a publicdanger. (63)

Once again, the role of criminal law as a social welfare mechanismoverrode traditional concerns with moral culpability. (64)

If Dotterweich were the last word on interpreting legislativesilence in criminal statutes, the story of mens rea reform might lookvery different. Advocates might still argue for a default mental state,but the argument would have to be couched in terms of an outrightopposition to strict liability; arguments about clarity, confusion,notice, and predictability would hold no water, as it would be prettyclear that statutory silence meant strict liability. But Morissette v.United States (65) complicates the story. Decided in 1952, the caseinvolved a scrap metal dealer, Joseph Edward

Morissette, who found some used bomb casings on an Air Forcebombing range and sold the metal at a junk market. (66) Morissette wasprosecuted under a statute that proscribed "knowingly"converting government property. (67) Morissette conceded that he hadtaken the shell casings and done so knowingly, but argued that hedidn't know they were of value to the government and therefore thathe didn't know he was "converting" them. (68) Unlike theearlier cases, the Morissette Court read "knowing" to apply toall the elements of the offense, accepting the defendant's readingand rejecting the government's call for strict liability. (69) Indistinguishing this case from its earlier decisions, the Court explainedthat those cases involved "public welfare offenses" (i.e.,newer regulatory crimes defined by a utilitarian focus on Progressiveregulation), whereas Morissette's alleged offense resembled acommon law crime (e.g., theft or larceny). (70) For such common lawcrimes, the Court reasoned, Congress was legislating against a set ofbackground understandings about mens rea requirements. (71)

Even the Court acknowledged the indeterminacy of the distinction ithad drawn:

Neither this Court nor, so far as we are aware, any other hasundertaken to delineate a precise line or set forth comprehensivecriteria for distinguishing between crimes that require a mentalelement and crimes that do not. We attempt no closed definition, forthe law on the subject is neither settled nor static." (72) In thedecades that followed, courts and commentators have sought guidance toassist in cases where imposing strict liability might feel at oddswith intuitions about culpability and justice. (73)

In United States v. Bass, for example, Justice Thurgood Marshallstressed the role of the court in checking the scope of criminalstatutes. (74)

"In various ways over the years," the Court "hasstated that when choice has to be made between two readings of whatconduct Congress has made a crime, it is appropriate, before we choosethe harsher alternative, to require that Congress should have spoken inlanguage that is clear and definite." (75)

Justice Marshall's concerns find purchase in a range ofinterpretive rules and legal doctrines. (76) For example, the rule oflenity, a canon of construction, instructs judges to construe ambiguouscriminal statues in favor of defendants. (77) Similarly, courts havestruck down statutes as void for vagueness when the language is sounclear that it fails to provide a defendant with constitutionallyadequate notice and invites discriminatory enforcement. (78) In recentyears courts (and, notably, the Supreme Court) have reached for theseand other interpretive tools more frequently when faced withprosecutors' broad readings of statutes or when faced with theat-times-shocking application of expansive criminal prohibitions. (79)

So, we might see mens rea reform as reflecting this skepticism ofstrict liability and as operating in tandem with judicial hostility toovercriminalization. In the next Part, I describe proposed mens reareform legislation and explain how it operates against the backdrop ofovercriminalization and interpretive framework of strict liability.

II. THE TERMS OF MENS REA REFORM

Understanding the context of mens rea reform and the impetus behindits enthusiastic support requires a reckoning with the place of strictliability in criminal law. But, mens rea reform is not a rejection ofcriminal strict liability. Indeed, under the terms of proposedlegislation, Congress certainly might dispense with any mental staterequirement. But, Congress would have to do so explicitly--silencewouldn't be enough. In this Part, I set forth the terms of therecent and pending legislative proposals that have generatedcontroversy. While broader questions about the place of strict liabilityin criminal law may stand as the backdrop for contemporary policydebates, it is the mens rea reform statutes that have served as thebattleground for this latest round of debates about the proper place andscope of criminal liability.

"Mens rea reform" describes a legislative agenda designedto address concerns about overcriminalization and statutes without clearmental state requirements. (80) Proposed legislation generally includestwo components: (1) a default mental state requirement, (81) and (2) abroader requirement that defendants know they are acting unlawfully.(82) In this Part, I address each component in turn.

A. REINTERPRETING SILENCE

First, proposed legislation typically imposes a default mentalstate requirement. (83) Many statutes are silent as to the mental staterequired for a given element. (84) For example, imagine a statute thatstates: "It is a crime to possess a gun capable of holding morethan nine bullets." Further, imagine a Defendant, Dan, who isprosecuted for possessing a gun that, in fact, contained a clip housingfourteen bullets. What must the prosecution prove beyond a reasonabledoubt? Certainly, that Dan possessed the gun and that the gun couldaccommodate a high-capacity clip. But does the prosecution need to showthat Dan knew how many bullets his gun could hold? Does the prosecutioneven need to prove that Dan knew he possessed a gun at all? At commonlaw, it would not be clear. (85) Because of statutory silence, a trialcourt would need to determine whether this was a strict liabilitystatute or whether the legislator intended that some mental staterequirement be read into the statute. (86) As should be clear, this is atricky enterprise that has very real consequences--whether theprosecution must prove knowledge might be the difference between aguilty verdict (or, more likely, plea) and lengthy prison sentence, onthe one hand, and an acquittal, on the other.

Mens rea reform legislation would alter this interpretive exercise.For example, the Mens Rea Reform Act of 2017 specifies that "themere absence of a specified state of mind for an element of a coveredoffense in the text of the covered offense shall not be construed tomean that Congress affirmatively intended not to require the Governmentto prove any state of mind with respect to that element." (87)Instead of a deep dive into legislative history (or some tcxtualistinquiry), (88) the court simply would apply a default rule. Most billswould require knowledge, so the court simply would read knowledge intothe statute. (89) Therefore, the prosecution would need to prove thatDan knowingly possessed a gun capable of accommodating more than ninebullets. Whether the case went to trial or whether Dan pleaded guilty,then, would rest on the strength of the prosecution's evidenceabout Dan's mental state.

As discussed in Part I, absent a default mens rea requirement,courts grapple with whether, when, and how to read in a mental staterequirement. In Staples v. United States, a case similar to Dan's,the Supreme Court was asked to interpret Congressional silence in theNational Firearms Act. (90) Under the Act, it was unlawful "forany person to possess a machinegun that [was] not properly registeredwith the Federal Government." (91) Harold E. Staples, III had beenconvicted in Oklahoma of violating the act by failing to federallyregister his gun. (92) While the statute was silent as to the mens rearequired, Staples argued that the government was required to have proventhat he "knew the weapon he possessed had the characteristics thatbrought it within the statutory definition of a machinegun." (93) Adivided Court concluded that Staples was right--the statute included animplied mens rea requirement as to each element of the offense. (94)

In the majority opinion, Justice Clarence Thomas lays out a rangeof factors or interpretive rules that courts should look to indetermining whether a legislature intended to impose strict liability.(95) Building on the "public welfare" analysis discussed inPart I, the Court concludes that some public welfare offenses mightimpose strict liability, but they generally do so only if they displaysome of the following factors or characteristics: (1) they arerelatively new crimes; (2) they expose defendants to relatively lowpenalty or stigma; (3) they regulate inherently dangerous activity; (4)they produce diffuse, rather than individualized harm; and (5) theywould lead to prosecutions where it was very difficult to prove mensrea. (96)

These considerations appear to speak to the idea that strictliability reflects a sort of tort-like regulatory approach to criminallawmaking. (97) But, even so, the Court does not provide clearguidelines going forward. (98) Indeed, after walking through theseconsiderations, the majority acknowledged the uncertainty of theinterpretive exercise: "We emphasize that our holding is a narrowone. As in our prior cases, our reasoning depends upon a commonsenseevaluation of the nature of the particular device or substance Congresshas subjected to regulation and the expectations that individuals maylegitimately have in dealing with the regulated items." (99) Inshort, the interpretation of legislative silence is an inexact science,leading to the potential for dramatically different outcomes dependingon the judge, the strength of the briefing, or the facts.

While understanding mens rea reform proposals requires us toappreciate the debates regarding strict liability, the proposalsaren't (or at least aren't explicitly) out-and-out rejectionsof strict liability. Instead, they offer a clear answer to the sorts ofinterpretive problems in Dotterweich, Morrissette, Staples, and similarcases. The proposed approach is hardly unheard of. Indeed, it mirrorsthe approach adopted by the Model Penal Code (MPC). (100) In MPCjurisdictions, the default mens rea is "recklessness," so anystatutory silence is interpreted to impose a recklessness requirement.(101) This is a lower bar than knowledge, but it still eliminates thepossibility of strict liability in cases like Dan's and ensuressome degree of interpretive uniformity and guidance.

According to Stuntz, "[b]y most accounts, the single mostimportant rule in the MPC is the establishment of recklessness--aculpability level that involves subjective fault--as the default mensrea ...." (102) And, as Kenneth Simons argues, the imposition of a"default mental state is important as a matter of principle. For itexpresses the classic liberal idea that moral culpability is, andcriminal liability should be, based on a conscious choice to dowrong." (103) This approach also would seek to recalibrate thebalance between culpability and harm in the federal sentencing scheme.To the extent the rise of strict liability offenses (or, at least,offenses with no specified mens rea) reflect a legislative emphasis onharm over culpability, (104) mens rea reform legislation would elevateculpability in the calculus. Rather than predicating punishment solelyon a finding of harmful conduct, a heightened mens rea requirement wouldre-focus judicial inquiry on an individual defendant's culpability.

B. OTHERWISE LAWFUL CONDUCT

The second prong of proposed mens rea reform legislation is moreunusual and more controversial. This component would require that theprosecution prove that defendants knew that they were breaking the law.Most criminal statutes say nothing about a defendant's mental stateas to the legality of conduct. (105) Take Dan's gun possessioncase. Even if the court were to read in a knowledge requirement, therewould be no requirement that Dan knew that his conduct was unlawful. Aslong as the prosecution could prove that he knew that he possessed a gunand that he knew that the gun could accommodate more than nine bullets(the material elements of the offense), the prosecution could obtain aguilty verdict. Dan could not raise a successful "mistake oflaw" defense--that is, his belief that he was behaving lawfullywould be irrelevant to any legal inquiry. Therefore, Dan would be guiltyeven if he had believed reasonably that he was acting lawfully.

Dan's situation mirrors a textbook case of "mistake oflaw": People v. Marerro. (106) In Marerro, Julio Marerro, acorrections officer from Connecticut brought his handgun with him on atrip to New York City. (107) Under New York law, it was a criminaloffense to carry a handgun without a permit, unless the carrier was a"peace officer," a category defined by statute and interpretedby courts to include police officers and state correctional workers.(108) The problem for Marerro: he worked for & federal prison inConnecticut. Marerro was arrested and prosecuted under the statute.(109) He claimed that he had made a good faith mistake--he thought thathe was a peace officer, he had read the law, and he even had consultedwith friends and coworkers. (110) The New York Court of Appeals wasunconvinced. Misinterpreting a criminal statute (even if themisinterpretation were reasonable) could not be a defense. (111)

At first blush, there may be nothing troubling about prosecutingDan or Marerro. They did break the law, after all, and perhaps thesocietal interest in ensuring compliance with the law (or in serving thesubstantive ends sought by the specific gun possession statute)outweighs any nagging sense that they are not morally blameworthy. (112)Indeed, the axiom that "ignorance of the law excuses no one"speaks to a belief that members of a polity have some obligation to knowand obey the laws that govern the community. (113) The "publicwelfare" reasoning of the Balint and Dotterweich Courts suggeststhat the harm to an individual defendant might pale in comparison to thegreater social utility of reducing ownership of dangerous weapons.

But, is such an expectation reasonable? There are over fourthousand federal criminal laws, and, over the last fifty years, statesand localities have criminalized conduct at an alarming rate. (114) Putsimply, it is hard to believe that anyone--including the people who passor enforce criminal laws--actually lives up to this theoreticalobligation to know the law. (115) Given the massive scope of thesubstantive criminal law, there is good reason to think that someonetrying to fulfill this obligation and comply with the law might havetrouble doing so. (116) And, further, the distributive consequences ofsuch a knowledge gap might be particularly concerning: the wealthy,educated defendant (or the corporate defendant with skilled counseland/or a compliance department) might be able to stay more apprised ofthe law than a poor, uneducated defendant. (117) Indeed, we mightunderstand the prevalence of strict liability or limited mens rearequirements in the corporate crime realm as reflecting societalexpectations that "responsible corporate agents" shouldunderstand the law and be more vigilant than less sophisticated actors.(118)

It is worth noting one major limitation on this second component ofproposed mens rea reform legislation: these provisions would requirethat a defendant knew she was breaking the law in situations when areasonable person would not expect her conduct to be criminal. (119) TheStopping Over-Criminalization Act of 2015, for example, would requirethat "in the case of an offense, such as a regulatory offense,where a defendant might reasonably be unaware the conduct could becriminally punished, the Government must prove the defendant had reasonto know the defendant's conduct was unlawful." (120) So, theprosecution would not need to prove that a defendant knew it was illegalto kidnap a child, but the prosecution probably would have to prove thata defendant knew or should have known it was a criminal offense to campin a specific corner of a national park.

This limitation might be necessary from an efficiency or commonsense standpoint. Additionally, it is consistent with the way thatcourts already interpret criminal statutes. Courts generally considerthe presence or absence of a mens rea requirement a significant factorwhen they are concerned that defendants might be prosecuted for conductthey believed to be lawful. (121) That is, courts often are confrontedwith constitutional challenges based on a claim that the absence of amental state requirement has failed to provide notice and has fallenafoul of the constitutional limits on criminal statutes. (122) In thecontext of "mistake of fact" cases, courts generally impose abar on the defense if a defendant was engaged in otherwise unlawfulconduct. (123)

However, it may not be so easy to distinguish between clearlycriminal conduct and surprisingly criminal conduct. Indeed, thisdistinction and the assumption that it is an easy one to draw representa core problem with much of the discourse about"overcriminalization" (and, perhaps, criminal justice reformgenerally). (124) We might be able to come up with a list of crimes thatfall easily into one category or another--crimes that are clearly malumin se (i.e., wrong because they are morally blameworthy) and crimes thatare clearly malum prohibitum (i.e., wrong only because they have beencriminalized), but the line is much fuzzier than it initially appears.(125) Indeed, in a system where crimes are the product of legislativedecision-making, not some sort of common law process of criminalization,all crimes are (at least in some sense) malum prohibitum. (126) How alegislature chooses to define murder, rape, or arson is not necessarilyan apolitical or natural process. (127) In many ways, a discussion ofthis issue falls outside the scope of this Article and is fodder formuch more extensive analysis. But I flag it here as a way of notingthat, even if one were enthusiastic about the basic premises of mens reareform, there might be reason to ask whether the proposed legislaturelives up to its own claims and its own logic.

More pointedly, this limitation speaks to a distinction in theliterature and discourse on overcriminalization between "good"people who are caught up in the web of over-expansive criminal law and"real criminals." In his statement introducing the Mens ReaReform Act of 2017, Senator Hatch argued that the bill would"ensure that honest, hardworking Americans are not swept up in thecriminal justice system for doing things they didn't know wereagainst the law." (128) Read skeptically, it's not a stretchto hear the "honest" and "hardworking" as aracialized or class-based dog whistle. (129) (In his seminal work onovercriminalization, William Stuntz critiqued the expansion of criminalcodes that had led to the prohibition of "marginal middle-classmisbehavior.") (130) Even read more generously, the statementclearly delineates the class of Americans worthy of sympathy (us) andthe real law-breakers (them). The othering of people caught up in thecriminal system remains a major problem and impediment to meaningfulcriminal justice reform. (131) Indeed, in Part IV, I will return to thisconcept and argue that opposition to mens rea reform may actuallyreflect such an othering. (132) But the rhetoric of and literature onmens rea reform fail to reckon with these distinctions.

III. THE DEBATE OVER MENS REA REFORM

What's so objectionable about mens rea reform? As I suggestedat the end of the previous Part, there might be some logical flaws inthe structure of the proposals. Yet that, in and of itself, hardly seemsfatal. (133) It is not as though Congress generally passes onlylegislation that represents the paragon of logical and intellectualconsistency. Rather, mens rea reform has faced two primary objections:(1) it is not responsive to the real problems that plague the criminalsystem; and (2) it is designed to protect the wrong people. (134) Thesetwo objections are closely related, but in this Part, I address themseparately for the sake of clarity. (135) While some on the left havesupported mens rea reform, (136) the objections outlined in this Parthave generally been voiced exclusively by left or progressivepoliticians and activists.

A. SOLVING THE WRONG PROBLEMS?

The first critique of mens rea reform is that it simply misses thepoint. Understanding this critique (and evaluating its worth) requiresus to appreciate and agree on what the point is. (137) That is,what's wrong with the current state of affairs in U.S. criminallaw? There are many answers to that question--perhaps it is theastronomical prison population; perhaps it is the length of sentences;perhaps it is the dramatic racial and socioeconomic disparities at eachstage in the criminal process; perhaps it is the sheer number ofcriminal laws; perhaps it is the violence and militarizationincreasingly associated with policing; or, perhaps it is the economiccosts of operating the carceral state. This list represents only asample of issues that a reformist agenda might address. And, as I haveargued elsewhere, figuring out what problems we are concerned with isessential to a meaningful discussion about criminal justice reform.(138) But, even without drilling down to first principles, it should beeasy to see that mens rea reform probably is not directly responsive tomany of those concerns.

Worries about notice, respect for "rule of law," and thecriminalization of apparently innocent conduct may be compelling, butmens rea reform does not speak clearly to questions of distributive andracial justice. Nor does it have much to say about prison populations orthe social marginalization experienced by people caught up in thecriminal system. In short, mens rea reform does not speak the languageof mass incarceration. (139) And, while there might be a range ofreasons that mens rea reform is normatively desirable or why it is apolicy that should be supported, it is hard to view it as the sort ofsignificant step that many reformers seek.

In this respect, we might view mens rea reform as an outgrowth of amore formalist approach to criminal law and criminal justice. (140)Where much contemporary criminal law scholarship and policy discoursetake on the language of sociology or criminology in examining the placeof the criminal system in society, (141) mens rea debates (at least atfirst blush) appear to remain rooted in the realm of moral philosophy orformal legal analysis. Preoccupied with moral wrong and the theoreticaljustifications for criminal liability, such an approach often has littleto say about the consequences of punishment, the nature ofincarceration, or the forms of enforcement or social control thatcriminal law might trigger. (142) Questions of morality and formal legalreasoning certainly might be important or might have a critical role toplay in scholarly discourse or in determinations of institutionaldesign. But they appear far removed from the sorts of realist questionsthat define our contemporary moment in criminal law and policy debatesor the sorts of projects associated with new brands of "criminaljustice thinking." (143)

Similarly, mens rea reform proponents tend to draw from aproblematic tendency of the anti-overcriminalization movement: afixation on absurd statutes and absurd applications of criminal law. Itis common in the academic and advocacy literature on overcriminalizationfor critics to focus on what they take to be the outrageous applicationof criminal law--the criminal prohibition on the unauthorized use of"Woodsy Owl"; the prosecution of a defendant for mispackaginglobsters, etc. (144) From a rhetorical standpoint, these examplesprovide a compelling illustration of the staggering breadth of thecriminal code. And, for proponents of mens rea reform, they also showhow dangerous strict liability can be: if no one would expect conduct tobe criminalized, or if that conduct is done frequently, then a strictliability standard seems as though it allows for a huge amount ofunknowingly criminal conduct. (Such a result would, in turn, inviteselective enforcement or erode respect for the legal system.)

But, even among staunch critics of mass incarceration andproponents of mens rea reform, no one claims that these absurd casesreflect the majority of criminal prosecutions or that federal prisonsare full of defendants who unknowingly purchased a high-flow toilet orsold mislabeled cheese. That is, these critiques might be compelling,but they tell us little about the mine run of criminal cases and fail toaccount for mass incarceration.

We live in a society defined by widespread criminalization, (145)an epidemic of racialized police violence, (146) and an astronomicalpopulation of people caged or under state correctional supervision.(147) Assuming that's a fair characterization of the state ofcriminal law and policy, it is easy to see why critics might viewdiscussions of mens rea reform as missing the point. Against thatbackdrop of staggering state violence, discussions about the

"rule of law" and the proper way of assessing moral blamemight become yet another debate about how many angels can dance on thehead of a pin.

