Mens Rea & The Public

Document Type

Article

Publication Date

9-26-2026

Citation / Publisher Attribution

60 UC Davis Law Review __ (forthcoming 2026) 

Abstract

Mens rea lies at the heart of the criminal law. It limits both who we punish — only the blameworthy, not the morally innocent — and how severely we punish them. In the United States, mens rea policy is driven by the Model Penal Code’s mens rea hierarchy (MPC hierarchy), which bases criminal liability and punishment on subtle differences in risk awareness — knowledge, recklessness, and negligence. But does U.S. mens rea policy reflect the views of the public? This Article reports results from the first nationally representative effort to answer this question.

Our analysis of more than 6,000 survey responses offers the most detailed and statistically rigorous accounting to date of what the public thinks about mens rea. Our study reveals that public attitudes broadly reflect some aspects of current mens rea policy, conflict with others, and are more complex than criminal policymakers and scholars previously thought. Departing from the landmark study in our field, we find that the public punishes in ways that broadly align with the MPC hierarchy. But we also find that some mens rea distinctions have a comparatively greater impact on how people punish certain types of crime, and that subtle differences in offense structure can influence public mens rea decisions in complex ways. These and other surprising patterns of punishment contradict long-held scholarly assumptions about the universality of criminal law norms.

This new understanding of public attitudes has important implications for both criminal law and moral psychology. For policymakers and reformers, our study suggests that criminal punishment should more proportionately track differences in mens rea and illustrates how research on public attitudes might be used to lower sentences. For social scientists and criminal theorists, our study offers a more nuanced picture of lay moral judgment and uncovers unexpected ethical sensitivity in public punishment decisions. Our study also demonstrates the value of methodological refinement in experimental mens rea research, including the use of statistically representative participant pools and more realistic survey design.  All told, our study reveals how a more rigorous examination of public attitudes on mens rea can improve criminal policymaking and social science.

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