Reluctant Wrongdoing, Intentional Wrongdoing, and the Case for Revising Criminal Law’s Mens Rea Hierarchy

This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional purpose-knowledge-recklessness-negligence (PKRN) mens rea hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. The Article critically rethinks the standard mens rea hierarchy and show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for non-intentional police homicides like Derek Chauvin’s killing of George Floyd, relative to reluctant purposeful defendants.