As between the two critiques, I find this one (i.e., that mens reareform is not responsive to the major problems with the criminal system)to be the most compelling. (148) But it is not entirely clear why thiscritique would indicate that mens rea reform is a policy to be opposed,rather than a proposal that should be only one small piece of a larger,more ambitious reform agenda. (149) If the broader criminal justicereform project is one of shifting away from a criminal model of socialcontrol or of addressing social problems, then any reduction in criminallaw or criminalization would appear to be a step in the right direction.(150)

While not expressed by reform opponents, there are two reasons whymis-directed reform (i.e., reform that doesn't get to the coreissues) might be a problem: (1) legitimation; and (2) preemption. First,by purporting to fix the criminal system with a minor, perhapsmisdirected legislative intervention mens rea might legitimate thecriminal system and its outcomes. (151) That is, the message from such"reform" might be that as long as defendants possess theappropriate mental state, whatever happens to them is justified andlegitimate. As a result, mens rea reform might lead to a mistaken beliefthat we should be less worried about prison conditions, collateralconsequences, coercive plea bargains, violent law enforcement, and ahost of other structural defects. (152) This is a fair and importantcritique. But it is worth noting that it actually isn't a part ofthe rhetoric being used by mens rea reform opponents. Instead, thelanguage they've used explicitly embraces punitive or carceralsolutions and the legitimacy of those options. (153) Second, a narrow orincremental reform might preempt or preclude more sweeping change. Toknow how realistic or compelling such a concern is, we would need toknow how much political will for criminal justice reform (particularlyon the right) might be affected by the passage of a mens rea reformstatute. (154) But, it is worth noting that this concern of preemptionor preclusion could be applied (perhaps fairly) to almost anyincremental reform project: the saying goes that "the perfect isthe enemy of the good," but the good also may well be the enemy ofthe perfect.

B. SAVING THE WRONG DEFENDANTS?

The second critique shares some similarities with the firstcritique--namely the view that mens rea reform represents a misdirectionof reformist energy that does not speak to the problems faced by thepoor, people of color, and other marginalized groups that suffer as aresult of mass incarceration. (155) Unlike the first critique, though,this one does make clear why mens rea reform should be opposed: mens reareform is a political project that has nothing to do with massincarceration and everything to do with deregulation. Democrats havetaken to the floor of Congress not to oppose the reforms as too minor oras misdirected, but because they view the proposals as a means ofundercutting existing regulatory frameworks. (156) According toopponents of mens rea reform, the proposals would make it even moredifficult for prosecutors to go after financial crime, environmentalcrime, and other sorts of regulatory violations. (157)

Massachusetts Senator Elizabeth Warren, a leader of the progressivewing of the Democratic Party and a staunch supporter of increasingcorporate regulation to address income inequality, has been one of themost vocal opponents of mens rea reform. Senator Warren has criticizedsuch proposals that would "make it much harder for the governmentto prosecute hundreds of corporate crimes--everything from wire fraud tomislabeling prescription drugs." (158) In 2016, her office prepareda report, Rigged Justice: 2016 How Weak Enforcement Lets CorporateOffenders Off Easy, that criticized the mens rea reform movement andcataloged twenty-five cases in which corporate defendants were not heldaccountable for their misconduct. (159) The report decried"prosecutorial timidity" and stressed that the failure toprosecute corporate crimes vigorously was corrosive to democracy andexacerbated economic inequality. (160) Similarly, it repeatedly madereference to a two-tiered justice system that allowed for prosecution ofless-affluent defendants, but largely shielded the wealthy fromaccountability. (161)

Senator Warren is far from alone in raising these critiques.Illinois Senator Dick Durbin claimed that proposed mens rea reformlegislation "should be called the White Collar Criminal ImmunityAct." (162) In a petition drafted by Occupy the SEC (an offshoot ofOccupy Wall Street, consisting of former financial industry workers),(163) the Criminal Code Improvement Act of 2015 is referred to as"A 'Get Out of Jail Free' Card for white collarcriminals." (164) The petition urges legislators to reject the billbecause it would "make it even more difficult for prosecutors topunish white collar crime," (165) further empowering the architectsof the 2008 financial crisis:

Federal prosecutors already face grave difficulty proving "intent" forcorporate misdeeds because culpable criminal conduct is often hiddendeep within the corporate veil, underneath layers of management,boards and bureaucracy. The Great Recession of 2008 is a tellingexample of federal prosecutors' inability to punish corporatewrongdoing. Malfeasance on Wall Street produced a financial crisisthat extinguished nearly 40% of family wealth from 2007 to 2010,pushing the household net worth back to 1992 levels. Despite theseappalling statistics, not even ONE executive at a major Wall Streetbank was criminally charged for playing a role in the 2008 globalfinancial collapse. Everyday Americans were forced to pay the pricefor rampant speculation, mismanagement and fraud on Wall Street. (166)

In his much-heralded Harvard Law Review article, ThePresident's Role in Advancing Criminal Justice Reform,then-President Obama emphasized the problematic nature of mens reareform proposals that could "undermine public safety and harmprogressive goals." (167)

In this account, there are real criminals that the system isdesigned to reach and on whom prosecutors should be focused. Thosecriminals are the wielders of capital and corporate executives. And,without the tools of broadly written strict liability statutes the statewill be powerless to curb capital's excesses. Criminalization andzealous prosecution might "excite[] public solidarity," (168)playing up the dynamic of the 1% (here, criminals) against the 99%("law-abiding" victims). Such an account certainly isoversimplified, but it reflects the ways in which populist criminaljustice policies and populist economic rhetoric might find common groundin critiques of corporate criminality. (169)

Indeed, as Mark Kelman noted over three decades ago, strictliability crimes are generally designed to target defendants who"control the means of production," and the "defense ofstrict liability crimes is likewise grounded in a political agenda--inan attempt to 'get' harm-causing managers." (170) Viewedthrough this frame, "attack[s] on strict liability [operate] as asimple class-biased, result-oriented defense of corporate managers,those persons most likely to 'unintentionally' harm othersthrough routine business operations." (171) Liability rules incriminal law--as in tort law--are not neutral. They distribute harm,cost, pain, and punishment. (172) So, mens rea reform opponents from the(broadly conceived) political left appear to base their objections on aclaim that the strict liability rules distribute better and that a moveaway from strict liability would simply represent a further upwardredistribution of capital. (173) Assuming there is some proper place forcriminal law and criminal punishment, wealthy, privileged, or powerfuldefendants who harm the less powerful are deserving targets ofprosecution and punishment. (174)

Looking at much of the right-leaning literature onovercriminalization and criminal justice reform, it is hard not to see aderegulatory agenda at work. The laws commonly identified asrepresenting criminal law's excesses often are those relating toadministrative agencies or extending the reach of environmental orfinancial protections. (175) Critiques of criminal law from the rightoften focus on the ways in which criminalization and prosecution hampersefficient market functioning. (176) For example, in his testimony beforethe Congressional Over-Criminalization Task Force, former U.S. Attorneyand Bush-era Attorney General George Terwilliger, III framed the problemof overcriminalization and the need for mens rea reform against thebackdrop of a flawed post-New Deal legal order. (177) According toTerwilliger, the government impinges on:

[T]he freedom of each individual to retain the fruits of his or herlabor and decide how, when, and for what to use those funds. Instead,we have a system of taxation that takes more and more from a few todistribute to many ... The Federal leviathan even reaches into ourdaily life so far as to dictate to us when we awake in the morning,what kind of light bulbs may illuminate our bathroom, and how muchwater can flow through our showerhead ...Over-criminalization is part of this larger picture. Thus, efforts byCongress to get its arms around these issues, such as through thisTask Force, are a most significant step forward ... I believe thefundamental takeaway is this: We have lost sight of the proper use ofFederal criminal law as a carefully applied tool to protect the meansand instrumentalities of commerce, a goal in harmony with theprinciples of federalism and the Framer's intent. (178)

In other words, mens rea reform might operate as a prong of alarger project to scale back progressive regulations and re-orientgovernment with a mission to protect capital at all costs.

Therefore, Democrats, progressives, and other left-leaning criticsof mens rea reform are right to be skeptical of the motives behindright-wing criminal justice reform efforts. (179) But should skepticismequate to opposing policies supported by the right? Part IV addressesthis question by examining the problematic reasons for and potentialsocial costs of a left rejection of mens rea reform.

IV. THE LESSONS OF MENS R.EA REFORM

Ultimately, we might take many lessons from the debates about mensrea reform. Perhaps this legislative debate indicates the limitations ofthe so-called bipartisan consensus on criminal justice reform. Perhapsthe debates are best understood as demonstrating the difficulties ofdevising a one-size-fits-all approach to fixing the federal criminalcode. Or, perhaps the debates indicate the challenge of imaginingreforms in the abstract, rather than tying them to individual,controversial cases. But, in this Part, I argue that there is a moretroubling dynamic at play here.

Rather than an individual, idiosyncratic or sui generis policydebate, the disagreement about mens rea reform illustrates deeper flawsin the politics, discourse, and study of criminal law. (180) In thisPart, I trace three pathologies embodied in the opposition to mens reareform: (1) the reliance on criminal law as a regulatory tool to solveotherwise intractable or knotty social problems; (2) the temptation to"level up" when faced with inequality (i.e., to punish thepowerful party more, rather than to punish the powerless party less);and (3) the impulse to exceptionalize certain areas of the criminalsystem as immune to structural critique or as less deserving of theskepticism that otherwise pervades much left scholarship and politicaldiscourse.

A. REGULATING THROUGH CRIME

First, the opposition to mens rea reform reflects the continuedreliance on criminal law as the regulatory tool of choice. I don'tmean to suggest that Senator Warren and other progressives are wrongthat Republican support for mens rea reform stems from a deregulatoryimpulse. I think they are absolutely right. (181) And, that impulsecertainly is worrying and might well speak to broader reasons to beskeptical about the aims and potential of bipartisan criminal justicereform.' (82) But why should support for regulating corporateactors be synonymous with support for expansive criminal liability? Whyshould federal prosecutors be the state actors tasked with curbing theabuses of capital? And, why should advocates who generally worry aboutsweeping criminal laws support similar laws that target their politicalenemies?

As I have argued elsewhere, progressive reliance on criminalizationmay reflect a story of interest group convergence: (183) activists andpoliticians on the left support some form of regulation and want to seethe state address a given social problem. Activists, politicians, andscholars on the right are skeptical, if not outright hostile, toregulatory projects that they perceive as reflecting a "biggovernment" approach to governance. But, there has long been acarve-out in the right's stated "de-regulatory"commitments: criminalization. Despite the neoliberal hostility togovernment, criminal law is different. (184) Bernard Harcourt describesthis phenomenon as "neoliberal penality." (185) According toHarcourt, since the early 1970s, the deregulatory impulse in theeconomic realm has traveled hand-in-hand with a punitive impulse in thesphere of criminal justice. (186) By the logic of "neoliberalpenality," the state must be good at something--i.e., it must havesome way of justifying its existence in the face of a broader preferencefor shrinking government and regulatory apparatuses. After theneoliberal turn, that "something" is punishment. (I87)

So, in periods of political gridlock, where it might be unthinkablefor activists on the left to obtain Republican support for expanding theregulatory state or the social safety net, all chances for action arenot lost. The left and right converge on a mutually agreeable solutionto social problems: criminalization. (188) This is a dynamic that hasplayed out in many contexts--from gun control, to gender violence andsubordination, to the War on Drugs. (189) Despite the equality orjustice orientation of these interventions, scholars have shown that thepoor, people of color, sexual minorities, and other marginalizedpopulations have borne the brunt of criminal punishment and policeintervention. (190) And, as Derrick Bell has shown, moments of"interest convergence" often may advance the interests of morepowerful actors, rather than the weak, the powerless, or themarginalized. (191)

In the context of gun control, for example, some of the harshestsentencing schemes and least forgiving possession laws receivedbipartisan support (even attracting support from the National RifleAssociation). (192) James Forman, Jr. has recounted how, in WashingtonDC, black activists on the left ultimately acquiesced to a range oftough-on-crime policies to address gun violence. (193) Similarly,Project Exile, a 1990s program in

Richmond Virginia that funneled gun offenders into federal courtwhere they would be subjected to lengthy mandatory minimum sentences,was so popular on both sides of the aisle that Democrats and Republicansfought to take credit for it in the lead up to the 1996 presidentialelection. (194) And, as scholars have shown, Project Exile and similarprovisions have been used disproportionately against defendants ofcolor. (195) That is, in an effort to help predominantly low-incomecommunities of color, a turn to criminal law simply reinscribed theracial hierarchies of mass incarceration. Certainly, it's fair toask whether activists on the left would have preferred heavy civilregulations on gun sellers and manufacturers to this harsh criminalalternative. But what we saw instead was a bipartisan embrace ofcarceral politics.

Similar dynamics have played out in other contexts where criminallaw has become the operative vehicle for addressing structuralinequality. As Jeannie Suk Gersen, Aya Gruber, Janet Halley, and othershave shown, the move by feminist activists and scholars to embrace harshpunitive responses to gender violence has exacerbated troublingdistributional inequities. (196) Rather than empowering women victimizedby gendered subordination, many of these policies (mandatory no-droppolicies, preferences for pretrial detention, etc.) have empoweredprosecutors and further contributed to the hyper-policing andhyper-incarceration of poor people of color and defendants frommarginalized communities. (197) Indeed, faced with the troublingdynamics of police- and prosecutor-driven responses to gender violence,a wave of left activists has pushed for non-criminal alternatives as amodel for protecting victims of intimate partner violence and forresponding to various forms of subordination. (198)

These are only two examples, but the dynamic recurs elsewhere.Sometimes, activists on the left may support criminal solutionsvociferously. (199) Other times, criminal law might be a desired adjunctto other social policies. (200) But, whatever the dynamic, progressives,Democrats, and other voices on the (broadly conceived) left continue torely on criminal law as a vehicle to advance their ends.

This dynamic should trouble critics of mass incarceration andsupporters of left or redistributionist policies. To the extent that thecriminal system is so structurally flawed, why should we trust it toserve left/progressive ends? (201) Across lines of gender, race, class,and sexuality, this critique has been voiced powerfully. (202) Withoutresetting the power dynamics and structures that define the criminalsystem, how can we trust the institutions of criminal law to rightdeeper social wrongs? (203) If we find critiques of the carceral stateand mass incarceration as a means of controlling marginalizedpopulations compelling, how does it make sense to grow thoseinstitutions and task them with serving the interests of the samepopulations that they repeatedly harm? Given the current distributiverealities of criminal law and its enforcement, why should we assume thatmens rea reform would only benefit rich, white defendants (or,conversely, that a strict liability regime would not harm marginalizeddefendants)? (204) Even if we were convinced that strict liabilityserves to redistribute liability in an unjust society, (205) we mustrecognize that the actors enforcing criminal law are the same police,prosecutors, and judges who preside over the deeply unequal and unjustinstitutions of mass incarceration.

All of which is to ask, why should criminal law be the operativevehicle through which to achieve left redistributionist ends? (206) Thisis and was the core insight of the overcriminalization literature, longbefore it became the province of the libertarian right--just becausethere is a problem in need of fixing, it doesn't mean that the fixshould come in the form of another criminal statute or anotherprosecution. (207) Maybe if society could resituate political and socialpower such that prosecutors and lawmakers represented the wishes ofmarginalized populations, then such concerns would be less well-founded.(208) But that would require a massive reorganization of political powerand a massive readjustment of institutional incentives. In the meantime,it's worth asking why or how criminal law might be the rightanswer.

Perhaps, simply, the answer is that criminal law is the most (oronly) feasible regulatory option. Thinking back to the gun controlexample, if scholars and activists view a range of problems as pressingand don't see any other regulatory apparatus as feasible, criminallaw might be the way to address the issue. In her work on corporatecrime, Miriam Baer offers an account of this turn to punishment overnon- (or less-explicitly) punitive regulatory options. (209) Baersuggests not only that there is a baseline political economy story, butalso that punishment enjoys significant psychological and rhetoricaladvantages over "regulation": punishment is easier for thepublic to understand than regulation; punishment offers flexibility tostate actors because it is hard to determine how much punishment issufficient; and punishment is "public" in ways thatregulation, which appears more similar to "private" causes ofaction, is not. (210)

Notably, though, the criminal turn that Baer describes in thecontext of corporate regulation strongly resembles a phenomenon largelynot associated with white-collar crime: "governing throughcrime." (2) " The theory, articulated by Jonathon Simon, restson a similar, but more radical, insight than the one that drivesovercriminalization research: when faced with a problem, the stateidentifies a threat or crisis, and then reacts by criminalizing conductor resorting to state violence. (212) As Simon puts it, "When wegovern through crime, we make crime and the forms of knowledgehistorically associated with it--criminal law, popular crime narrative,and criminology--available outside their limited original subjectdomains as powerful tools with which to interpret and frame all forms ofsocial action as a problem for governance." (213) Viewed throughthis frame, it's easy to see mens rea reform opponents'rhetoric as rooted in the language of fear-of-crime that, in turn,justifies the harshest of remedies: capitalism (or "WallStreet") is out of control and must be reined in to solve thecrisis in U.S. inequality.

Whatever the explanation for the punitive turn, in the mens reareform context, there should be at least three concerns. First andforemost, the fact that there's a problem needn't justify anysolution. Indeed, that line of thinking (i.e., social problems requiresolutions, whatever the cost) has helped drive mass incarceration andhas thrown fuel on the fire of tough-on-crime politics. For "doingsomething" in response to a problem to mean resorting to criminallaw, scholars and activists should consider the costs of that turn.(214) Scholars of the criminal system have shown repeatedly how suchcosts have been disregarded, leading to our current, bloated carceralstate. Just because the politics of mens rea reform look different thanthe politics of three-strikes laws, the War on Drugs, or otheroften-conservative-backed endeavors, this turn to criminal law shouldnot be exempt from a similar critical eye.

Second, it's not at all clear that criminal law is a necessaryor desirable way to address corporate malfeasance or bad conduct byaffluent defendants. In our contemporary criminal system, incarcerationis treated as the default model for or means of punishment--i.e., ifdefendants do something bad, society's response is generally tocage them (or, in some cases to impose another form of state controlwith the threat of incarceration lurking in the background). (215)Therefore, it's reasonable to conclude that the implicit positionof many mens rea reform opponents is that individuals who commitwhite-collar crime (or other crimes currently targeted by reformlegislation) belong in prison. Indeed, Senator Warren's report,Rigged Justice: 2016 How Weak Enforcement Lets Corporate Offenders OffEasy, explicitly invokes incarceration--and the failure toincarcerate--as the stakes of mens rea reform debates. (216) The coverpage of the report, which addresses and critiques mens rea reformproposals, shows the open door to a jail or prison cell. (217) Theimplication is not that white-collar defendants are failing to pay finesor restitution; it is that they have escaped from the cages where theybelong. (218)

In a moment where incarceration as a model is subject to heavycriticism, it's fair to ask why we should be sanguine aboutembracing this narrative of mens rea reform as keeping bad actors out ofprison. (219) I will hold off on addressing this question at lengthuntil Section C, but it is worth asking here why prison and not someother response. (220) That is, if we imagined a different criminal modelwhereby restitution or some other non-carceral punishment were the norm,the conversation might be different. (Indeed, one possible way toexceptionalize white-collar crime from other corners of the criminalsystem is the probability of meaningful non-carceral penalties.) (221)That said, Senator Warren and others on the left clearly embrace thelanguage of incarceration when objecting to mens rea reform efforts.

So, that leaves us with the question of "why prison"? Ifwe turn to the commonly accepted purposes of punishment (rehabilitation,incapacitation, deterrence, and retribution) (222) the answer isn'tobvious. (223) From a rehabilitationist standpoint, U.S. prisons are anabject failure--considering the well-documented instances of abuse inprison and the vast web of collateral consequences that await theformerly incarcerated, it has become extremely difficult to justify asentence in terms of rehabilitation. (224) From an incapacitationistperspective, the issue is whether a defendant must be incarcerated inorder to protect the public from future wrong-doing. Therefore, thequestion becomes whether people or corporate actors that violate strictliability statutes are a danger to the public such that they must beincarcerated to prevent future harm. (225) It is worth noting thatincapacitation is frequently recognized as a driving force in the growthof mass incarceration, (226) and relying on actuarial predictions offuture wrongdoing not only implicates a range of cultural biases (acrossaxes of race, gender, class, etc.), (227) it also invites a default toincarceration when other responses might be sufficient. (228)

Deterrence can be seen as providing one of the best justificationsfor incarcerating white-collar defendants and/or defendants who fallafoul of strict liability statutes. (229) Indeed, Senator Warrenidentifies "deter[ring] future criminal activity" as one ofthe primary reasons to enforce corporate criminal laws. (230) But, theempirical evidence on the efficacy of incarceration's deterrenteffect is questionable. (231) And, it's not clear why prison (asopposed to non-carceral responses, such as large fines orrestorative-justice-inflected remedies) would provide a greaterdeterrent effect. (232) That leaves us with retribution. And maybethat's the best justification for defaulting to prison. Thedefendants whom Senator Warren and other reform opponents identify havedone harm: financial, environmental, or otherwise. But, doesn't ourcurrent moment of mass incarceration show us the costs of responding towrongs in this way? That is, if retribution is compelling here, it iscompelling for the same reason that tough-on-crime politicians andactivists have been able to amp up punishments and grow the criminalcode for the last half century.

