You can find detailed descriptions of these culpable mental states in the Model Penal Code, which the American Law Institute drafted in the 1960s as a model for states as they reformed their antiquated criminal laws. Many states adopted the Model Penal Code’s definitions of the four mental states required to prove criminal responsibility, which I paraphrase in the following list. In almost every criminal case, the jurors must find that the defendant committed the crime in one of these four ways:
Intentionally (or purposely): A person acts intentionally when she has the conscious objective of engaging in criminal conduct.
Knowingly: A person acts knowingly when she’s aware that her conduct is of a certain nature that is an element of the crime. (For example, a thief acts knowingly when she steals a TV, knowing that it belongs to someone else.)
Recklessly: A person acts recklessly when she consciously disregards a substantial and unjustifiable risk that a particular result will occur. The risk must be of such a nature and degree that disregard of the risk is a gross deviation from the standard of conduct that a law-abiding citizen would observe.
Negligently: A person acts negligently when she should be aware of a substantial and unjustifiable risk that a particular result will occur. The risk must be of such a nature and degree that her failure to perceive it is a gross deviation from the standard of conduct that a reasonable person would observe.
I list these mental states in order of responsibility, so a person who acts intentionally is usually held more accountable and, thus, punished more severely than a person who acts negligently.
Using homicide as an example (although this principle applies to many crimes), an intentional killing is murder and can result in a life sentence in prison or even a death sentence. A reckless killing may be considered murder in the second degree or manslaughter and results in a lesser sentence of 10 to 20 years. A negligent killing, such as when a drunk driver kills his own passenger in a crash, can result in 5 years or less in prison.
In rare circumstances, a jury can hold a person liable for a crime without proof of any of these culpable mental states, a situation called strict liability. A great example of strict liability has to do with the crime of driving under the influence of intoxicants. When it comes to driving under the influence, most states don’t require any proof that the offender acted intentionally, knowingly, recklessly, or negligently. The prosecutor just has to prove that the defendant drove while he was intoxicated. Although strict liability is somewhat common in civil law, it’s almost unheard of in criminal law, except for the crime of driving while intoxicated, because society doesn’t want to lock people up unless they have some moral responsibility for what they did.
Linking Criminal Behavior to Cultural Mores
In a democratic society, in which laws are passed by elected representatives (or even directly by citizens through public votes called initiatives), criminal laws generally reflect the values of that society. In this section, I explain the influence that society has on the development and implementation of criminal laws.
Understanding that crimes change over time
As society’s values change over time, the passage of new criminal laws and the repeal of old criminal laws reflect these changes. For example, until the early 1900s, you could legally possess and use both cocaine and marijuana in the United States. In 1914, Utah became the first state to criminalize marijuana. That same year, the federal government passed the Harrison Act, which treated cocaine like other illegal drugs, such as morphine and heroin. More recently, some states have legalized marijuana possession (although in 2020 it’s still illegal under federal law.)
In 1994, the federal government began requiring that convicted sex offenders register their addresses with their state government after their release from prison. As a result, the failure to register constituted a new crime. Thereafter, states began to enact laws requiring that the addresses of these sex offenders be made available to the public. These various state laws are known collectively as Megan’s Law, named after a 7-year-old girl who was raped and killed by a sex offender who lived across the street from her. Megan’s parents never even knew the sex offender was there.
Here’s another example of how the courts affect criminal law: In 1986, the U.S. Supreme Court ruled in Bowers v. Hardwick that Georgia state law could criminalize sexual acts between members of the same sex. However, in 2003 the U.S. Supreme Court in Lawrence v. Texas reversed itself, ruling that laws in Texas criminalizing sexual acts between persons of the same sex were unconstitutional, effectively repealing those laws. So you can see how laws can change with the times.
Recognizing the impact of location
The Lawrence v. Texas and Bowers v. Hardwick cases demonstrate how different cultural values across the United States manifest themselves in criminal laws. For instance, Texas and Georgia criminalized sodomy between consenting males even though such conduct was legal in many other states. On this topic, at least, you can reasonably conclude that the cultural values of Texas and Georgia probably differ from those of Massachusetts or Vermont.
Each state has its own electoral process and its own court system, so each state may develop laws (including criminal laws) that reflect the will and values of its people.
Outside of the United States, criminal laws are even more diverse, which demonstrate the dramatic cultural differences among different countries. For example, some Islamic countries, such as Iran and Saudi Arabia, follow a code of laws based on their religion, known as sharia law. Based on this law, these countries allow the death penalty for homosexual acts in some circumstances. Also under sharia law, someone guilty of a crime such as theft may be punished by imprisonment and by amputation of hands — if the person has a very serious criminal history. Clearly, the cultures — as well as some of the laws — of these countries differ greatly from those of the United States.
To show the diversity of laws among the 50 U.S. states, I present three states’ efforts to define the crime of theft:
California Penal Code Section 484 — Theft
Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money or property or obtains the labor or service of another, is guilty of theft.
New York Penal Law Section 155.05 — Larceny
A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
Louisiana Code Title 14 Section 67 — Theft
Theft is the misappropriation or taking of anything of value