- Published: November 19, 2012
The Model Penal Code (MPC) has been used since 1962 to divide potential culpable mental states into 4 divisions: 1) purposeful; 2) knowing; 3) reckless; 4) negligent. In New York University Law Review, Francis Shen provide evidence based on empirical studies that "most of the mens rea assumptions embedded in the MPC are reasonably accurate as a behavioral matter." However, people "failed to distinguish reliably between knowing and reckless conduct", which can have significant implications in the sentencing for certain crimes, especially homicide. Typically, for serious crimes, such as a homicide, the "differing degrees make a purposeful act more serious than a knowing act, a knowing act more serious than a reckless act, and so on." The idea of the MPC is that an average person "would punish these four categories in the manner corresponding to the MPC hierarchy." The MPC has not previously undergone any empirical studies to test its effectiveness and reliability among jurors, which is quite surprising given that it has been used for the past 50 years. Subjects performed much better than chance at "recognizing and appropriately punishing all levels of culpability, except knowing and recklessness, even without jury instructions", which is a good outcome, given that no previous rigorous testing had really been done before. However, in homicide, the very worst case scenario of incorrect differentiation between knowing and recklessness is the difference between a "forty-eight-year prison sentence and probation." "The very smallest this difference could be is ten years-the difference between the minimum of sixteen years for a knowing homicide and the maximum of six years for a reckless one." This finding was really shocking to me, especially since people are so bad at diffentiating between the two. The role neuroscience plays here is in understanding why people make the mistakes they do in these cases, and what can be done, if anything, to help remove this bias from juries. Shen proposes at the end of the paper, "If none of these less drastic solutions help, perhaps we should consider abolishing the distinction between knowing and recklessness, at least in the many states where that distinction takes on central significance in determining the degrees of homicide." I agree with this sentiment, as the risk of giving people different punishments on meaningless distinctions is too high.
References: Shen, F. (2011). Sorting guilty minds. New York University Law Review,, 86, Retrieved fromhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1746107