Third and finally, opponents of mens rea reform should have toreckon with the reality of a legal framework in which Congress draftssloppy laws and then defers--with courts' blessings--to the powerand judgment of prosecutors. (233) There's a temptation to framemens rea reform debates as arguments between criminal prosecution forcorporate defendants on the one hand and no prosecution on the other.Or, more pointedly, there's a tendency to frame the debates asbetween a world of strict liability for corporate crime on the one hand,and a world without strict liability on the other. To be clear, even ifthose are the aspirations of mens rea reform proponents, no proposedlegislation goes anywhere near that far. The argument is simply whetherCongress should have to specify when it wants a statute to impose strictliability. Rather than criminalization versus decriminalization, thequestion actually comes down to how criminalization occurs. (234) Thatis, even if opponents were to conclude that the benefits ofcriminalization outweighed the costs, that needn't compel aconclusion that any criminal law would be justified.

Given the well-trod critiques of the criminal law and ofprosecutorial discretion, (235) why should Senator Warren and otherpro-criminalization progressives willingly endorse and protect aparticularly problematic criminalization framework? Yes, passing mensrea reform might mean forcing a new set of legislative fights over whatconduct to criminalize, effectively immunizing bad actors in theinterim. But, refusing to go through that process and instead acceptinga status quo in which judges and prosecutors must work together tosmooth over gaps in the law should be concerning to anyone who valuesdefendants' rights or who worries generally about the expansivenature of criminal laws.

B. LEVELLING UP

Not only does the critique of mens rea reform demonstrate theintractability of regulating through crime, it also reflects a troublingimpulse to "level up" or "equalize up." (236) Thatis, when faced with the specter of inequality (wealthy corporatedefendants receiving more protections than poor defendants), opponentsof mens rea reform have made the move to level up punishment andprosecution. (237)

The tendency to "level up" has haunted the literature andactivism of inequality in the criminal law. (238) Most critics of thecriminal system have come to decry its fundamental inequality andexcessive punitiveness. (239)

According to Senator Warren, there are two justice systems--onereserved for the rich, powerful defendant. (240) Relatedly, SashaNatapoff suggests that the criminal legal system operates as a sort ofpyramid--at the top (where affluent defendants reside), due process and"rule of law" are meaningful institutions; at the bottom(where poor defendants are processed via a system of mass misdemeanorsand social control), procedural protections are largely absent ormeaningless. (241) Michelle Alexander argues that the criminal law hascome to resemble mass incarceration as a means of excising black peoplefrom social and political life, (242) and a range of sociologists,criminologists, and legal scholars has tracked the ways in whichpolicing and punishment systematically disadvantage people of color andother socially marginalized groups. (243) Assuming the accuracy of thiscritique, what is the appropriate policy response?

Bryan Stevenson, the founder of the Equal Justice Initiative,famously tells the story of the strangest motion that he ever filed.Representing a black, fourteen-year-old boy faced with a life sentencein Alabama, Stevenson filed a "Motion to Treat My 14 Year-OldClient As a 75 year Old, White, Privileged Corporate Executive."(244) Needless to say, Stevenson lost on the motion. But the argumentspeaks to a deep, dark, and increasingly accepted reality of the U.S.legal system: inequality runs rampant. Despite lofty declarations ofequal rights, equal opportunity, and equal access to justice,"equality" remains illusory. Across every conceivable axis ofpower, distributions of resources, influence, voice, and opportunityremain tremendously skewed. (245) Recognizing inequality, though, neednot compel a specific policy response. (246) Instead, the questionremains how do we react when faced with the harsh reality of inequality?Should the judge have "leveled down" when it came time topunish and treated Stevenson's fourteen-year-old client like therich white man? Or, should the legal system "level up" andtreat rich white men more like poor black children, exposing them to theugly realities of the carceral state?

If the problem is substantive (i.e., the way poor people, people ofcolor, and other marginalized populations are treated in the criminalsystem), then the solution seems as though it might be to treat the poordefendant of color like the rich white defendant. If the problem issimply the formal inequality itself rather than something substantive(i.e., the treatment of disadvantaged or socially marginalizeddefendants), the problem could be solved by equalizing in eitherdirection. (247) Treating the rich white defendant like the poor blackdefendant would solve the problem just as effectively as treating thepoor black defendant like the rich white defendant.

As Aya Gruber puts it:

In recent years, as evidence has amassed of the inherently raciallybiased nature of criminal punishment, even the most liberal lawmakershave found themselves in a state of perpetual cognitive dissonance....[T]hey recognize that criminal prosecution and punishment is about farmore than individual culpability--it is about power, race,socioeconomic status, and other inequalities. At the same time ...they struggle with how or whether this structural objection shouldaffect the prosecution and punishment of guilty individual offenders,particularly violent criminals and rapists. (248)

In other words, "[f]o the extent that the American penal stateis constitutively racist, formal equality efforts to treat minorityvictims fairly by leveling up punishment can end up undermining largersubstantive racial equality in society." (249)

Applying this logic, the instinct to level or equalize up is adangerous one--rather than addressing substantive issues or workingtowards a system in which all are treated well, it legitimates the exactsame abuses that are so objectionable when leveled against themarginalized defendant. This approach superficially fixes the problem ofinequality, but it does nothing to address the substantive andstructural evils faced by the disadvantaged defendant. (250) If theseare fundamental structural problems with prison, police, prosecutorialdiscretion, or even with the deeper social, political, or economicforces that undergird the criminal law, it's not clear how exposingmore people to injustice is the best response. (251)

A discussion of this response falls largely outside the scope ofthis Article, but two objections are worth noting: First, theidentification-based argument for levelling up rests on an empiricalassumption--that forcing people to experience the indignities ofpolicing, prosecution, and punishment would lead those same people tobecome more sympathetic to criminal defendants. I remain skeptical.Borrowing from social cognition theory, legal scholars have argued thatmany policy decisions are shaped by the "fundamental attributionerror"--a tendency to view our own bad conduct as"mistakes" caused by situational factors, while we viewothers' bad conduct as blameworthy and the result of somedispositional flaw. See, e.g., Jon Hanson & David Yosifon, TheSituational Character: A Critical Realist Perspective on the HumanAnimal, 93 GEO. L.J. 1, 25 (2004); Jerry Kang, Trojan Horses of Race,118 HARV. L. REV. 1489, 1565 (2005); Linda Hamilton Krieger, The Contentof Our Categories: A Cognitive Bias Approach to Discrimination and EqualEmployment Opportunity, 47 STAN. L. REV. 1161, 1205 (1995). That is,there is good evidence to suggest that people might still have adifficult time identifying with other defendants. And, similarly,

Bobby Waldrop's prosecution in Alabama serves as a chillingillustration of what an unrestrained "levelling up" solutionto inequality might look like. Waldrop, a white man, was convicted ofthree counts of capital murder in 1998. (252) After trial and asentencing hearing, the jury voted 10-2 in favor of recommending a lifesentence. (253) The trial judge, however, overrode the jury'srecommendation and sentenced Waldrop to death. (254) On the record, thejudge concluded that the aggravating factors outweighed the mitigatingfactors, thus justifying a death sentence. (255) Then, in a hearing toreweigh the factors, the judge stated: "If I had not imposed thedeath sentence, I would have sentenced three black people to death andno white people." (256) In short, the court's reasoning turnedthe logic of death penalty opponents on its head--a concern aboutdramatic racial disparities in the capital context could be addressed bylevelling up, rather than levelling down or confronting the actualracial injustices in the administration of the death penalty.

The Waldrop death sentence (which was affirmed by the EleventhCircuit) (257) also throws Stevenson's "levelling down"motion into stark relief. Both cases were decided by courts in a state(Alabama) with a long history of racial injustice. And, both casesforced judges to confront that legacy of racial injustice and itscontemporary role in the inequality of the criminal system. Yet, theStevenson motion was rejected out of hand. (258) And Stevenson himselfspeaks of the motion as clearly absurd. (259) It's not that judgesand other official actors are blind to racial inequality. It's thatthe recognized means of addressing inequality--at least in the criminalspace--tends to involve levelling up. As Gruber puts it, "Viewingthe 'fear of too much justice' as a fear of leniency indicatesthat legal decisionmakers are often more sanguine about discriminationclaims when they can address them through greater penal severity andwithout color conscious social engineering." (260)

By way of a less dramatic example, Kate Levine has addressed theprocedures available to police officers when they are prosecuted; Levineargues that officers generally receive significantly better treatmentthan non-officer defendants, particularly poor defendants of color.(261) Levine similarly argues that an impulse to level up is a mistake;rather, critics and commentators should view the treatment ofofficer-defendants as a model for other, less privileged or powerfuldefendants. (262) Rather than decrying the power and privilege of adefendant and using that power to justify otherwise unjust or flawedinstitutions, Levine argues, advocates for socially marginalizeddefendants should seek to leverage the treatment of the privilegeddefendant. (263) Instead, the risk is that a reaction to a particularlyunsympathetic defendant leads to a policy change that might harm themajority of (powerless or socially marginalized) defendants. (264)

The critique of mens rea reform appears to operate in this registerof leveling up. The socially marginalized defendant doesn't get thebenefit of the doubt--the argument goes--so why should the CEO? SenatorWarren's Rigged Justice report raises this specter of a two-tieredsystem: "If justice means a prison sentence for a teenager whosteals a car, but it means nothing more than a sideways glance at a CEOwho quietly engineers the theft of billions of dollars, then the promiseof equal justice under the law has turned into a lie." (265) Op-edsand editorials opposing legislative action rely on similar rhetoricsuggesting that mens rea reform would allow wealth and power to shielddefendants deserving of punishment. (266)

Again, my claim is not that inequality based on thedefendant's resources is defensible. Rather, my question is whyshould anyone be treated the way disadvantaged defendants currently are?According to legal historian James Whitman, the defining feature of U.S.criminal justice (as opposed to the practices of France and Germany) isthe treatment of "low status" defendants. (267) InWhitman's account, France, Germany, and many other European nationspursue an egalitarian commitment to "abolishing historicallylow-status treatment." (268) The exceptional harshness of U.S.criminal policy, by contrast, reflects what Whitman describes as acommitment to "degradation"--all offenders should see theirstatus reduced and be degraded by punishment. (269)

Applying this analysis to the mens rea reform debates leads to atroubling observation: it appears that the treatment of"low-status" defendants is being treated as a fixed point byreform opponents. The

"if... " statement in Rigged Justice reads as thoughit's rhetorical, (270) but do Senator Warren and other opponents ofmens rea reform legislation actually view the current treatment ofteenagers in the system as just? (271) For critics of the criminalsystem who view the law as a means of reinforcing and creating deepstructural inequality, (272) the idea that we can make things better byfurther empowering prosecutors, further expanding criminal liability,and further reducing the possible universe of criminal defenses ispuzzling at best and flat-out wrong at worst. (273) Whether a risingtide of criminal justice reform actually would lift all boats andbenefit all defendants is an empirical question, (274) but, is ensuringthat a rich defendant is convicted (on the off chance he is prosecuted)really worth eliminating the possibility that the poor defendant canraise a credible defense? (275) If the answer is "yes," thenwe have a long way to go if the goal is ending mass incarceration anddialing back the punitive state.

Further, and perhaps even more troubling, it is worth noting onceagain that the mens rea reform proposals do not foreclose thepossibility of prosecuting and harshly punishing a range of corporate(or powerful) actors. (276) The proposals simply would require clearerlegislative drafting. (277) Even if this distinction is lesssignificant as a practical matter than a formal matter, it is importantas a means of illustrating just how troubling the level up move can be.Taken on its face, then, the opposition to mens rea reform doesn'trest on a claim that corporate crime should be punished or prosecuted asvigorously as non-white-collar crime. (278) Instead, it rests on a claimthat prosecutors--with judicial assistance--should be able to enjoy themuch-criticized advantages that they enjoy in other corners of thecriminal practice.

One of the greatest concerns in the critical literature and caselaw on the criminal system is that existing rules, politics, andpractices, empower prosecutors to take advantage of broadly draftedstatutes to coerce defendants into plea deals: (279) "where thelegislature drafts broad criminal statutes and then attaches mandatorysentences to those statutes, prosecutors have an unchecked opportunityto overcharge and generate easy pleas, a form of strategic behavior thatexacerbates the structural deficiencies endemic to pleabargaining." (280) Indeed, in her dissent in Yates v. UnitedStates, Justice Elena Kagan effectively endorses this critique andsuggests that it has driven the reasoning of her fellow Justices. (281)According to Justice Kagan, the statutory provision in question, is anexample of "overcriminalization and excessive punishment in theU.S. Code." (282) It is "a bad law--too broad andundifferentiated, with too-high maximum penalties, which giveprosecutors too much leverage and sentencers too much discretion."(283) Opponents of mens rea reform may not have dismissed such concernsoutright, but in their move to level up, they appear to have concludedthat such a dynamic is desirable, or at least necessary, to serveequality-based ends.

C. CARCERAL EXCEPTIONALISM

Finally, the case of mens rea reform speaks to a related and,perhaps, intractable problem: it is much easier to take a stand in favorof decarceration and criminal justice reform when a given defendant doesnot seem so bad or where criminal conduct doesn't seem like such abig deal. It becomes much harder when confronted with the bad defendantor the particularly troubling act. The impulse then becomes one ofmaking exceptions. (284)

Intuitively, this observation may appear straightforward, and theimpulse may be deeply human. But, in this final Section, I will suggestthat this impulse may help explain some of the deepest challenges inachieving sweeping criminal justice reform and also in understandingsome of the ostensible inconsistency in views on the criminalsystem--particularly among scholars and advocates on the left. Thinkingof this phenomenon as carceral exceptionalism (i.e., this defendant isexceptional and therefore deserving of the full force of the carceralstate) (285) may provide a useful lens through which to view the mensrea reform debates.

In a sense, carceral exceptionalism asks us to confront just howsweeping critiques of the criminal system truly are and what critics areworried about when they decry "mass incarceration" (or, forthat matter, "overcriminalization"). Is the problem astructural or phenomenological one about what punishment looks like andhow it operates? (286) Or, is the problem one of calibration, where ourconcern is that the wrong people are being punished and/or that thedefendant deserving of punishment is being punished too much? (287)Elsewhere, I have characterized these two general critical tendencies asthe mass (structural) and over (calibration) approach to criminal lawscholarship and reform. (288)

For many critics on the political left, the language of criminaljustice reform sounds in a mass register via radical discourses ofstructural inequality. (289) But carceral exceptionalism shows that masscritiques often belie over tendencies. Take the case of mens rea reform:liberal, progressive, or left critics articulate a concern about racialand socioeconomic inequality. The system is rigged. The system iscorrupt. And the system preys upon the weak and powerless. But what isthe system? That is, the critique sounds structural or phenomenological.But the proposed solution (or, at least the objection to proposedlegislation) sounds in the discourse of further empowering prosecutorsand the same actors and institutions that have driven massincarceration. As discussed above, to the extent there is somethingfundamentally wrong with those actors and institutions (e.g., theirincentives; their politics; their biases), why should we assume thatthose flaws will evaporate when they are dealing with a bad defendant?(290)

Put simply, carceral exceptionalism rests on the belief not onlythat certain crimes or defendants are exceptional, but also on thebelief that the line between the treatment of exceptional areas and"ordinary" crime can hold. Despite the stated focus ondistributive concerns that drives opposition to mens rea reform and manyother projects of exceptionalism, (291) exceptionalism tends to discountthe distributional realities of strengthening carceral institutions (aswell as the ways in which those institutions are embedded in a broaderweb of unequal social, political, and economic structures). (292) And,to many critics adopting a mass frame, criminal policy is inextricablefrom social welfare policy and distributional decisions central to U.S.political economy; regardless of the distributional goals of a givenprosecutorial project, such forces make it extremely likely that harshercriminal policies inevitably will harm the least powerful members ofsociety. (293) That is, if we adopt the (increasingly common) view thatthe criminal system is inextricable from a deeply flawed brand of socialcontrol, any move to give that system or its actors more power risksexacerbating, or at least further entrenching, those inequalities.

In the context of mens rea reform, the exception is the realm ofwhite-collar crime, where the state failure is one of underenforcementrather than over-enforcement. (294) Thinking back to SenatorWarren's rhetoric and the language of the Occupy the SEC petition,white-collar defendants who might benefit from mens rea reform areframed as the deserving targets of state violence and prosecutorialattention. In other contexts, framing procedural or structuralprotections for defendants as "loopholes" or"technicalities" might be problematic--the province of areactionary, tough-on-crime right. (295) But in this context, leftcritics have embraced the rhetoric and positions of tough-on-crimepoliticians. (296)

Other examples of this phenomenon abound. As discussed above,sexual assault and gender-based violence or sex crimes have remainedareas where scholars and advocates on the left have been vocalproponents of expanding the scope and scale of criminal regulation.(297) Almost twenty years ago, Stuntz observed the exceptionality ofsexual assault:

[C]riminal law's breadth is old news. It has long been a source ofacademic complaint; indeed, it has long been the starting point forvirtually all the scholarship in this field, which (with the importantexception of sexual assault) consistently argues that existingcriminal liability rules are too broad and ought to be narrowed. (298)

Scholars, activists, and politicians who elsewhere decry massincarceration often support amping up criminal law when it comes toaddressing rape. (299) There is a range of explanations for thisexceptional treatment including the historical undereneforcement ofcrimes against women and power imbalances resulting from theinstitutional structures of patriarchal society. (300) But, regardlessof the justification, the logic of exceptionalism remains: thesedefendants are more deserving of punishment than others, and proceduralprotections--rather than critical components of a civil libertarianagenda--are impeding just outcomes.

This tendency to exceptionalize when presented with the specter ofmore privileged defendants persists. In the context of hate crimelegislation, pro-criminalization proponents similarly argue thatprosecutors and the moral or expressive force of criminal law can helpaddress pervasive bigotry and victimization of minority defendants.(301) Likewise, commentators often claim that wealthier orpolitically-connected defendants should receive harsher treatment. (302)Similarly, as discussed above, academics and activists frequently arguethat police defendants should receive fewer procedural protections thanother defendants and/or should be targeted for more aggressiveprosecution. (303) Outside of the mens rea reform context, a range ofscholars and advocates has argued that aggressive prosecutorialapproaches are appropriate in the context of white-collar crime. (304)

To be clear, some expressions of carceral exceptionalism don'trely on a claim that structural issues won't persist in a givencase or context; instead, the claim is that the benefits will outweighthe costs. That is, one need not be an ardent supporter of incarcerationas a solution in order to believe that incarceration is the appropriatefit in a given instance. Nevertheless, while the cost-benefit ordistributional analysis is certainly a better approach than simplydisregarding structural problems, it still raises some troublingquestions and often appears to reflect some problematic assumptions.

In the context of mens rea reform--and elsewhere--the move toexceptionalize requires some sort of comparison or relative calculus.Arguing that a given area is deserving of state violence and theattention of the carceral apparatus while other areas (e.g., drug crime,"nonviolent" crime, etc.) are not requires implicit orexplicit comparative work: this type of conduct must be worse or moresuited to criminal regulation and penalties than those other areas.Perhaps the clearest case of carceral exceptionalism is the treatment of"violent offenders" as it compares to the treatment of"nonviolent offenders." Across the political spectrum, it iscommon to endorse criminal justice reform enthusiastically for"nonviolent offenders," while supporting continued harshtreatment (and even increasing the harsh treatment) of "violentoffenders." (305) Never mind that the majority of peopleincarcerated are serving time for violent crime or that the line between"violent" and "nonviolent" crime may be surprisinglydifficult to draw. (306) The exceptional turn allows for commentators tosupport criminal justice reform vociferously while drawing the line atconduct that sounds "bad," thus perpetuating the myth thatmass incarceration is the result of incarcerating too many"nonviolent drug offenders." (307)

That line drawing exercise and the allure of retrenching on"violent crime" should cause concern when it comes to mens reareform opposition and the desire to make corporate or regulatory crimethe exceptions worthy of harsh treatment. In other words, if mens reareform opponents are claiming that white-collar crime is uniquelydeserving of unrestrained prosecutorial power and expansive statutes,logic would dictate that they are claiming that this area of crime issomehow worse or more harmful than other areas. That might be adefensible position--from a left, redistributionist perspective, thecrimes of capital might be far worse than the crimes of individualsrobbed of choice and opportunity by social inequality; (308)alternatively, as a matter of scale, we might view the harms caused bywidespread environmental degradation or economic manipulation as morewidely shared than the harms caused by most instances of violentinterpersonal conduct. (309)

It's important to recognize, however, that these arguments canbe problematic, (310) particularly when the point of comparison isviolent crime, or, even more so when it's violent crime committedagainst marginalized or powerless defendants. For scholars andcommentators who are comfortable with the current treatment of"violent" offenders, the challenge of proving this comparativepoint might matter little. But, for those seeking change, thesearguments should be worrying. Unless the sorts of regulatory offense atstake here are viewed as worse than "violent crime," it wouldbe difficult to make a case for reducing prosecutorial power andpunitive approaches to violence. (311)

The literature on prison abolitionism speaks of "the dangerousfew," a group of individuals who still might need to be detained orhave their liberty restricted in even the most heavily decarceratedsociety. (312) Even if society were to reject incarceration wholesale,the argument goes, some individuals might continue to pose anintolerable risk. From a radical decarceration or abolitionistperspective, then, embracing the arguments of Senator Warren and othermens rea reform opponents would require accepting that defendants who(perhaps unknowingly) commit economic, environmental, or regulatorycrimes are the true "dangerous few." That may be a defensibleposition, but it's important to recognize how challenging it wouldbe theoretically--and politically--to take this position while arguingfor non-carceral solutions to violent crime or non-carceral treatment ofindividuals with a long history of violent crimes. (313)

None of this is to downplay the challenge of applying thedecarceral approach to situations that seem particularly bad or todefendants who seem particularly unsympathetic. (To be clear, oneexplanation for the prevalence of carceral exceptionalism is aresistance or inability to recognize that much criminal conduct hasthird-party harm.) Rather, it is to say that a truly transformativecriminal justice reform movement will require us to stop makingexceptions. (314) A model of criminal justice reform that only helps thetruly innocent defendants or that strives for decriminalization anddecarceration only for clearly harmless conduct cannot possibly do majorwork in reducing our massive prison populations. (315) Indeed, one ofthe biggest insights of Forman's Pulitzer-Prize-winning book,Locking Up Our Own is to stress that crime (and particularlydrug-related crime) was a serious problem in many black communities atthe dawn of the War on Crime. (316) But, as Forman argues, recognizingthat crime is a problem and that there are real victims--often victimsfrom marginalized communities--does not diminish the lessons of the Waron Drugs and the War on Crime that the social costs of a criminal modelof regulation can be devastating. (317) A comprehensive criminal justicereform agenda will require acknowledging the harms of criminal conductwhile recognizing the problems with using the carceral solutions.

This may be an unwelcome suggestion or it might push further thansome opponents of mens rea reform would want to go: it is notindefensible to oppose some of the worst excesses of the carceral state,but still support some forms of harsh criminal punishment. (318) Indeed,this is a position that appears to be widely shared by many criminaljustice reformers. (319) But, for those who articulate a stronger ormore radical critique--a critique that calls for a reckoning with theway society treats violent crime, or pushes for a broader move away fromcriminal law as a solution--it is important to resist the punitiveimpulse when it is our ox that is being gored.

CONCLUSION

Ultimately, there may be many reasons to be skeptical about mensrea reform legislation and its politics. Nevertheless, as I have argued,opposition to mens rea reform spells trouble for the future of criminaljustice reform. The debates over these legislative proposals raiseimportant questions about the limits of bipartisanship and theinteraction of criminal law with other regulatory enterprises. But, theyshould also force us to confront the continuing lure of criminalpunishment and the belief that more punishment is the way to tacklesocial problems or discipline deviant actors. That siren song has helpedbuild the carceral state. Dismantling it will require resisting thosecalls.

BENJAMIN LEVIN (*)

(*) Associate Professor, University of Colorado Law School. Fortremendously helpful comments and conversations, thanks to Miriam Baer,Shima Baradaran Baughman, Paul Butler, Mike Cahill, Jack Chin, StephenCody, Beth Colgan, Frank Rudy Cooper, Andrew Crespo, Don Dripps, DanFarbman, Thomas Frampton, Trevor Gardner, Erik Gerding, Cynthia Godsoe,Aya Gruber, Eve Hanan, Carissa Byrne Hessick, Sharon Jacobs, Sam Kamin,Anders Kaye, Sarah Krakoff, Alex Kreit, Richard Leo, Kate Levine,Michael Mannheimer, Justin Marceau, Sara Mayeux, Anna Roberts, JennyRoberts, Addie Rolnick, Pierre Schlag, Jocelyn Simonson, ScottSkinner-Thompson, Sloan Speck, David Tanenhaus, Susannah Barton Tobin,Anne Traum, Ahmed White, Jonathan Witmer-Rich, Corey Rayburn Yung. ThisArticle also benefited from presentations and feedback received at theUniversity of Washington School of Law, the UNLV Boyd School of Law, theCrimFest 2018 Conference, and the Tenth Annual South West Criminal LegalScholarship Conference. For exceptional research assistance, thanks toEduardo Ramirez, Jr. as the disadvantaged defendant, rather than usingthe privileged defendant's treatment as a model; and (3) thetemptation for mass incarceration critics to make exceptions and supportharsh treatment for particularly unsympathetic defendants. Ultimately,this Article argues that achieving sweeping and transformative criminaljustice reform will require overcoming the three pathologies.

(1) See, e.g., Eric Holder, Remarks at the National Press Club, 27FED. SENT. R. 297, 299 (2015) ("[l]n the preliminary datawe've seen--and the growing, bipartisan consensus surrounding thework that's underway--they prove unequivocally that criminaljustice reform is an idea whose time has finally come."); Rachel E.Barkow & Mark Osier, Designed to Fail: The President'sDeference to the Department of Justice in Advancing Criminal JusticeReform, 59 WM. & MARY L. REV. 387, 390 (2017) (describing "abipartisan call to reform this state of affairs"); HeatherSchoenfeld, A Research Agenda on Reform: Penal Policy and PoliticsAcross the States, 664 ANNALS AM. ACAD. POL. & Soc. Sci. 155, 162(2016); Alex Altman, Criminal Justice Reform is BecomingWashington's Bipartisan Cause, TIME (Feb. 19, 2015),http://time.com/3714876/criminal-justice-refonn-is-becoming-washingtons-bipartisan-cause [https://perma.cc/ZV42-99BT]. But see Benjamin Levin,The Consensus Myth in Criminal Justice Reform, 117 MICH. L. REV. 259,263, 266-67 (2018) (critiquing the "bipartisan consensus");Douglas A. Berman,

Is It Really True that "Conservatives and Liberals AreIncreasingly United" on Criminal Justice Reform?', SENTENCINGLAW AND POLICY (Aug. 17, 2012),http://sentencing.typepad.com/sentencing_law_and_policy/2012/08/is-it-really-true-that-conservatives-and-liberals-are-increasingly-united-on-criminal-justice-reform.html [https://perma.cc/B7C7-G4BB].

(2) See, e.g., Michael Serota, Proportional Mens Rea and the Futureof Criminal Code Reform, 52 WAKE FOREST L. REV. 1201, 1221 (2017);Honorable Patti B. Saris, A Generational Shift for Federal DrugSentences, 52 AM. CRIM. L. REV. 1, 15 (2015); Jordain Carney, Senatorsto Reintroduce Bipartisan Criminal Justice Bill, THE HILL, Sept. 19,2017, available at Error! Hyperlink reference notvalid.bipartisan-criminal-justice-bill [https://perma.cc/5CTM-E9HF]; LeeRawles, ABA Urges Senate Action on Bipartisan Sentencing Reform Bill,A.B.A. J., Jan. 9, 2018, available athttp://www.abajournal.corn/news/article/aba_urges_action_on_bipartisan_sentencing_reform_bill_before_the_senate [https://perma.cc/CKU2-WBTA].

(3) See, e.g., C.J. Ciaramella, The Senate Will Try Again OnSentencing Reform This Year, REASON (Oct. 4, 2017),http://reason.com/blog/2017/10/04/the-senate-will-try-again-on-sentencing [https://perma.cc/Z5GH-NGFR]; Carl Hulse, Why the Senate Couldn'tPass a Crime Bill Both Parlies Backed, N.Y. TIMES, Sept. 16, 2016, atA8.

(4) See, e.g., Deborah W. Denno, Concocting Criminal Intent, 105GEO. L.J. 323, 378 (2017) (collecting sources); Alexander F. Sarch,Beyond Willful Ignorance, 88 U. COLO. L. REV. 97, 100 (2017) (collectingsources); Alex Sarch, How to Solve the Biggest Issue Holding Up CriminalJustice Reform, POLITICO (May 16, 2016),https://www.politico.com/agenda/story/2016/05/criminal-justice-refom-mens-rea-middle-ground-000120 [https://perma.cc/XR35-DZDH].

(5) See generally Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV.974, 974-75 (1932) (describing the critical role of mens rea in criminallaw).

(6) See, e.g., Staples v. United States, 511 U.S. 600, 606 (1994)(outlining rules of construction that courts might adopt when faced withstatutory silence as to mens rea); William J. Stuntz, The PathologicalPolitics of Criminal Law, 100 MICH. L. REV. 505, 600 n. 276 (2001)(describing the importance of specifying a mental state).

(7) See, e.g., Elizabeth Papp Kamali, Felonia Felonice Facta:Felony and Intentionality in Medieval England, 9 CRIM. L. & PHIL.397, 398-99 (2015); Jeffrey S. Parker, The Economics of Mens Rea, 79 VA.L. REV. 741, 741-42 (1993) ("[M]ens rea plainly dominates in thelegal determination whether an injurious act will be subject to criminalsanctions ...."); Sayre, supra note 5, at 974 ("No problem ofcriminal law is of more fundamental importance or has proved morebaffling through the centuries than the determination of the precisem*ntal element or mens rea."); Kenneth W. Simons, Should the ModelPenal Code's Mens Rea Provisions Be Amended?, 1 OHIO ST. J. CRIM.L. 179, 179 (2003) (identifying the clarification of mental statecategories as the "MPC's greatest achievement").

(8) See, e.g., Pamela H. Buey, Corporate Ethos: A Standard forImposing Corporate Criminal Liability, 75 MINN. L. REV. 1095, 1106(1991); Meir Dan-Cohen, Decision Rules and Conduct Rules: On AcousticSeparation in Criminal Law, 97 HARV. L. REV. 625, 646 (1984); Anne M.Coughlin, Excusing Women, 82 CALIF. L. REV. 1, 22-23 (1994); Sanford H.Kadish, Excusing Crime, 75 CALIF. L. REV. 257, 260-61 (1987); Sanford H.Kadish, Complicity, Cause and Blame: A Study in the Interpretation ofDoctrine, 73 CALIF. L. REV. 323, 349 (1985); Paul H. Robinson & JaneA. Grail, Element Analysis in Defining Criminal Liability: The ModelPenal Code and Beyond, 35 STAN. L. REV. 681, 685-705 (1983); FrancisBowes Sayre, Criminal Responsibility for the Acts of Another, 43 HARV.L. REV. 689, 721 (1930); Kenneth W. Simons, Rethinking Mental States, 72B.U. L. REV. 463, 463(1992).

(9) See, e.g., MOVEMENT FOR BLACK LIVES, Platform, A Vision forBlack Lives, https://policy.m4bl.org/platform'[https://perma.cc/PSM2-K85Y] (outlining the reforms demanded by theMovement for Black Lives).

(10) See, e.g., Mike Debonis, The Issue That Could Keep CongressFrom Passing Criminal Justice Reform, WASH. POST (Jan. 20, 2016),https://www.washingtonpost.com/news/powerpost/wp/2016/01/20/the-issue-that-could-keep-congress-from-passing-criminal-justice-reform/?utm_term=.3592d664b67c [https://perma.cc/N2QD-J6XE] (discussing "a narrow butcrucial issue that has emerged as the main political obstacle to acriminal justice reform bill: to what degree prosecutors must prove adefendant's criminal intent in order to win convictions for certainfederal crimes"); Paul J. Hofer, A Change Election, 29 FED. SENT.R. 69, 71, (2017) (describing mens rea reform proposals as"stumbling blocks for reaching bipartisan legislativeconsensus").

(11) See, e.g., Paul J. Larkin, Jr., Regulation, Prohibition, andOvercriminalization: The Proper and Improper Uses of the Criminal Law,42 HOFSTRA L. REV. 745, 757 (2014); John G. Malcolm, Criminal JusticeReform at the Crossroads, 20 TEX. REV. L. & POL. 249, 272 (2016)("One of the greatest safeguards against overcriminalization-themisuse and overuse of criminal laws and penalties to address societalproblems-is ensuring that there is an adequate mens rea requirement incriminal laws.").

(12) See Carl Takei, From Mass Incarceration to Mass Control, andBack Again: How Bipartisan Criminal Justice Reform May Lead to aFor-Profit Nightmare, 20 U. PA. J.L. & Soc. CHANGE 125, 169 (2017)(collecting sources). Contemporary left critiques of mass incarcerationand the carceral state certainly vary, but they tend to foregroundquestions of distributive justice across various axes of power andmarginalization. See generally MICHELLE ALEXANDER, THE NEW JIM CROW:MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010); JAMES FORMAN,JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA (2017);Lolc WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIALINSECURITY (2009); BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA(2006).

(13) See generally ALEXANDER, supra note 12; MICHAEL W. FLAMM, LAWAND ORDER: STREET CRIME, CIVIL UNREST, AND THE CRISIS OF LIBERALISM INTHE 1960S, 31-50 (2005); Harry A. Chernoff el. al, The Politics ofCrime, 33 HARV. J. ON LEGIS. 527, 527-38 (1996).

(14) See, e.g., LIBBY ADLER, GAY PRIORI: A QUEER CRITICAL LEGALSTUDIES APPROACH TO LAW REFORM (2018); FORMAN, supra note 12; AYAGRUBER, THE FEMINIST WAR ON CRIME (unpublished manuscript) (source onfile with author); NAOMI MURAKAWA, THE FIRST CIVIL RIGHT: How LIBERALSBUILT PRISON AMERICA (2014). Cf. Karen Engle, Anti-Impunity and the Turnto Criminal Law in Human Rights, 100 CORNELL L. REV. 1069, 1127 (2015)(taking "a critical look at the implications of connecting humanrights remedies to criminal law").

(15) Describing the costs of opposing mens rea reform does not meandenying that there might be benefits. Indeed, for some of the leftcritics I discuss, the proper policy determination might rest on such ananalysis of mens rea reform bills and their consequences. Cf. AyaGruber, When Theory Met Practice: Distributional Analysis in CriticalCriminal Law Theorizing, 83 FORDHAM L. REV. 3211 (2015) (describing thisapproach); Prabha Kotiswaran, Born Unto Brothels - Toward A LegalEthnography of Sex Work in an Indian Red-Light Area, 33 LAW & Soc.INQUIRY 579 (2008) (applying a distributional analysis); Jorge L.Esquirol, Legal Latin Americanism, 16 YALE HUM. RTS. & DEV. L.J.145, 161 (2013) (describing distributional analysis as "a popularform of critical analysis by legal progressives in the U.S.").

(16) See JONATHAN SIMON, GOVERNING THROUGH CRIME: How THE WAR ONCRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 17(2007).

(17) See Part III.A., infra.

(18) See Part III.A., infra.

(19) See generally DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITSOF THE CRIMINAL LAW (2008); HARVEY A. SILVERGLATE, THREE FELONIES A DAY:How THE FEDS TARGET THE INNOCENT (2009); Andrew Ashworth, Conceptions ofOvercriminalization, 5 OHIO ST. J. CRIM. L. 407 (2008); Sara Sun Beale,The Many Faces of Overcriminalization: From Morals and Mattress Tags toOverfederalization, 54 AM. U. L. REV. 747 (2005); Jennifer M. Chacon,Overcriminalizing Immigration, 102 J. CRIM. L. & CRIMINOLOGY 613(2012); Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV.703 (2005); William J. Stuntz, O.J. Simpson, Bill Clinton, and theTranssubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001); SanfordH. Kadish, Legal Norm and Discretion in the Police and SentencingProcesses, 75 HARV. L. REV. 904, 909 (1962).

(20) While the term is used frequently, its definition remains apoint of some contention. See generally Levin, supra note 1 (offeringalternate definitions).

(21) See Erik Luna, Prosecutorial Decriminalization, 102 J. CRIM.L. & CRIMINOLOGY 785, 785 (2012) (citing Sanford H. Kadish, LegalNorm and Discretion in the Police and Sentencing Processes, 75 HARV. L.REV. 904, 909 (1962)) ("As far as I can tell, Sanford Kadish coinedthe term "overcriminalization" in a 1962 article in theHarvard Law Review ....").

(22) See generally Levin, supra note 1. Thanks to David Sklanskyfor highlighting this shift over time.

(23) See, e.g., Defining the Problem and Scope ofOver-Criminalization and Over-Federalization: Hearing Before theOver-Criminalization Task Force of 2013 of the H. Comm. on theJudiciary, 113th Cong. (2013); Reining in Overcriminalization: Assessingthe Problem, Proposing Solutions: Hearing Before the Subcomm. on Crime,Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 111thCong. (2010); Over-Criminalization of Conduct/Over-Federalization ofCriminal Law: Hearing Before the Subcomm. on Crime, Terrorism, andHomeland Sec. of the H. Comm. on the Judiciary, 111th Cong. (2009);NAT'L ASSOC. OK CRIMINAL DEFENSE LAWYERS, Overcriminalization,http://www.nacdl.org/overcrim/ [http://perma.cc/ZD64-6ZJ4] (last visitedJul. 6, 2017); THE HERITAGE FOUNDATION, Overcriminalization,http://www.heritage.org/issues/legal/overcriminalization[http://perma.cc/2WVG-NLZX], (last visited June 12, 2018); RIGHT ONCRIME, Overcriminalizationhttp://rightoncrime.com/category/priorityissues/overcriminalization/(last visited June 12, 2018); TEXAS PUBLIC POLICY FOUNDATION,Overcriminalization,http://old.texaspolicy.com/issues/overcriminalization[http://perma.cc/P4DX-PP6C] (last visited July 6, 2017); Task Force onOvercriminalization, ABA,http://www.americanbar.org/groups/litigation/initiatives/overcriminalization.html [http://perma.cc/P5DY-9BWK] (last visited July 6, 2017).

(24) See, e.g., Stephen F. Smith, Overcoming Overcriminalization,102 J. CRIM. L. & CRIMINOLOGY 537, 574 (2012) (describing the needfor mens rea reform as a means of countering overcriminalization and"overzealousness of federal prosecutors"); Shon Hopwood,Clarity in Criminal Law, 54 AM. CRIM. L. REV. 695, 699 (2017); DavidThaw, Criminalizing Hacking, Not Dating: Reconstructing the CFAA IntentRequirement, 103 J. CRIM. L. & CRIMINOLOGY 907, 945 (2013); JohnVillasenor, Over-Criminalization and Mens Rea Reform: A Primer,BROOKINGS: FLXGOV BLOG (Dec. 22, 2015),http://www.brookings.edu/blogs/fixgov/posts/2015/12/22-mens-rea-reform-villasenor [http://perma.cc/PM44-9TRE].

(25) See Herbert L. Packer, Mens Rea and the Supreme Court, 1962SUP. CT. REV. 107, 109 ("[T]o punish conduct without reference tothe actor's state of mind is both inefficacious and unjust.").

(26) Press Release, U.S. Senator Orrin Hatch, Senators Hatch, Lee,Cruz, Perdue, and Paul Introduce Bill to Strengthen Criminal IntentProtections (Oct. 2, 2017), https://www.lee.senate.gov/public/index.cfm/2017/10/senators-hatch-lee-cruz-perdue-and-paul-introduce-bill-to-strength-criminal-intent-protections[http://perma.cc/3AUP-TWDE].

(27) See Smith, supra note 24, at 568.

(28) Id.

(29) Malcolm, supra note 11, at 272.

(30) Mens Rea: The Need for a Meaningful Intent Requirement inFederal Criminal Law: Hearing Before the Over-Criminalization Task Forceof the H. Comm. on the Judiciary, 113th Cong. (2013), at 3.

(31) See, e.g., Darryl K. Brown, Prosecutors andOvercriminalization: Thoughts on Political Dynamics and A DoctrinalResponse, 6 OHIO ST. J. CRIM. L. 453, 453 (2009) ("We knowprosecutors take advantage of overcriminalization."); Lisa KernGriffin, Compelled Cooperation and the New Corporate Criminal Procedure,82 N.Y.U. L. REV. 311, 382 (2007) (collecting sources); AlexandraNatapoff, Misdemeanors, 85 S. CALIF. L. REV. 1313, 1354 (2012)(describing the "'overcriminalization' framework" as"a diverse body of work that explains how the substantive criminallaw has ceded its power over outcomes to police and prosecutorialdiscretion"); Ellen S. Podgor, Overcriminalization: The Politics ofCrime, 54 AM. U. L. REV. 541, 542 (2005) ("[0]vercriminalizationcan be a function of both increased legislation and also the applicationof existing legislation through prosecutorial discretion ....");Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L.REV. 671, 679 (2014) (describing the "vast literature" that"addresses prosecutorial discretion and the related problem ofovercriminalization").

(32) BRIAN W. WALSH & TIFFANY M. JOSLYN, WITHOUT INTENT: HowCONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT IN FEDERAL LAW 29(2010).

(33) See, e.g., C. Jarrett Dieterle, The Lacey Act: A Case Study inthe Mechanics of Overcriminalization, 102 GEO. L.J. 1279, 1305 (2014);RIGHT ON CRIME, Overcrimina lization,http://rightoncrime.com/category/priorityissues/overcriminalization/[http://perma.c c/3MEZ-55FF] (last visited June 12, 2018) (identifying"[e]nsur[ing] that an appropriate culpable mental state is includedin the elements of all offenses" as a "conservativesolution" to overcriminalization); Press Release, U.S. SenatorOrrin Hatch, Senators Hatch, Lee, Cruz, Perdue, and Paul Introduce Billto Strengthen Criminal Intent Protections (Oct. 2, 2017)https://www.lee.senate.gov/public/index.cfm/2017/10/senators-hatch-lee-cruz-perdue-and-paul-introduce-bill-to-strength-criminal-intent-protections [http://perma.cc/T5NT-UKGN] ("Rampant and unfairovercriminalization in America calls for criminal justice reform, whichstarts with default mens rea legislation.").

(34) See, e.g., Paul H. Robinson & Michael T. Cahill, TheAccelerating Degradation of American Criminal Codes, 56 HASTINGS L.J.633, 634 (2005) ("[I]t has become clear that most legislatures nolonger use their criminal law codification power to promote broad anduseful change, but have become 'offense factories' churningout more and more narrow, unnecessary, and often counterproductive newoffenses.").

(35) The question of a proper baseline haunts discussions ofovercriminalization and criminal policy, generally--without an agreementon the proper scope of criminal law and criminal punishment, critiquesof too much criminal law tend to assume what they set out to prove andfail to provide a normative framework against which to weighcriminalization efforts. See, e.g., JOHN F. PFAFF, LOCKED IN: THE TRUECAUSES OF MASS INCARCERATION AND HOW TO ACHIEVE REAL REFORM 8 (2017)("Part of the problem is that no one has provided a metric fordetermining how many people in prison is "too many"...."); Bernard E. Harcourt, The Collapse of the Harm Principle, 90J. CRIM. L. & CRIMINOLOGY 109, 193-94 (1999) (arguing that anattempt to use the harm principle to restrict the scope of criminal lawwill fail because of the principle's indeterminacy); Smith, supranote 24, at 538 ("It is, of course, difficult to make such claimswithout a normative baseline--an idea of what constitutes the'right' number of criminal laws--and such a baseline iselusive at best.").

(36) See generally Part III, infra.

(37) This critique might be applied more generally to reformefforts that foreground wrongful convictions and innocent defendants.See generally Carol S. Steiker & Jordan M. Steiker, The Seduction ofInnocence: The Attraction and Limitations of the Focus on Innocence inCapital Punishment Law and Advocacy, 95 J. CRIM. L. & CRIMINOLOGY587 (2005).

(38) See, e.g., MARKUS DIRK DUBBER, VICTIMS IN THE WAR ON CRIME:THE USE AND ABUSE OF VICTIMS' RIGHTS (2002); Susan L. Pilcher,Ignorance, Discretion and the Fairness of Notice: Confronting"Apparent Innocence" in the Criminal Law, 33 AM. CRIM. L. REV.1,34(1995).

(39) See, e.g., Sara Sun Beale, The Many Faces ofOvercriminalization: From Morals and Mattress Tags toOverfederalization, 54 AM. U. L. REV. 747, 749 (2005); Green, supra note39; Kimberly Thomas, Interpersonal Power in the Criminal System, 50 AM.CRIM. L. REV. 247,276(2013).

(40) See, e.g., Kip Schlegel, et al., Are White-Collar CrimesOvercriminalized? Some Evidence on the Use of Criminal Sanctions AgainstSecurities Violators, 28 W. ST. U. L. REV. 117, 120 (2001)("[O]vercriminalization represents the imposition of a criminalsanction more frequently than merited given other social controlresponses that are available ....").

(41) See, e.g., R.A. Duff, Strict Liability, Legal Presumptions,and the Presumption of Innocence, in APPRAISING STRICT LIABILITY 125(A.P. Simester, ed., 2005); Catherine L. Carpenter, On Statutory Rape,Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L.REV. 313, 314 (2003); Gary V. Dubin, Mens Rea Reconsidered: A Plea for ADue Process Concept of Criminal Responsibility, 18 STAN. L. REV. 322,324 (1966); George P. Fletcher, The Fall and Rise of Criminal Theory, 1BUFF. CRIM. L. REV. 275, 280 (1998) (describing the relationship betweentheories of strict liability in tort and criminal law); Aziz Z. Huq& Genevieve Lakier, Apparent Fault, 131 HARV. L. REV. 1525, 1534(2018); Mark Kelman, Interpretive Construction in the SubstantiveCriminal Law, 33 STAN. L. REV. 591 (1981); Laurie L. Levenson, GoodFaith Defenses: Reshaping Strict Liability Crimes, 78 CORNELL L. REV.401, 402 (1993) ("For years, courts and commentators have straggledwith the criminal strict liability doctrine."); Stephen J. Morse,The Moral Metaphysics of Causation and Results, 88 CALIF. L. REV. 879,879 (2000) ("[V]irtually all criminal law theorists agree thatmoral fault is at least a necessary condition of blame andpunishment...."); Francis Bowes Sayre, Public Welfare Offenses, 33COLUM. L. REV. 55, 62 (1933); Amy J. Sepinwall, Faultless Guilt: TowardA Relationship-Based Account of Criminal Liability, 54 AM. CRIM. L. REV.521, 522 (2017).

(42) Richard A. Wasserstrom, Strict Liability in the Criminal Law,12 STAN. L. REV. 731, 731 n.l (1960).

(43) Id. at 731 (internal citations omitted).

(44) Levenson, supra note 41, at 402; see also Fowler v. Padget, 7T.R. 509, 514 (K.B. 1798) ("[I]t is a principle of natural justice,and of our law, that actus non facit reum nisi mens sit rea. The intentand the Act must both concur to constitute the crime ....").

(45) See Kenneth W. Simons, When Is Strict Criminal LiabilityJust?, 87 J. CRIM. L. & CRIMINOLOGY 1075, 1075-76 (1997) ("Themost vigorous condemnation of strict liability in criminal law comesfrom retributivists, not from utilitarians. Strict liability appears tobe a straightforward case of punishing the blameless, an approach thatmight have consequential benefits but is unfair on any retrospectivetheory of just deserts.").

(46) See Morissette v. United States, 342 U.S. 246, 254, n.14(1952) ("Consequences of a general abolition of intent as aningredient of serious crimes have aroused the concern of responsible anddisinterested students of penology.").

(47) See, e.g., Ratzlaf v. United States, 510 U.S. 135, 153-54(1994) (Blackmun, J., dissenting); Liparota v. United States, 471 U.S.419 (1985); Darryl K. Brown, Criminal Law Reform and the Persistence ofStrict Liability, 62 DUKE L.J. 285, 293 (2012); John Shepard Wiley Jr.,Not Guilty by Reason of Blamelessness: Culpability in Federal CriminalInterpretation, 85 VA. L. REV. 1021, 1026 (1999).

(48) See, e.g., United States v. Int'l Minerals & Chem.Corp., 402 U.S. 558, 565 (1971) (Stewart, J., dissenting) ("Thiscase stirs large questions--questions that go to the moral foundationsof the criminal law. Whether postulated as a problem of 'mensrea,' of 'willfulness,' of 'criminalresponsibility,' or of 'scienter,' the infliction ofcriminal punishment upon the unaware has long troubled the fairadministration of justice."); H.L.A. HART, PUNISHMENT ANDRESPONSIBILITY 152 (1968) ("The reason why, according to modernideas, strict liability is odious, and appears as a sacrifice of avalued principle ... is that those whom we punish should have had, whenthey acted, the normal capacities ... for doing what the law requiresand abstaining from what it forbids ....").

(49) See, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422,442-43 (1978); Paul J. Larkin, Jr., Strict Liability Offenses,Incarceration, and the Cruel and Unusual Punishments Clause, 37 HARV.J.L. & PUB. POL'Y 1065, 1088 (2014) ("The criticism thatstrict liability offenses provide inadequate notice of criminal conductis a particularly cogent one today. Use of the criminal justice systemto enforce federal regulatory programs is heavily freighted withproblems that do not arise when the only penalties at stake areadministrative or civil.").

(50) See MARKUS DIRK DUBBER, THE POLICE POWER: PATRIARCHY AND THEFOUNDATIONS OF AMERICAN GOVERNMENT 147-53 (2005) (describing theCourt's handling of so-called "public welfare" offenses).

(51) 258 U.S. 250(1922).

(52) 258 U.S. 280(1922).

(53) Id. at 285-87.

(54) See id.

(55) See Balint, 258 U.S. at 251.

(56) See id.

(57) Behrman, 258 U.S. at 288.

(58) See Balint, 258 U.S. at 253-54.

(59) Id. at 254.

(60) 320 U.S. 277(1943).

(61) Id. at 278.

(62) See id.

(63) Id. at 280-81.

(64) See generally Part IV. A.

(65) 342 U.S. 246,263(1952).

(66) Id at 247-48.

(67) See id at 248.

(68) See id

(69) Id at 272-73.

(70) Id at 254-56.

(71) See id. at 254-56, 261-62.

(72) Id at 260.

(73) See, e.g., Hughey v. United States, 495 U.S. 411, 422 (1990)(describing "longstanding principles of lenity, which demandresolution of ambiguities in criminal statutes in favor of thedefendant"); Rewis v. United States, 401 U.S. 808, 812 (1971)("[A]mbiguity concerning the ambit of criminal statutes should beresolved in favor of lenity."); Aziz Z. Huq & Genevieve Lakier,The Triumph of Fault in Public Law, 131 HARV. L. REV. (forthcoming2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940016[http://perma.cc/4KBT-K97P]; John Calvin Jeffries, Jr., Legality,Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189,198 (1985); Joseph E. Kennedy, Making the Crime Fit the Punishment, 51EMORY L.J. 753, 755 (2002) (proposing "clear statement" rulesfor criminal statutes).

(74) United States v. Bass, 404 U.S. 336, 347-48 (1971).

(75) Id. (internal quotation omitted).

(76) But see generally Brown, supra note 47 (tracking resistance tochecks on strict liability).

(77) See, e.g., Dowling v. United States, 473 U.S. 207, 229 (1985)("Invoking the 'time-honored interpretive guideline' that'ambiguity concerning the ambit of criminal statutes should beresolved in favor of lenity' ...."); Bass, 404 U.S. at 347-48;Bell v. United States, 349 U.S. 81, 83 (1955) ("When Congressleaves to the Judiciary the task of imputing to Congress an undeclaredwill, the ambiguity should be resolved in favor of lenity.");William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137U. PA. L. REV. 1007, 1029 (1989) ("The rule of lenity rests uponthe due process value that government should not punish people who haveno reasonable notice that their activities are criminally culpable, aswell as the separation-of-powers value that prosecutors and courtsshould be unusually cautious in expanding upon legislative prohibitionswhere the penalty is severe.").

(78) See. e.g., Johnson v. United States, 135 S. Ct. 2551, 2566(2015); City of Chi. v. Morales, 527 U.S. 41, 56 (1999); Connally v.Gen. Const. Co., 269 U.S. 385, 391 (1926) ("[A] statute whicheither forbids or requires the doing of an act in terms so vague thatmen of common intelligence must necessarily guess at its meaning anddiffer as to its application violates the first essential of due processof law."); Carissa Byrne Hessick, Vagueness Principles, 48 ARIZ.ST. L.J. 1137, 1138 (2016).

(19) See, e.g., infra notes 281-283, and accompanying text; Yatesv. United States, 135 S. Ct. 1074 (2015); Johnson v. United States, 135S. Ct. 2551 (2015); Bond v. United States, 134 S. Ct. 2077 (2014);Carissa Byrne Hessick, Johnson v. United States and the Future of theVoid-for-Vagueness Doctrine, 10 N.Y.U. J.L. & LIBERTY 152 (2016)(discussing evolutions in the theory and application of vagueness).

(80) For a helpful discussion of two recent unsuccessful bills andtheir possible application, see RICHARD M. THOMPSON II, CONGRESSIONALRESEARCH SERVICE, MENS REA REFORM: A BRIEF OVERVIEW (Apr. 14, 2016).

(81) See, e.g., Mens Rea Reform Act of 2015, S. 2289, 114th Cong.(2015) ("If a state of mind is not specified for an element of theoffense, it must be shown that the defendant acted willfully.");Criminal Code Improvement Act of 2015, H.R. 4002, 114th Cong. (2015)("A conviction for such federal criminal offense requires proofthat a defendant acted knowingly.").

(82) See H.R. 4002, supra note 81 ("[I]f the offense consistsof conduct that a reasonable person in the same or similar circ*mstanceswould not know, or would not have reason to believe, was unlawful, theGovernment must prove that the defendant knew, or had reason to believe,the conduct was unlawful.").

(83) See, e.g., Mens Rea Reform Act of 2017, S. 1902, 115th Cong.(2017); Stopping Over-Criminalization Act of 2015, H.R. 3401, 114thCong. (2015); H.R. 4002; S. 2289.

(84) See, e.g., Staples v. United States, 511 U.S. 600, 605 (1994)(discussing competing approaches to interpreting silence with respect tomental states); Morissette v. United States, 342 U.S. 246, 262 (1952)(same); State v. Al-Naseer, 734 N.W.2d 679, 684 (Minn. 2007) (addressingstatutory silence in a vehicular homicide case); Garnett v. State, 632A.2d 797, 802 (Md. 1993) (addressing a rape statute without a clear mensrea provision); State v.

Audette, 543 A.2d 1315, 1317 (Vt. 1988) (addressing statutorysilence). See generally Catherine L. Carpenter, supra note 41, at 358(discussing historical approaches to legislative silence regardingmental state requirements).

(85) See generally supra note 84.

(86) See Staples, 511 U.S. at 605.

(87) Mens Rea Reform Act of 2017, 115 S. 1902.

(88) Cf. Guyora Binder, Felony Murder and Mens Rea Default Rules: AStudy in Statutory Interpretation, 4 BUFF. CRIM. L. REV. 399, 437-38(2000) (explaining approaches to interpreting legislative silence as tomens rea).

(89) See, e.g., S. 2289; H.R. 4002.

(90) Staples, 511 U.S. at 602.

(91) Id.

(92) Id. at 603-04.

(93) Id. at 602.

(94) Id.

(95) See generally id.

(96) See generally id.

(97) Such concerns also might apply to the criminalization ofnegligent conduct. Michael T. Cahill, Attempt by Omission, 94 IOWA L.REV. 1207, 1242 (2009) ("[U]sing criminal law to punish merenegligence ... runs the risk of blurring the tort-crime distinction andreducing the moral authority of criminal law ... ").

(98) See Thompson, supra note 80, at 1 ("Supplementing thestatutory text, the Supreme Court has developed a set of presumptions toapply when a mens rea term is omitted. However, the Court has appliedthese rules in a somewhat ad hoc fashion depending on a variety offactors ... ").

(99) Staples, 511 U.S. at 619.

(100) See MODEL PENAL CODE [section] 2.03 (1985).

(101) Id.

(102) Stuntz, supra note 6, at 600 n.276. Significantly, though,Stuntz notes that--as of 2001--only half of the states that had adoptedthe MPC's "culpability structure" also had adopted adefault mental state requirement of recklessness. Id.

(103) Simons, supra note 7, at 188.

(104) See Aya Gruber, A Distributive Theory of Criminal Law, 52 WM.& MARY L. REV. 1, 48-49 (2010) ("The federal sentencingguideline revolution in the 1980s was perhaps the single most importantdevelopment signaling the rise of harm and the decline of culpability inpenal law.").

(105) See generally Dan M. Kahan, Ignorance of Law Is an Excuse-butOnly for the Virtuous, 96 MICH. L. REV. 127 (1997) (discussing thegeneral absence of an excuse for unknowingly breaking the law). But seeSharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theoryof Excusable Ignorance, 48 DUKE L.J. 341, 344-45 (1998) (catalogingstatutes that courts have interpreted as requiring knowledge of theconduct's illegality).

(106) 507 N.E.2d 1068 (N.Y. 1987).

(107) Id. at 1069.

(108) Id

(109) Id

(110) Id. at 1070.

(111) See id. at 1073.

(112) Cf. Samuel W. Buell, Culpability and Modern Crime, 103 GEO.L.J. 547, 593 (2015) (critiquing an expansive notice requirement thatwould allow defendants to raise a defense if they did not know that thespecific conduct they engaged in was criminal).

(113) See, e.g., Gabriel J. Chin et al., The Mistake of Law Defenseand an Unconstitutional Provision of the Model Penal Code, 93 N.C. L.REV. 139, 144 (2014); David De Gregorio, People v. Marrero and Mistakeof Law, 54 BROOK. L. REV. 229, 243 (1988).

(114) See, e.g., Villasenor, supra note 24.

(115) See, e.g., Chin, et al., supra note 113, at 145; Susan L.Pilcher, Ignorance, Discretion and the Fairness of Notice: Confronting"Apparent Innocence" in the Criminal Law, 33 AM. CRIM. L. REV.1, 5 (1995) ("We live in an era of rapidly expanding criminalliability, in which conduct never before within the reach of thecriminal justice system is regulated. Substantive expansions ofliability vastly increase the potential for dissonance between law andcommunity expectations.").

(116) See Paul J. Larkin, Jr, Public Choice Theory andOvercriminalization, 36 HARV. J.L. &PUB. POL'Y 715, 778(2013).

(117) See Levin, supra note 1, at 300-01. But see John G. Malcolm,Morally Innocent, Legally Guilty: The Case for Mens Rea Reform, 18FEDERALIST SOC'Y REV. 40 (2017) ("While some critics arguethat mens rea reform would only benefit wealthy corporations and theirexecutives who flout environmental and other health and safetyregulations, the truth is that such corporations and their high-rankingexecutives are able to hire lawyers to navigate complex regulations andavoid prosecution, while individuals and small businesses lack the time,money, and expertise to avoid accidentally violating obscurerules.").

(118) United States v. Park, 421 U.S. 658, 672 (1975) ("Therequirements of foresight and vigilance imposed on responsible corporateagents are beyond question demanding, and perhaps onerous, but they areno more stringent than the public has a right to expect of those whovoluntarily assume positions of authority in business enterprises whoseservices and products affect the health and well-being of the publicthat supports them."); see also Kelman, supra note 41, at 605-06.

(119) See Criminal Code Improvement Act of 2015, H.R. 4002, 114thCongr. (2015) ("[I]f the offense consists of conduct that areasonable person in the same or similar circ*mstances would not know,or would not have reason to believe, was unlawful, the Government mustprove that the defendant knew, or had reason to believe, the conduct wasunlawful.").

(120) Stopping Over-Criminalization Act of 2015, 114 H.R. 3401[section] 28(b).

(121) See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 234(2002); Osborne v. Ohio, 495 U.S. 103, 115 (1990); United States v.X-Citement Video, Inc., 982 F.2d 1285, 1286 (9th Cir. 1992), rev'd,513 U.S. 64 (1994); WAYNE R. LAFAVE, CRIMINAL LAW 110-11 (5th ed. 2010).

(122) See, e.g., Smith v. California, 361 U.S. 147, 153-55 (1959);United States v. Posters 'N' Things Ltd., 969 F.2d 652, 657(8th Cir. 1992); State v. Luedtke, 863 N.W.2d 592, 598 (Wis. 2015);Burns v. State, 512 S.W.2d 928, 933 (Ark. 1974); People v. Finkelstein,174 N.E.2d470,471 (N.Y. 1961).

(123) See, e.g., People v. Olsen, 685 P.2d 52, 55 (Cal. 1984)(quoting People v. Lopez, 271 Cal. App. 2d 754, 760-61 (1969) ("[A]mistake of fact relating only to the gravity of an offense will notshield a deliberate offender from the full consequences of the wrongactually committed."); Garnett v. State, 632 A.2d 797, 802 (Md.1993) ("Statutory rape laws are often justified on the 'lesserlegal wrong' theory or the 'moral wrong' theory...."); Sanford H. Kadish, Codifiers of the Criminal Law:Wechsler's Predecessors, 78 COLUM. L. REV. 1098, 1119 n. 167 (1978)(describing the "lesser crime principle").

(124) See Levin, supra note 1, at 299.

(125) See Michael L. Rich, Lessons of Disloyalty in the World ofCriminal Informants. 49 AM. CRIM. L. REV. 1493, 1527 n.234 (2012)(collecting sources).

(126) See generally Benjamin Levin, American Gangsters: RICO,Criminal Syndicates, and Conspiracy Law as Market Control, 48 HARV.C.R.-C.L. L. REV. 105, 154-57 (2013).

(127) That is, unless we adopt a "natural law" framework,each and every criminal law--from the most venal to the mostvenial--criminalizes "otherwise innocent conduct."

(128) Press Release, Senators Hatch, Lee, Cruz, Perdue, and PaulIntroduce Bill to Strength Criminal Intent Protections (Oct. 7, 2017),https://www.lee.senate.gov/public/index.cfm/2017/10/senators-hatch-lee-cruz-perdue-and-paul-introduce-bill-to-strength-criminal-intent-protections [http://perma.cc/VS7S-EPDG] (emphasis added).

(129) Cf. IAN HANEY LOPEZ, DOG WHISTLE POLITICS: How CODED RACIALAPPEALS HAVE REINVENTED RACISM AND WRECKED THE MIDDLE CLASS 178-79(2014) (discussing the way "hard-working Americans" was usedrhetorically to describe the white working class in opposition to black"welfare queens").

(130) Stuntz, supra note 6, at 509. Indeed, such a class-basedrhetoric permeates discussion of white-collar crime. In defining theterm, sociologist Edwin Sutherland wrote of criminal conduct in theclass "composed of respectable or at least respected business andprofessional men." Edwin H. Sutherland, White-Collar Criminality, 5AM. Soc. REV. 1, 1 (1940); see also BRANDON L. GARRETT, Too BIG TO JAIL:How PROSECUTORS COMPROMISE WITH CORPORATIONS 87-88 (2014); JAMES Q.WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDEBETWEEN AMERICA AND EUROPE 47 (2003); Wayne A. Logan, Criminal LawSanctuaries, 38 HARV. C.R.-C.L. L. REV. 321, 321-91 (2003) (collectingsources).

(131) See. e.g.. FORMAN, supra note 12, at 221 (describing thecultural hostility to "violent criminals" as a populationdistinct from "nonviolent criminals"); Jody Armour, nigg*Theory: Contingency, Irony, and Solidarity in the Substantive CriminalLaw, 12 OHIO ST. J. CRIM. L. 9, 9-10 (2014) (arguing that legal cultureinscribes a racialized dichotomy between "criminals" and therest of society); Erin R. Collins, Status Courts, 105 GEO. L.J. 1481,1522 (2017) (describing the ways in which status courts complicate thetraditional "othering effect" of criminal process andpunishment); Stephen Herbert, Policing the Contemporary City: BrokenWindows or Shoring up Neo-liberalism?, 4 THEORETICAL CRIMINOLOGY 445,458 (2001) ("Broken windows reinforces an 'othering' ofthe criminal population that allows state actors to justify being toughon crime, and that fuels stratospheric rates of incarceration.");Jocelyn Simonson, The Place of "the People" in CriminalProcedure 119 COLUM. L. REV. 249, 270-71 (examining the ways in whichconstitutional criminal procedure treats criminal defendants aseffectively banished from the polity).

(132) See Part IV.C., infra.

(133) Perhaps a stronger version of this argument is that the mensrea reform provisions would be difficult to apply or fail to specifyjust how the criminal code should be modified. See, e.g., Editorial,Don't Change the Legal Rule on Intent, N.Y. TIMES, Dec. 5, 2015, atSR8 ("This confusing standard would create endless litigation asthe government and defendants argued over how, exactly, to meet it ineach new case."). That said, if the argument is simply thatit's hard to imagine how a prosecutor could prove recklessness,knowledge, or intent, then it's not clear how much such an argumentwould differ from a general claim that mental state requirements are tooexacting or are imprecise. From "beyond a reasonable doubt" tothe painstaking mental state definitions laid out in the MPC, criminallaw leaves a great deal of interpretive wiggle room to lawyers, judges,and juries. Maybe the corporate context makes this interpretive exerciseeven more difficult. But the argument about "confusingstandards" appears out of touch with a legal system that reliesheavily on similarly confusing and indeterminate definitions, standards,and requirements.

(134) See Levin, supra note 1, at 301-02.

(135) There certainly are other objections to mens rea reform.Indeed, many Republicans and critics on the right generally opposeefforts at criminal justice reform or shrinking the size of the criminalsystem. But, in this Article, I do not address those critiques. Ofcourse, people who think that the system is functioning properly or istoo lenient will not be enthusiastic about or supportive of proposalsdesigned to shrink the system. But my concern here is with scholars,activists, and politicians who have expressed concern about massincarceration or who have cloaked themselves in reformist language. Froma reformist perspective, opponents also might worry about mens reareform functioning as a "Trojan Horse" for conservatives andlibertarians seeking to dismantle the welfare state. See Takei, supranote 12, at 169. This critique is closely related to the concern aboutmens rea reform reaching the wrong defendants, but it might also speakto a broader political concern about the legitimation of otherwiseobjectionable political positions or the de-radicalization of reformistgoals or values. Cf. MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THELOCKDOWN OF AMERICAN POLITICS 258-82 (2014) (critiquing the role of asmall-government right in criminal policy reform). Alternatively, leftreformists might worry that by embracing a conservative reform designedto reach white-collar crime, they might play into a false narrative that"criminal justice reform had been achieved," thus stymyingfuture reforms. See generally Levin, supra note 1.

(136) See Barkow & Osier, supra note 1, at 422 ("Notably,the mens rea reform provision had its own bipartisan support in theHouse, and most criminal law scholars and professional bar associationshave lamented for years that strict liability laws have no place in thecriminal sphere.").

(137) This is similar to my point in Part I that trulyunderstanding and solving the problem of "overcriminalization"would require a baseline agreement or understanding of what wouldconstitute an appropriate amount of criminalization. See supra notes35-40, and accompanying text.

(138) See generally Levin, supra note 1.

(139) Cf. David Garland, Introduction; The Meaning of MassImprisonment, in MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 1,5-6 (David Garland ed., 2001) (defining "mass imprisonment" interms of racialized social control); Kimberle W. Crenshaw, From PrivateViolence to Mass Incarceration: Thinking Intersectionally About Women,Race, and Social Control, 59 UCLA L. REV. 1418, 1446 (2012) (same).

(140) In drawing this link, I hardly mean to suggest that criminallaw scholarship rooted in moral philosophy doesn't have a role toplay in discussions of criminal policy or in discussions of structuralreform. Rather, I mean to suggest that the sorts of structural, social,or cultural considerations that define more institutionally focusedcriminal law scholarship are not always foregrounded in morallyinflected traditional criminal law scholarship.

(141) See, e.g., Monica C. Bell, Police Reform and the Dismantlingof Legal Estrangement, 126 YALE L.J. 2054 (2017) (using social theory tocritique policing practices and the policing reform movement); IssaKohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 STAN. L.REV. 611 (2014) (providing an empirically grounded theoretical accountof criminal courts as engines of social control); Benjamin Levin,Rethinking the Boundaries of "Criminal Justice", 15 OHIO ST.J. CRIM. L. 619 (2018) (describing the sociological turn in criminal lawscholarship); Mariana Valverde, "Miserology": A New Look atthe History of Criminology, in THE NEW CRIMINAL JUSTICE THINKING (SharonDolovich & Alexandra Natapoff, eds. 2017) (framing criminal lawscholarship within a history of criminological thinking and within anintellectual project focusing on lived experience).

(142) See, e.g., Michael T. Cahill, Criminal Law's"Mediating Rules": Balancing, Harmonization, or Accident?, 93VA. L. REV. IN BRIEF 199, 199 (2007) (critiquing the "tendency oftheoretical work in criminal law ... to focus on ... questions about theproper justification, scope, and amount of punishment in the abstract,while giving significantly less consideration to the variousinstitutional and procedural aspects of any concrete system of imposingsuch punishment"); Ahmed A. White, Capitalism, Social Marginality,and the Rule of Law's Uncertain Fate in Modern Society, 37 ARIZ.ST. L.J. 759, 786 (2005) ("Conventional accounts of the criminaljustice system tend to obscure its social control agenda behind the ideathat its origins and functions lie with the prevention and punishment ofcrime or even the humanitarian reform of offenders. Such purported basesof criminal justice, which are ideologized ad nauseam in'justification theories,' are not always inaccuratecharacterizations of what the system actually does and how itarose.").

(143) See generally THE NEW CRIMINAL JUSTICE THINKING (SharonDolovich & Alexandra Natapoff, eds. 2017) (collecting work on thetheories and institutions that drive the contemporary criminal system).

(144) See, e.g., Malcolm, supra note 11, at 279-80 (catalogingexamples of overcriminalization, including statutes that criminalize:"install[ing] a toilet that uses too much water per flush,""misus[ing] the slogan 'Give a Hoot, Don'tPollute,'" "sell[ing] malt liquor labeled 'prewarstrength'"); Mila Sohoni, The Idea of "Too MuchLaw", 80 FORDHAM L. REV. 1585, 1606 n.l 18 (2012); Panel: CriminalLaw at the Federal Level, 18 TEX. REV. L. & POL. 97, 108 (2013)(discussing United States v. McNabb, 331 F.3d 1228, 1247 (11th Cir.2003), as amended (May 29, 2003), a case involving the transportationand packaging of lobsters); A Crime a Day (@CrimeADay), TWITTER,https://twitter.com/CrimeADay [http://perma.cc/VS7S-EPDG] (listingbizarre and outlandish applications of federal criminal law).

(145) See, e.g., Eisha Jain, Capitalizing on Criminal Justice, 67DUKE L.J. 1381, 1389 (2018).

(146) See, e.g., PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN (2017);Bell, supra note 141; Alice Ristroph, The Constitution of PoliceViolence, 64 UCLA L. REV. 1182 (2017).

(147) See, e.g., Sara Mayeux, The Idea of "The CriminalJustice System ", 45 AM. J. CRIM. L. 55, 60 (2018); Allegra M.McLeod, Confronting the Carceral State, 104 GEO. L.J. 1405, 1406(2016).

(148) I have articulated a version of this argument elsewhere. SeeLevin, supra note 1, at 300-01.

(149) To the extent that mens rea reform were being offered in lieuof other reforms, or if critics believed that it might be used toprevent future, sweeping reform, that would be a different story. Seenote 135, supra. It is worth noting that one critique from the left hasbeen that mens rea reform has been used opportunistically to hijackdiscussions on criminal justice reform. See, e.g., Editorial, HoldingSentencing Reform Hostage, N.Y. TIMES (Feb. 6, 2016),https://www.nytimes.com/2016/02/07/opinion/sunday/holding-sentencing-reform-hostage.html [http://perma.cc/4VA4-WTC5].

(150) As discussed, infra, it may be that some reformers have adifferent vision of criminal justice reform, one rooted less indecarceration or decriminalization, and more in shifting thedistribution or distributive commitments of the criminal system.

(151) On this concept of legitimation, see, e.g., DUNCAN KENNEDY, ACRITIQUE OF ADJUDICATION: FIN DE SIECLE (1997); SELECTIONS FROM THEPRISON NOTEBOOKS OF ANTONIO GRAMSCI (Quintin Hoare & Geoffrey NowellSmith eds.& trans., 1971); Louis Althusser, Ideology and IdeologicalState Apparatuses (Notes Towards an Investigation), in LENIN ANDPHILOSOPHY AND OTHER ESSAYS 127 (Ben Brewster trans., 1971; Paul D.Butler, Poor People Lose: Gideon and the Critique of Rights, 122 YALEL.J. 2176, 2189 (2013); Carol S. Steiker & Jordan M. Steiker, SoberSecond Thoughts: Reflections on Two Decades of Constitutional Regulationof Capital Punishment, 109 HARV. L. REV. 355, 429-32(1995).

(152) See, e.g., FORMAN, supra note 12, at 230 (arguing thatembracing reforms focused only on non-violent crime could mean that"criminal justice reform's first step--relief for nonviolentdrug offenders--could easily become its last" because this approach"effectively mark[s] this larger group of violent offenders aspermanently out-of-bounds"); PFAFF, supra note 35, at 31("[T]he rhetoric and tactics used to push through reforms forlower-level offenses often explicitly involve imposing even harsherpunishments on those convicted of violent crimes.").

(153) See notes 154-167, infra, and accompanying text.

(154) Legitimation arguments also rest on some range of assumptionsabout the social and political significance of a given reform, decision,or legal action. See generally Alan Hyde, The Concept of Legitimation inthe Sociology of Law, 1983 Wis. L. REV. 379 (1983) (critiquinglegitimation critiques).

(155) The moral culpability analysis of mens rea reform proponentslooks very different from a range of relatively common claims about thepotentially diminished moral culpability of less privileged defendants.See. e.g., United States v. Alexander, 471 F.2d 923, 961 (D.C. Cir.1972) (Bazelon, C.J., dissenting); RICHARD L. LIPPKE, RETHINKINGIMPRISONMENT 101-02 (2007); Richard Delgado, Rotten Social Background:Should the Criminal Law Recognize a Defense of Severe EnvironmentalDeprivation?, 3 LAW & INEQ. J. 9 (1985). That said, mens rea reformproposals have attracted support from public defenders who argue thatthese bills might help poor defendants of color. See, e.g., PressRelease, Senators Hatch, Lee, Cruz, Perdue, and Paul Introduce Bill toStrength Criminal Intent Protections (Oct. 2, 2017),https://www.lee.senate.gov/public/index.cfm/2017/10/senators-hatch-lee-cruz-perdue-and-paul-introduce-bill-to-strength-criminal-intent-protections [http://perma.cc/VLU5-38WU] (statement of David Patton, ExecutiveDirector and Attorney-in-Chief, Federal Defenders of New York, Inc.)("As Federal Defenders, we are acutely aware of the need for mensrea reform. Over 80 percent of people charged with federal crimes aretoo poor to afford a lawyer, and nearly 80 percent of people chargedwith federal crimes are Black, Hispanic, or Native American. These areour clients, and too many of them are subject to laws that are neitherfair nor consistent with traditional principles of criminal liability.This bill would help to remedy some of those failings.").

(156) See Matt Ford, Could a Controversial Bill SinkCriminal-Justice Reform in Congress?, THE ATLANTIC (Oct. 26, 2017),https://www.theatlantic.com/politics/archive/2017/10/will-congress-reform-crirninal-intent/544014/[http://perma.cc/HU6M-4HRH].

(157) See Takei, supra note 12, at 169 ("[S]ome have accusedconservatives of using criminal justice reform as a 'TrojanHorse' to advance corporate interests and weaken environmentalregulations.").

(158) Id. Indeed, a major component of Senator Warren'ssupport for stronger regulations of the financial sector often has beenstronger enforcement of criminal law. See Bridget Bowman, ElizabethWarren Releases Report Showing How Corporate Criminals Get Off Easy,ROLL CALL (Jan. 29, 2016),http://www.rollcall.com/news/home/warren-releases-rigged-justice-report[http://perma.cc/3YHE-9M63].

(159) RIGGED JUSTICE: 2016 How WEAK ENFORCEMENT LETS CORPORATEOFFENDERS OFF EASY (2016),https://www.warren.senate.gov/fues/documents/Rigged_Justice_2016.pdf[http://perma.cc/G6NL-FBB6] [hereinafter Rigged Justice].

(160) See generally id.

(161) See generally id.

(162) Ford, supra note 156.

(163) See Simon Johnson, An Occupy Wall Street Offshoot Has ItsDay, N.Y. TIMES (Jan. 16, 2014),https://economix.blogs.nytimes.com/2014/01/16/occupy-the-s-e-c-has-its-day/?_php=true&_type=blogs&_r=0 [http://perma.cc/DT5C-6SEH].

(164) PETITION, JOIN OCCUPY THE SEC IN URGING THE CONGRESS TOOPPOSE H.R.A 4002, https://www.petition2congress.com/ctas/join-occupy-sec-in-urging-congress-to-oppose-hr4002-criminal-code[http://perma.cc/8RJ5-38MR].

(165) Id.

(166) Id.

(167) Barack Obama, The President's Role in Advancing CriminalJustice Reform, 130 HARV. L. REV. 811, 829 n.89 (2017).

(168) WHITMAN, supra note 130, at 45.

(169) For an account of the fraught relationship between populismand criminal policymaking, see generally LISA L. MILLER, THE MYTH OF MOBRULE: VIOLENT CRIME & DEMOCRATIC POLITICS (2016).

(170) Kelman, supra note 41, at 610.

(171) Id. Cf. John C. Coffee, Jr., Does "Unlawful" Mean"Criminal"?: Reflections on the Disappearing Tort/crimeDistinction in American Law, 71 B.U. L. REV. 193, 195 96 (1991)(examining the utilitarian justifications for imposing punishment oncorporate agents who may have acted in good faith).

(172) See Gruber, supra note 104, at 5 ("[C]riminal rulesoften distribute punishment to defendants in order to secure a good suchas compensation, satisfaction, or 'closure' forvictims.").

(173) See id. at 59.

(174) Cf. SAMUEL W. BUELL, CAPITAL OFFENSES: BUSINESS CRIME ANDPUNISHMENT IN AMERICA'S CORPORATE AGE 223 (2016) ("When wetalk about the fair, right, or proportionate sentence for a businesscrime, we're often talking about equality").

(175) See Malcolm, supra note 11, at 279-81.

(176) See, e.g., Marc A. Levin, At the State Level, So-CalledCrimes Are Here, There, Everywhere, 28 CRIM. JUST. 4, 5 (2013)("Excessive criminalization not only leads to injustice andunfairness, it also deters and even reduces productive activity. TheSarbanes-Oxley legislation and the labyrinth of rules it has spawnedimpose criminal penalties for accounting errors, and has saddled USbusinesses with an estimated $100 million in compliance and opportunitycosts."); George F. Will, Eric Garner, Criminalized to Death, WASH.POST (Dec. 10, 2014), available athttps://www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11 e4-9f38-95a 187e4c 1f7_story.html?noredirect=on&utm_term=.5dda9e44b0bf[https://perma.cc/UGD9-U362].

(177) Defining the Problem and Scope of Over-Criminalization andOver-Federalization: Hearing Before the Over-Criminalization Task Forceof 2013 of the H. Comm. on the Judiciary, 113th Cong. 8 (2013).

(178) Id.

(179) Whether Democrats are right about the actual distributiveconsequences of mens rea reform remains an empirical question--we do notknow how many more defendants would be able to raise a successfuldefense in a world with heightened mental state requirements, nor do weknow the demographic breakdown of defendants who would benefit from suchlegislation.

(180) Cf. MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THEPOLITICS OF MASS INCARCERATION IN AMERICA 238 (2006) ("[W]e shouldnot assume that 'reform' means progressive movement towardsome social, economic, or political outcome that tis widely recognizedas necessary and desirable ... In the case of penal policy, manyso-called reforms of the past resulted in a further consolidation ofcarceral power and the legitimization of continued abuses.").

(181) It is worth noting that mens rea reform might not even benecessary to serve deregulatory ends. Indeed, scholars have observedthat courts already tend to read heightened mens rea requirements intootherwise-silent white-collar crime statutes. See, e.g., Darryl K.Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 262-63(2007) ("[I]n the context of federal regulatory or white-collarcrime prosecutions, federal courts have a clear pattern of interpretinghundreds of criminal statutes to contain strict mens rearequirements.").

(182) See generally GOTTSCHALK., supra note 135, at 258-82(offering a skeptical take on conservative criminal justice reform).

(183) See Benjamin Levin, Guns and Drugs, 84 FORDHAM L. REV. 2173,2221-22 (2016).

(184) See BERNARD E. HARCOURT, THE ILLUSION OF FREE MARKETS:PUNISHMENT AND THE MYTH OF NATURAL ORDER 40-44 (2011). ("Neoliberalpenality facilitates passing new criminal statutes and wielding thepenal sanction more liberally because that is where government isnecessary, that is where the state can legitimately act, that is theproper and competent sphere of politics.").

(185) See id.

(186) See id.

(187) See id.

(188) See Levin, supra note 183, at 2192.

(189) See, e.g., FORMAN, supra note 12, at 12-13; see generallyKimberle Crenshaw, Mapping the Margins: Intersectionality, IdentityPolitics, and Violence Against Women of Color, 43 STAN. L. REV. 1241(1991); Janet Halley et al.. From the International to the Local inFeminist Legal Responses to Rape, Prostitution/sex Work, and SexTrafficking: Four Studies in Contemporary Governance Feminism, 29 HARV.J. L. & GENDER 335, 340 (2006); Jeannie Suk, Criminal Law ComesHome, 116 YALE L.J. 2, 70 (2006).

(190) See, e.g., FORMAN, supra note 12; Crenshaw, supra note 139;Bonita R. Gardner, Separate and Unequal: Federal Tough-on-Guns ProgramTargets Minority Communities for Selective Enforcement, 12 MICH. J. RACE& L. 305, 317 (2007); Aya Gruber, Equal Protection Under theCarceral State, 112 Nw. U. L. REV. 1337, 1365-66 (2018):

A poignant example is domestic violence reform, where feminists'interest in fair treatment of female victims converged withprosecutors' interest in punishing batterers, resulting in punitivepolicies that actually devalued and materially harmed women.Lawmakers' and other state actors' receptivity to disparity claimsvary by their interests, and the criminal arena is one in whichpunitive interests are ascendant.

Id.

(191) See Derrick A. Bell, SILENT COVENANTS: BROWN V. BOARD OFEDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 165-79 (2004).

(192) See, e.g., FORMAN, supra note 12, at 47-78 (describing thepolitics of gun control among black community activists in WashingtonD.C.); Levin, Guns and Drugs, supra note 183 (describing statutes andpolicies that received bipartisan support).

(193) See FORMAN, supra note 12, at 47-78.

(194) See Levin, Guns and Drugs, supra note 183, at 2207-09; DavidE. Patton, Guns, Crime Control, and a Systemic Approach to FederalSentencing, 32 CARDOZO L. REV. 1427,1447-48(2011).

(195) See, e.g., Gardner, supra note 190, at 317 ("Accordingto statistics presented in the Eastern District of Michigan, almostninety percent of those prosecuted under Project Safe Neighborhoods areAfrican American And under Project Exile in Richmond, Virginia, thedefendant and prosecution stipulated in an Eastern District case that'as many as 90 percent of the defendants prosecuted under ProjectExile are African American.'" (footnotes omitted)); Levin,Guns and Drugs, supra note 183, at 2193-98; Sonja B. Starr & M.Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing theRole of Prosecutors and the Effects of Booker, 123 YALE L.J. 2, 30(2013).

(196) See, e.g., JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKEA BREAK FROM FEMINISM (2008); JEANNIE SUK, AT HOME IN THE LAW: How THEDOMESTIC VIOLENCE REVOLUTION IS TRANSFORMING PRIVACY (2009); Aya Gruber,Neofeminism, 50 HOUS. L. REV. 1325 (2013); Leigh Goodmark, ShouldDomestic Violence Be Decriminalized?, 40 HARV. J.L. & GENDER 53, 55(2017); Alice Ristroph, Criminal Law in the Shadow of Violence, 62 ALA.L. REV. 571, 602 (2011).

(197) See, e.g., Crenshaw, supra note 139; Jeannie Suk, CriminalLaw Comes Home, 116 YALE L.J. 2, 8 (2006) ("And perhapsunsurprisingly, this phenomenon is thoroughly class-contingent becauseit largely affects poor urban minorities and immigrants."); TaraUrs, Coercive Feminism, 46 COLUM. HUM. RTS. L. REV. 85, 86 (2014);Claire Houston, How Feminist Theory Became (Criminal) Law: Tracing thePath to Mandatory Criminal Intervention in Domestic Violence Cases, 21MICH. J. GENDER & L. 217, 270 (2014).

(198) See, e.g., The Critical Resistance INCITE! Statement onGender Violence and the Prison Industrial Complex, in ABOLITION Now!:TEN YEARS OF STRATEGY AND STRUGGLE AGAINST THE PRISON INDUSTRIAL COMPLEX15 (The CRIO Publications Collective, eds. 2008); Donna K. co*ker,Shifting Power for Battered Women: Law, Material Resources, and PoorWomen of Color, 33U.C. DAVIS L. REV. 1009, 1046 (2000); Goodmark, supranote 196, at 58; Angela P. Harris, Heteropatriarchy Kills: ChallengingGender Violence in a Prison Nation, 37 WASH. U. J.L. & POL'Y13, 38 (2011); Survived and Punished: End the Criminalization ofSurvivors of Domestic and Sexual Violence, SURVIVED & PUNISHED,http://www.survivedandpunished.org [http://perma.cc/VEB4-25EF].

(199) See generally Aya Gruber, Rape, Feminism, and the War onCrime, 84 WASH. L. REV. 581 (2009) (tracking feminist support forstronger criminal regulation of sexual assault).

(200) See FORMAN, supra note 12, at 12-13 (arguing that blackactivists in the late 1960s supported some harsh criminal policies, butdid so alongside calls for state intervention in other areas--animagined "Marshall Plan for the cities"); Elizabeth Hinton,Julilly Kohler-Hausmann, & Vesla M. Weaver, Opinion, Did BlacksReally Endorse the 1994 Crime Bill?, N.Y. TIMES, Apr. 13, 2016, at A25("Policy makers pointed to black support for greater punishment andsurveillance, without recognizing accompanying demands to redirect powerand economic resources to low-income minority communities.").

(201) See Ely Aharonson, "Pro-Minority" Criminalizationand the Transformation of Visions of Citizenship in Contemporary LiberalDemocracies: A Critique, 13 NEW CRIM. L. REV. 286, 287(2010).

(202) See, e.g., Aziza Ahmed, When Men Are Harmed: Feminism, QueerTheory, and Torture at Abu Ghraib, 11 UCLA J. ISLAMIC & NEAR E. L.1,5 (2012); Gruber, supra note 199 (arguing that "criminal lawhistorically enforced and entrenched racial, gender, and socio-economichierarchies"); Suk, supra note 189, at 70.

(203) Cf. Duncan Kennedy, A Semiotics of Legal Argument, 42SYRACUSE L. REV. 75, 97-103 (1991) (describing "the reproduction,within a doctrinal solution to a problem, of the policy conflict thesolution was supposed to settle").

(204) See supra note 179.

(205) See supra notes 170-173, and accompanying text.

(206) There may be some degree of "Americanexceptionalism" in the way criminal law has been used to addressthe perceived criminality of capital. In his comparative analysis ofcriminal policies in Europe and the United States, James Whitmanemphasizes different approaches to white-collar crime on both sides ofthe Atlantic. See WHITMAN, supra note 130, at 80-82. While corporatecrime became a source of concern in France and Germany in the 1970s and1980s, the reaction there never became as harsh or punitive as in theStates. Id. at 81. "Uncomfortable with the idea of inflictingordinary criminal punishments," Whitman explains, "the Frenchsystem... developed a whole class of special mild punishments ... called'criminal administrative sanctions' ... "Id.

(201) See, e.g., Sanford H. Kadish, The Crisis ofOvercriminalization, 7 AM. CRIM. L. Q. 17,33(1968-69):

The plain sense that the criminal law is a highly specialized toolof social control, useful for certain purposes but not for others; thatwhen improperly used it is capable of producing more evil than good;that the decision to criminalize any particular behavior must followonly after an assessment and balancing of gains and losses-this obviousinjunction of rationality has been noted widely for over 250 years.

Id.

(208) See R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 197(2001) ("We should, of course, do what we can to work towards arestructuring of society that would transform it into a genuine,inclusive liberal community ... But such restructuring takestime--decades, if not lifetimes."). But see Bernard Harcourt,Matrioshka Dolls, in TRACEY L. MEARES & DAN KAHAN, URGENT TIMES:POLICING AND RIGHTS IN INNER-CITY COMMUNITIES 87 (1999) (arguing thatpolitical power imbalances complicate framings of marginalizedpopulations).

(209) See generally Miriam H. Baer, Choosing Punishment, 92 B.U. L.REV. 577 (2012).

(210) See id. at 581.

(211) See generally SIMON, supra note 16.

(212) See id. at 17.

(213) Id.

(214) Cf. Miriam Baer, Sorting Out White Collar Crime, 111 TEX. L.REV. (forthcoming 2019) (describing many criminal statutes passed duringthe spike in criminalization as "represent[ing] 'cheap'political reactions to singular events or scandals of the day").

(215) See, e.g., Mark A.R. Kleiman, Substituting EffectiveCommunity Supervision for Incarceration, 99 MINN. L. REV. 1621, 1621(2015) ("The default punishment in the current American system isincarceration."); Alternatives to Incarceration, 111 HARV. L. REV.1863, 1869 (1998) ("[I]ncarceration is now the default and bedrockof the American criminal justice system.").

(216) RIGGED JUSTICE, supra note 159.

(217) See id. at 1.

(218) Prosecutors might pursue other ends rather than incarcerationof corporate executives (or even restitution or fines). See Brandon L.Garrett, Structural Reform Prosecution, 93 VA. L. REV. 853, 855 (2007).

(219) And, incarceration isn't even that common in many typesof high-profile white-collar prosecutions. See GARRETT, supra note 130,at 13-14.

(220) Cf. id. at 137-40 (discussing the role of civil suits incompensating victims of corporate crime).

(221) See Patricia M. Jones, Sentencing, 24 AM. CRIM. L. REV. 879,900 (1987) ("Fines are the traditionally favored mode ofwhite-collar deterrence").

(222) See, e.g., United States v. Beasley, 12 F.3d 280, 283 (1stCir. 1993) (identifying "the basic purposes of punishment");Michael Tonry, Purposes and Functions of Sentencing, 34 CRIME &JUST. 1, 6 (2006) ("Generally when people discuss the'purposes' of punishment, they refer to normative rationalessuch as retribution or crime prevention through deterrence,incapacitation, rehabilitation, and moral education.").

(223) For a more thorough analysis in the broader context ofcorporate crime, see SAMUEL W. BUELL, CAPITAL OFFENSES: BUSINESS CRIMEAND PUNISHMENT IN AMERICA'S CORPORATE AGE 213-23 (2016).

(224) See, e.g., Joy Radice, 77;e Reintegrate State, 66 EMORY L.J.1315, 1327 (2017) ("The rehabilitative ideal was, rightly orwrongly, seen as a failed endeavor... "); James Gilligan, Opinion,Punishment Fails. Rehabilitation Works, N.Y. TIMES (Dec. 19, 2012),https://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/punishment-fails-rehabilitation-works [http://perma.cc/92ZB-6HEW].

(225) Cf DARIO MELOSSI & MASSIMO PAVARINI, THE PRISON AND THEFACTORY (40th Anniversary Edition) 261 ("The prison, and the penalsystem in general, can be useful in governing and reducing crime only ifenabled to select and neutralize those whom the social system cannotinclude or feels unable to include.").

(226) See, e.g., Malcolm M. Feeley & Jonathan Simon, The NewPenology: Notes on the Emerging Strategy of Corrections and ItsImplications, 30 CRIMINOLOGY 449, 449 (1992); Sharon Dolovich,Confronting the Costs of Incarceration: Foreword: IncarcerationAmerican-Style, 3 HARV. L. & POL'Y REV. 237, 252-54 (2009);Mona Lynch, Waste Managers? The New Penology. Crime Fighting, and ParoleAgent Identity, 32 LAW & SOC'Y REV. 839, 839 (1998)("[0]ver the past few decades, a systems analysis approach todanger management has come to dominate criminal justice administration,and they suggest that the penal enterprise may well be evolving into a'waste management' system rather than a normalizing orrehabilitative one.").

(227) See, e.g., BERNARD E. HARCOURT, AGAINST PREDICTION:PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE (2006); JessicaM. Eaglin, Constructing Recidivism Risk, 67 EMORY L.J. 59, 62-63 (2017)("Critics oppose risk-based sentencing as a matter of fairness.They contend that, because risk tools rely on factors like gender orproxies for race, using the tools at sentencing is impermissible as amatter of constitutionality or bad policy."); Sandra G. Mayson,Dangerous Defendants, 127 YALE L.J. 490, 495^96 (2018) ("[T]he turnto actuarial risk assessment has engendered both excitement andapprehension, but criticism has centered on its potential to exacerbaterace and class inequalities"); Sonja B. Starr, Evidence-BasedSentencing and the Scientific Rationalization of Discrimination, 66STAN. L. REV. 803, 817 (2014).

(228) Cf. GEORG RUSCHE & OTTO KIRCHEIMER, PUNISHMENT AND SOCIALSTRUCTURE 207 (1939, 1967)

The futility of severe punishment and cruel treatment may be provena thousand times, but so long as society is unable to solve its socialproblems, repression, the easy way out, will always be accepted. Itprovides the illusion of security by covering the symptoms of socialdisease with a system of legal and moral value judgments.

Id.

(229) See, e.g., Miriam H. Baer, Linkage and the Deterrence ofCorporate Fraud, 94 VA. L. REV. 1295, 1314 (2008) ("[I]f any groupis likely to be deterred by increased criminal sanctions, it is thewhite collar criminals who perpetrate fraud."); Jones, supra note221 at 899 ("Because the white-collar criminal poses little threatto public safety, and rehabilitation is arguably a secondary sentencingpurpose, punishment and deterrence form the primary bases for thewhite-collar sentence.") (footnotes omitted); Richard A. Posner, AnEconomic Theoty of the Criminal Law, 85 COLUM. L. REV. 1193, 1224 (1985)("Because criminal sanctions are so costly, they have to be set atlevels that do not deter everyone, but it does not follow that a personwho is not deterred is not a wrongdoer. He is just someone for whomcriminal activity is utility maximizing. As for strict liability, itwill deter, by inducing a change in activity level."); DanielRichman, Federal White Collar Sentencing in the United States: A Work inProgress, 76 LAW & CONTEMP. PROBS. 53, 65 (2013) (focusing on therole of deterrence in white-collar enforcement).

(230) RIGGED JUSTICE, supra note 159, at 1. In full, the reportstates that: "Strong enforcement of corporate criminal laws servessimilar goals: to deter future criminal activity by making would-belawbreakers think twice before breaking the law and, sometimes, byhelping victims recover from their injuries." Id. (emphasis added).Interestingly, deterrence is framed as the primary objective andrestitution appears to be little more than a possible side effect. Thischaracterization of the social function of corporate criminal law raisesimportant questions about how radical, transformative, orredistributionist white-collar prosecutions can be. If the reason toprosecute corporate actors (and, importantly, to hold them strictlyliable) is as a means of redistributing wealth or spreading loss, thenit would seem that restitution would be the desired outcome of mostprosecutions. If, instead, prosecutions are designed to achievedeterrence via prison time, then this redistributionist goal appearsmuch less clear. (Or, at least, much less clearly advanced.) Certainly,holding a corporate defendant strictly liable might discipline capitaland, by extension, curb the sorts of excesses or exploitative practicesthat drive inequality. But, absent restitution or something resemblingrestorative justice, a prosecution under a strict liability frameworkappears to empower the state and prosecutors more than the victims.

(231) See, e.g., Peter J. Henning, Is Deterrence Relevant inSentencing White-Collar Criminals?, 61 WAYNE L. REV. 27, 48 (2015)(arguing that white-collar defendants appear to be relatively immunefrom the deterrent effect of criminal punishment); Elizabeth Szockyj,Imprisoning White-Collar Criminals?, 23 S. III. U. L.J. 485, 493 (1999)("There is lukewarm support for the position that criminalpenalties effectively deter corporate crime.").

(232) Another way of thinking about this deterrence-based argumentis through the lens of expressivism or public education. That is,perhaps the purpose of the prosecution is not simply to deter corporateactors from behaving badly, but is also to send a message about socialvalues. See, e.g., EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 102(W.D. Halls trans., 2014) (1893); MICHEL FOUCAULT, DISCIPLINE &PUNISH 138 (Alan Sheridan trans., Vintage Books 2d ed. 1995). Whetherthe idea is that no one is above the law or that industry should beunable to harm individuals and communities with impunity, thisexpressivist or Durkheimian account would suggest that the prosecutionsends a message. Other legal liability--whether through tort or a civilregulatory action--might do some work, but it wouldn't bear thesame social significance and wouldn't mark the conduct as trulyunacceptable. If that's the argument animating opposition to mensrea reform--and Senator Warren's rhetoric suggests as much--thenthere are assumptions worth unpacking. Most importantly, if this accountis about legitimacy and public values, then should it matter whatpunishment looks like? If criminal law and prosecutors are supposed toserve as the moral compass for society, shouldn't it matter thatmany commentators view the criminal system as deeply immoral? See, e.g.,Paul Butler, The System Is Working the Way It Is Supposed to: The Limitsof Criminal Justice Reform, 104 GEO. L.J. 1419 (2016) (arguing that theinjustice of the contemporary system is not an aberration but a sign ofthe system's core function in preserving racial hierarchy); AbbeSmith, Can You Be A Good Person and A Good Prosecutor?, 14 GEO. J. LEGALETHICS 355, 396 (2001) ("My answer to the question, 'Can YouBe a Good Person and a Good Prosecutor?', is now probably evident.But, let me say it plainly and then attempt to address some of theobjections to my position. My answer is both harsh and tempered: I hopeso, but I think not.").

(233) See Stuntz, supra note 6, at 528 ("Legislators gain whenthey write criminal statutes in ways that benefit prosecutors.Prosecutors gain from statutes that enable them more easily to induceguilty pleas.").

(234) In this respect, some of the bigger questions about thesocial desirability or utility of using criminal law to regulatecorporate actors fall outside of the space of this Article. Those aremajor questions that have generated a rich scholarly discourse. See,e.g., Baer, supra note 209; Darryl K. Brown, Criminal Law'sUnfortunate Triumph over Administrative Law, 7

J.L. ECON. & POL'Y 657 (2011); Coffee, supra note 171.That said, it is worth recognizing that the failure to bring asuccessful prosecution needn't vitiate other regulatory options.See generally Baer, supra note 209 (discussing these tradeoffs).

(235) See, e.g., Rachel E. Barkow, Separation of Powers and theCriminal Law, 58 STAN. L. REV. 989, 1044 (2006); Paul Butler, Starr Isto Clinton As Regular Prosecutors Are to Blacks, 40 B.C. L. REV. 705,705 (1999); Angela J. Davis, Prosecution and Race: The Power andPrivilege of Discretion, 67 FORDHAM L. REV. 13, 17 (1998).

(236) Cf. Gruber, supra note 190, at 1364-83 (describing andcritiquing the "level up" approach).

(237) Cf. JESSE EISINGER, THE CHICKENsh*t CLUB: WHY THE JUSTICEDEPARTMENT FAILS TO PROSECUTE EXECUTIVES (2017) (linking the rise ofincome inequality in the United States to federal prosecutors'failure to aggressively enforce criminal laws).

(238) See Gruber, supra note 190, at 1364-83.

(239) See, e.g., Shima Baradaran, Race, Prediction, and Discretion,81 GEO. WASH. L. REV. 157, 160 (2013); Ian F. Haney Lopez, Post-RacialRacism: Racial Stratification and Mass Incarceration in the Age ofObama, 98 CALIF. L. REV. 1023 (2010); Alice Ristroph, Desert, Democracy,and Sentencing Reform, 96 J. C'RIM. L. & CRIMINOLOGY 1293, 1333(2006) ("Criminal law scholars often acknowledge that our criminaljustice system is riddled with inequality"); David A. Sklansky,Cocaine, Race. and Equal Protection, 47 STAN. L. REV. 1283, 1316 (1995);William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 1997(2008).

(240) See Bowman, supra note 158.

(241) See Alexandra Natapoff, The Penal Pyramid, in THE NEWCRIMINAL JUSTICE THINKING 33 (Sharon Doiovich & Alexandra Natapoffeds., 2017).

(242) See generally ALEXANDER, supra note 12.

(243) See, e.g., DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORKIN AN ERA OF MASS INCARCERATION (2007) (examining the role of race andcriminal records in enforcing the terms of social exclusion from thelabor market); WACQUANT, supra note 12; WESTERN, supra note 12; DorothyE. Roberts, The Social and Moral Cost of Mass Incarceration in AfricanAmerican Communities, 56 STAN. L. REV. 1271 (2004).

(244) Bryan Stevenson, We Need To Talk About an Injustice, TED TALK(Mar. 2012), https://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice [http://pen-na.cc/68YL-9ARN].

(245) See, e.g., THOMAS PIKETTY, CAPITAL IN THE TWENTY FIRSTCENTURY (Arthur Goldhammer trans., Belknap Press of Harvard Univ. Press2014) (tracing the rise of income inequality).

(246) See, e.g., Gruber, supra note 190, at 1364-83 (trackingdifferent possible responses); Randall L. Kennedy, McCleskey v. Kemp:Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388(1988) (embracing a harsher or more punitive response to inequality).

(247) See, e.g., Gruber, supra note 190, at 1363-66 ("To some,eliminating whatever individual disparity they encounter throughwhatever means is an end in itself--and the end of the story.");Levin, supra note 1 (using the example of enforcing drug laws moreharshly against white defendants as a "levelling up" solutionto racial inequality in the War on Drugs).

(248) Gruber, supra note 190, at 1364 (citing James Forman, Jr.,Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87N.Y.U. L. REV. 21 (2012)).

(249) Id. at 1366.

(250) See Kate Levine, How We Prosecute the Police, 104 GEO. L.J.745, 776 (2016) ("This realization has led many to call for lessprocess for police. This Article has argued that the far more desirableconclusion is to give more process to the rest of us. Anyone seriousabout criminal justice reform needs to consider how prosecutors treatpolice suspects. The process they give their law enforcement partnershas much to tell us about how to create a better system foreveryone.").

(251) One prevalent response to this call for "levellingdown" sounds in the language of identification and empathy.According to this line of reasoning, more people--particularly powerfulor privileged people--should be forced to experience the criminalsystem. That is, such an argument goes, one problem with our currentsystem is that many people have no exposure with criminal law or lawenforcement; these people--often more affluent white voters--are unableto identify with individuals and communities deeply affected by massincarceration or tough-on-crime policies. See William J. Stuntz, ThePolitical Constitution of Criminal Justice, 119 HARV. L. REV. 780, 783(2006). By increasing the likelihood that more privileged people (or,everyone) has contact with the criminal system, perhaps we might alterwhat Stuntz describes as the "pathological politics of criminallaw" and force voters and members of the polity to recognize thatthey, too, are potential defendants. See Daniel Epps, The Consequencesof Error in Criminal Justice, 128 HARV. L. REV. 1065, 1103-04 (2015)("By making it harder to punish, the Blackstone principleconcentrates criminal punishment on a more discrete group of people. Andit makes the group of people being punished less politically attractive,because it ensures that a higher percentage of them will be guilty (orat least seen as guilty). We should thus expect the Blackstone principleto increase political tolerance for harsh treatment of convictedcriminals."). other issues of identity (race, class, gender,sexuality, etc.) might continue to make certain defendants lesssympathetic and might allow for an identification of certain defendantsas more deserving of punishment, less remorseful, etc. Second, evenputting the empirical question aside, there is an even bigger questionof whether anyone should suffer the indignities associated with massincarceration. For scholars and advocates who are skeptical of thestructures and institutions that comprise the carceral state, the answermight well be "no." See generally Allegra M. McLeod, PrisonAbolition and Grounded Justice, 62 UCLA L. REV. 1156 (2015). Or, even ifwe are ambivalent about that question of first principles, there mightwell be means of building broader social or cultural identification withcriminal defendants that do not require embracing the prosecutorial andpunitive model. See generally Simonson, supra note 131 (embracing amodel of criminal procedure that would empower the "community"to support and assist criminal defendants).

(252) Waldrop v. Comm'r, Ala. Dep't of Corr., 711 F.App'x 900, 902 (11th Cir. 2017).

(253) Id. at 904.

(254) Id.

(255) Id. at 904-05.

(256) Id. at 916.

(257) See generally id.

(258) Stevenson, supra note 244.

(259) Stevenson describes it as a "crazy motion." Id. Ofcourse, Stevenson and other racial justice advocates view the Waldropjudge's statement and reasoning as similarly absurd. See. e.g.,EQUAL JUSTICE INITIATIVE, EJI Challenges Death Sentence Infected byRacial Bias and

Imposed Despite the Jury's Life Sentence (Aug. 13, 2018),https://eji.org/news/eji-challenges-bobby-waldrop-death-sentence-by-judge-override [http://perma.cc/C783-TNTW],

(260) Gruber, supra note 190, at 1340-41.

(261) See generally Levine, supra note 250; Kate Levine, PoliceSuspects, 116 COLUM. L. REV. 1197, 1258(2016).

(262) See Levine, supra note 250, at 776.

(263) See id.

(264) See infra Part IV.C.

(265) RIGGED JUSTICE, supra note 159, at 7. The move to analogizecorporate conduct to conventional criminality isn't new and,historically, has been the province of more radical leftist strands.See. e.g., Fredric Jameson, Reification and Utopia in Mass Culture, Soc.TEXT, Winter 1979, at 130, 145 (1979):

When indeed we reflect on an organized conspiracy against the public,one which reaches into every corner of our daily lives and ourpolitical structures to exercise a wanton ecocidal and genocidalviolence at the behest of distant decision-makers and in the name ofan abstract conception of profit-surely [The Godfather'] is not aboutthe Mafia, but rather about American business itself that we arethinking, American capitalism in its most systematized andcomputerized, dehumanized, 'multinational' and corporate form. Whatkind of crime, said Brecht, is the robbing of a bank, compared to thefounding of a bank?

Id. Benjamin Levin, Made in the U.S.A.: Corporate Responsibilityand Collective Identity in the American Automotive Industry, 53 B.C. L.REV. 821, 850 (2012) (describing this theme in radical narratives);Woody Guthrie, Pretty Boy Floyd, on Folkways: The Original Vision(Smithsonian Folkways Records 1990) ("I've seen lots of funnymen/Some will rob you with a six-gun,/And some with a fountainpen."). Notably, in many of these radical accounts, the response tothis inequality is not necessarily an appeal to have bankers orcapitalists prosecuted. Rather, it is to offer or ask for a deepercritique of capitalism and the social structures that have empoweredcorrupt capitalists. See Levin, supra note 126, at 163-64.

(266) See, e.g., Zach Carter, Opinion, House Bill Would Make ItHarder To Prosecute While-Collar Crime, HUFFINGTON POST (Nov. 16, 2015),https://www.huffingtonpost.com/entry/white-collar-crime-prosecution_us_564a2336e4b06037734a2f84 [http://perma.cc/LEN 4-Z9EA]; Sam Sacks, Sen.Warren Shames GOP's Criminal Justice "Reform" Proposals,D.C. SENTINEL (Feb. 3, 2016),https://www.districtsentinel.com/sen-warren-shames-gops-criminal-justice-reform-proposals/[http://perma.cc/FL99-FJV4]; Don't Change theLegal Rule on Intent, supra note 133.

(267) WHITMAN, supra note 130, at 9.

(268) Id.

(269) See id. at 7-10.

(270) See RIGGED JUSTICE, supra note 159, at 7 ("If justicemeans a prison sentence for a teenager who steals a car").

(271) Cf. GARRETT, supra note 130, at 263-66 (comparing data oncorporate prosecutions to other types of prosecutions).

(272) See generally Butler, supra note 232 (arguing that thecriminal system is designed to control poor people of color).

(273) See Gruber, supra note 190, at 1383 (expressing concern thatthese sorts of equality arguments "will lead to level-up solutionsthat render minority defendants vulnerable to increased policing,prosecution, and incarceration").

(274) See supra note 251.

(275) Cf. Aya Gruber, A Provocative Defense, 103 CALIF. L. REV.273, 332 (2015) (making a similar argument in regard to the proposedelimination of the provocation defense); Benjamin Levin, Note, ADefensible Defense?: Reexamining Castle Doctrine Statutes, 47 HARV. J.ON LEGIS. 523, 552 (2010) (raising a similar argument in regard to thecastle doctrine).

(276) See supra notes 233-235 and accompanying text.

(277) See supra Part II. A. As I have noted throughout thisArticle, I do not mean to discount the practical issues that wouldresult from the passage of mens rea reform legislation. At the veryleast, to the extent that drafters intended an otherwise-silent statuteto impose strict liability, Congress would need to go back and amend thestatute.

(278) See supra note 234.

(279) See, e.g., Andrew Manuel Crespo, The Hidden Law of PleaBargaining, 118 COLUM. L. REV. 1303, 1311 (2018) ("[W]hile such anexchange may sound like an actual bargain, with each party gaining, toquote the Supreme Court, a 'mutuality of advantage' from thedeal, most knowledgeable observers describe it as something else: afundamentally coercive practice (occasionally analogized to torture)that produces involuntary pleas, sometimes to crimes the defendant didnot commit.") (footnote omitted); Hessick, supra note 78, at 1138.

(280) Robert E. Scott & William J. Stuntz, Plea Bargaining AsContract, 101 YALE L.J. 1909, 1965(1992).

(281) Yates v. United States, 135 S. Ct. 1074, 1100 (2015) (Kagan,J., dissenting).

(282) Id.

(283) Id. at 1101; see also Morrison v. Olson, 487 U.S. 654, 727-34(1988) (Scalia, J., dissenting) (critiquing excessive prosecutorialpower).

(284) See, e.g., FORMAN, supra note 12, at 221-22, 229 (critiquinga reformist impulse that focuses only on "nonviolentoffenders"); GOTTSCHALK, supra note 135, at 165-69 (criticizing asinsufficient reform proposals targeted at "nonviolent, nonserious,nonsex crimes"); Ristroph, supra note 196, at 621 (critiquing theline between violent and non-violent crime and the overreliance on thatline in crafting policy).

(285) Or, more provocatively, carceral NIMBYism (i.e., I cansupport decarceration until the harm or bad conduct by a defendantthreatens me or my values). Such a frame becomes particularly fittingwhen confronting situations that literally appear to involve progressivecommentators affirming their commitments to criminal justice reform orprogressive causes while suggesting that crime in their ownneighborhoods must be dealt with swiftly and harshly. See, e.g., DavidKline et al., Portland Must Stand Up to Predators, OREGONIAN (June 6,2018), https://www.oregonlive.com/opinion/index.ssf/2018/06/portland_must_stand_up_to_pred.html?utm_source=The+Appeal&utm_campaign=6eba011046&utm_medium=email&utmjerm=0_72df992d84-6eba011046-58393087[http://penria.cc/3PQN-YLT3] ("Portlanders rightly take pride intheir acceptance of all lifestyles. But predatory criminal behavior isnot an 'alternative lifestyle.' It's a cancer on the cityand a threat to us all, and it's time for the city to do somethingabout it."). This June 2018 op-ed in The Oregonian provides astriking example of this phenomenon. See id. The authors note that theyhave "all worked in homeless advocacy or other progressivecauses" before embarking on a critique of "predatoryhomeless" people and "over-tolerant" policing in theliberal mecca of Portland. Id. I don't mean to diminish the impactof crime on communities, but, one key mistake of the exceptionalist moveis to assume that this one class of crime or one class of defendants issomehow different--or, more pointedly, that many other people don'talso experience the externalities of the effects of criminal conduct.Accepting one of these narratives or arguments effectively opens thefloor to others, inviting an approach to criminal justice reform thateither: (1) is remarkably narrow in scope, focusing only on criminalconduct that manages to harm or offend almost no one; or (2) a sort ofelitist criminal justice reform that grants voice or veto power tovictims or third parties with political clout, but none to victims orthird parties with no such influence.

(286) See, e.g., Amna A. Akbar, Toward a Radical Imagination ofLaw, 93 N.Y.U. L. REV. 405, 424 (2018) (advocating for interventions inthe criminal system that "expand[] the frame beyond policeviolence, and even criminal justice institutions, to the interlockingset of current and historical systems that propel and draw fromanti-Black racism"); Butler, supra note 151, at 2183; Dorothy E.Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw.U. L. REV. 1597, 1604-05 (2017) ("[Criminal legal] institutionsenforce an undemocratic racial caste system originating in slavery.Making criminal law democratic, then, requires something far moreradical than reducing bias or increasing inclusion in thisantidemocratic system. Democratizing criminal law requires dismantlingits anti-democratic aspects altogether and reconstituting the criminaljustice system without them.").

(287) See, e.g., United States v. Moore, 851 F.3d 666, 676 (7thCir. 2017) (Posner, J., dissenting); Todd R. Clear, The Effects of HighImprisonment Rates on Communities, 37 CRIME & JUST. 97, 125 (2008)("The problem of mass incarceration is entirely produced by thesimple mathematics of two pressure points-how many people enter prisonand how long they stay there."); Timothy W. Floyd, Steven'sChoice, 10 OHIO ST. J. CRIM. L. 203, 203 (2012) ("Although prisonsare a necessary evil, we imprison far too many people in our society,and for far too long.").

(288) See generally Levin, supra note 1 (describing these twocompeting theories of "mass incarceration" and criminaljustice reform).

(289) See supra notes 239-243 and accompanying text.

(290) Cf. Benjamin Levin, Values and Assumptions in CriminalAdjudication, 129HARV. L. REV. F. 379, 380 (2016) ("To the extentour criminal justice system already suffers from the assumptions andbiases of judges and other official actors, granting those same actorsthe ability to interpret a wealth of data or 'facts' need notdictate a move toward greater justice or greater accuracy.").

(291) Examples include intimate-partner violence, sexual violence,hate crimes, and other areas where the pro-criminalization positionrests on empowering an otherwise disempowered victim. See generallyAharonson, supra note 201.

(292) See, e.g., Max Weber, Politics as a Vocation, in FROM MAXWEBER: ESSAYS IN SOCIOLOGY 77, 78 (H.H. Gerth & C. Wright Millseds., 2001) ("[T]he modern state is a compulsory association whichorganizes domination. It has been successful in seeking to monopolizethe legitimate use of physical force as a means of domination within aterritory."); White, supra note 142, at 786 ("Behind thefacade of justifications, the criminal justice system is an institutionof social control oriented to the management of dysfunctions inherent incapitalist society--unemployment, poverty, and the like.").

(293) See, e.g., STUART HALL ET AL., POLICING THE CRISIS: MUGGING,THE STATE, AND LAW AND ORDER 192 (1978) ("[I]n a class society,based on the needs of capital and the protection of private property,the poor and the propertyless are always in some sense on 'thewrong side of the law', whether they actually transgress it ornot... All crime control... is an aspect of that larger and widerexercise of 'social authority'; and in class societies thatwill inevitably mean the social authority exerted by the powerful andthe propertied over the powerless and the propertyless."); RUTHWILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND OPPOSITIONIN GLOBALIZING CALIFORNIA 85-86 (2007); NICOLA LACEY, THEPRISONERS' DILEMMA 170-73 (2008); WACQUANT, supra note 12, at 1-3;Aziza Ahmed, Adjudicating Risk: AIDS, Crime, and Culpability, 2016 Wis.L. REV. 627, 630(2016).

(294) Cf. RANDALL KENNEDY, RACE, CRIME AND THE LAW (1997) (tracingthe underenforcement of crimes against black defendants). But see PaulButler, (Color) Blind Faith: The Tragedy of Race, Crime, and the Law,111 HARV. L. REV. 1270 (1998) (critiquing the focus onunderenforcement).

(295) See generally Benjamin Levin, De-Naturalizing Criminal Law:Of Public Perceptions and Procedural Protections, 76 ALA. L. REV. 1777(2013) (describing the relationship between this framing and the rise of"law and order" politics).

(296) See Sacks, supra note 266 (quoting Senator Warren as statingon the Senate floor: "To anyone in Congress who thinks they cansimply talk tough on crime and then vote to make it even harder to crackdown on corporate criminals, hear this: I promise you-I promise you-theAmerican people are watching ... And they will remember.").Notably, spokespeople for President Obama voiced these sentiments,appealing not just to concerns about white-collar crime, but to fear ofterrorism and other targets common in the parlance of tough-on-crimepolitics. See Zach Carter, White House Comes Out Against Effort to BlockWhite-Collar Crime Prosecutions, HUFFINGTON POST (Nov. 19, 2015), athttps://www.huffingtonpost.com/entry/white-collar-crime-white-house-response_us_564dd06be4b00b7997f95240 [http://perma.cc/M6RS-6DZ7] (quoting aWhitehouse spokesperson: "If the bill became law, a terrorist couldonly be found guilty for using a weapon of mass destruction if hespecifically knew his victims were going to be U.S. nationals, a killercould only be found guilty of certain firearm crimes if he knew the guntraveled in interstate commerce, and a white-collar criminal could onlybe found guilty of bank fraud if he knew he was robbing a bank that wasFDIC-insured").

(297) See supra notes 196-198 and accompanying text.

(298) Stuntz, supra note 6102, at 507.

(299) See, e.g., John Ehrett, Public Choice and the MandatoryMinimum Temptation, 35 YALE L. & POL'Y REV. 603, 610 (2017)(describing the move to embrace mandatory minimum prison sentences forrape in California); Deborah Tuerkheimer, Criminal Justice and theMattering of Lives, 116 MICH. L. REV. 1145, 1156-57 (2018) (critiquingunderenforcement of rape law and arguing that more robust enforcementshould be a component of criminal justice reform).

(300) For historical work that both contributes to and complicatesthese narratives, see, e.g., Carolyn B. Ramsey, Domestic Violence andState Intervention in the American West and Australia, 1860-1930, 86IND. L.J. 185 (2011); Carolyn B. Ramsey, The Exit Myth: Family Law,Gender Roles, and Changing Attitudes Toward Female Victims of DomesticViolence, 20 MICH. J. GENDER & L. 1 (2013).

(301) See, e.g., Dan M. Kahan, The Secret Ambition of Deterrence,113HARV. L. REV. 413, 462-63 (1999) (tracking debates about theapplication of hate crime statutes); Muneer I. Ahmad, A Rage Shared byLaw: Post-September 11 Racial Violence as Crimes of Passion, 92 CALIF.L. REV. 1259, 1294 (2004) (advocating for an expansive vision of"hate crimes" to address violence against Muslim Americans andArab Americans in the wake of 9/11); Paula C. Johnson, The SocialConstruction of Identity in Criminal Cases: Cinema Verite and thePedagogy of Vincent Chin, 1 MICH. J. RACE & L. 347, 486 (1996)("Hate crime legislation is an important effort toward the publicapprobation of bias-motivated injuries, provided the necessarywillingness by law enforcement agencies is forthcoming.");Frederick M. Lawrence, The Punishment of Hate: Toward A Normative Theoryof Bias-Motivated Crimes, 93 MICH. L. REV. 320, 381 (1994):

Bias crime laws ought to single out criminal conduct that ismotivated by racial animus. Discriminatory selection of a victim willordinarily be part of racial animus. Indeed, the proof of animus in theprosecution of a bias crime will likely begin with evidence relating tovictim selection. Elements of proof, however, must not be confused withthe gravamen of the crime. The gravamen of a bias crime is the animus ofthe accused.

Id. But see ADLER, supra note 14 (critiquing this model of dealingwith violence against queer victims).

(302) See, e.g., Ehrett, supra note 299 (tracking the punitiveresponse to the relatively short sentence for sexual offenses committedby former Stanford University swimmer Brock Turner); Aris Folley,Protesters Chant 'Lock Him Up!' as Manafort Headed into Court,THE HILL (June 15, 2018),http://thehill.com/blogs/blog-briefing-room/news/392486-protesters-chant-lock-him-up-as-manafort-heads-into-court [http://perma.cc/D9E8-ARBV].

(303) See supra notes 261-264 and accompanying text.

(304) See, e.g., Terri Gerstein & David Seligman, A Response to"Rethinking Wage Theft Criminalization", ONLABOR (Apr. 20,2018), https://onlabor.org/a-response-to-rethinking-wage-theft-criminalization/ [http://perma.cc/9HQV-DJJ4] (arguing that prosecutors should betrusted to exercise discretion appropriately in the context of wagetheft cases and stating that: "While we of course appreciate thedeep structural flaws of our criminal justice system, we've seenhow important a tool the criminal law can be in protecting workers fromwage theft, and we don't think that bringing the criminal law tobear on predatory employers who take advantage of vulnerable workersexacerbates the injustices of our criminal justice system."); TerriGerstein, Stealing From Workers Is a Crime. Why Don't MoreProsecutors See It That Way?, THE NATION (May 24, 2018),https://www.thenation.com/article/stealing-from-workers-is-a-crime-why-dont-prosecutors-see-it-that-way/ [http://perma.cc/4YLM-R3JA] (arguingthat criminal justice reform-oriented voters should vote to encouragemore aggressive prosecutions of white-collar crime). But see Ben Levin,Rethinking Wage Theft Criminalization, ONLABOR (Apr. 13, 2018),https://onlabor.org/rethinking-wage-theft-criminalization/[http://perma.cc/2274-B2WD] (critiquing this argument); Ben Levin,Prosecutorial Power, Prisons, and the Problem with Wage TheftCriminalization: A Reply, ONLABOR (Apr. 30, 2018),https://onlabor.org/prosecutorial-power-prisons-and-the-problem-with-wage-theft-criminalization-a-reply/ [http://perma.cc/6HFX-HYGB] (same).

(305) See, e.g., GOTTSCHALK, supra note 135, at 165-69 (critiquingthis position); FORMAN, supra note 12, at 221-22 (same); PFAFF, supranote 35, at 8 (same).

(306) See, e.g., Johnson v. United States, 135 S. Ct. 2551 (2015)(debating the meaning of "violence"); PFAFF, supra note 35, at15-16, 21 (collecting prison data); Ristroph, supra note 196 (describingthe fuzzy line between violent and nonviolent crime).

(307) See generally PFAFF, supra note 35 (critiquing this flawed"standard story" of criminal justice reform).

(308) Cf. Jeffrie G. Murphy, Marxism and Retributivism, 2 PHIL.& PUB. AFF. 217 (1973) (arguing that pervasive inequality underminesthe logic of retributivism).

(309) See, e.g., ANDREW HACKER, THE NEW YORKERS: A PROFILE OF ANAMERICAN METROPOLIS 107(1975):

In all probability, muggers take much less from individuals than docorporate ... and white-collar criminals. Many executives swindle moreon their taxes and expense accounts than the average addict steals in ayear. Unfortunately, concentrating on street crime provides yet anotheropportunity for picking on the poor.

Id.

(310) Cf. Stuart P. Green & Matthew B. Kugler, PublicPerceptions of White Collar Crime Culpability: Bribery, Perjury, andFraud, 75 LAW & CONTEM. PROBS. 33, 33 (2012):

We are accustomed to thinking of 'crime' as involving themost blameworthy and antisocial sorts of conduct in which citizens canengage, conduct that is clearly and unambiguously more wrongful thanconduct that is not criminal. But the reality is more complex,especially when we look at certain kinds of'white collar'behavior.

Id.

(311) See Levin, supra note 304.

(312) See, e.g., Liat Ben-Moshe, The Tension Between Abolition andReform, in THE END OF PRISONS: REFLECTIONS FROM THE DECARCERATIONMOVEMENT 90 (Mechthild E. Nagel & Anthony J. Nocella II eds., 2013);Jim Thomas and Sharon Boehlefeld. Rethinking Abolitionism: What Do We DoWith Henry?, in WE WHO WOULD TAKE NO PRISONERS: SELECTIONS FROM THEFIFTH INTERNATIONAL CONFERENCE ON PENAL ABOLITION (Brian Maclean &Harold Pepinsky eds., 1993); McLeod, supra note 251, at 1171.

(313) For a fascinating examination of the "dangerousfew" and the harms of white-collar criminality, see ThomasFrampton, The Dangerous Few (unpublished manuscript; draft on file withauthor).

(314) See, e.g., FORMAN, supra note 12, at 221; GOTTSCHALK, supranote 135, at 165-69.

(315) See generally PFAFF, supra note 35.

(316) See generally FORMAN, supra note 12.

(317) See generally FORMAN, supra note 12; see also AFTER THE WARON CRIME: RACE, DEMOCRACY, AND A NEW RECONSTRUCTION (Mary LouiseFrampton, et al., eds. 2008) (describing the consequences of thosecriminal models of regulation).

(318) To be clear, rejecting any exceptionalism might well lead toan abolitionist stance not necessarily shared by many of the critics andcommentators. Or, at least, it might require scholars to hone in onpoints of logical or theoretical inconsistency in their critiques of thecriminal system.

(319) See Levin, supra note 1, at 265-74 (describing this approachas one of the two primary impulses in criminal justice reform).

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