Law Commons^™

Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto

St. Mary's Law Journal

Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.

When it decided United States v. Nora and reversed the …

Is Felony Murder The New Depraved Heart Murder: Considering The Appropriate Punishment For Drunken Drivers Who Kill, Dora W. Klein

Faculty Articles

In recognition of the increasing use of felony-murder statutes to prosecute drunken drivers who kill, this Article considers various criticisms and defenses of the felony-murder rule as they apply specifically to felony DWI cases. Part II of this Article discusses several recent precedent setting cases in which drunken drivers who killed were prosecuted under felony murder statutes. Part III explores whether such prosecutions are proper, given the existence of special narrower vehicular manslaughter provisions that a legislature might have intended to be the sole means of prosecuting drunk drivers who kill. Part IV discusses three particular limiting doctrines-merger, inherent dangerousness, …

Prosecuting The Undead: Federal Criminal Law In A World Of Zombies, Michael L. Smith

Faculty Articles

Adam Chodorow's recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the looming zombie apocalypse. Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the undead outnumber the taxpaying living. In this Essay, I argue that while tax law may be ill suited to address the zombie apocalypse, federal criminal law offers an alternative approach to solving the problems that Chodorow identifies. In fact, the only plausible explanation for the existence of seemingly pointless features of federal criminal law is that these features are precautions for this …

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …

Rehabilitating Mental Disorder Evidence After Clark C. Arizona: Of Burdens, Presumptions, And The Rights To Raise Reasonable Doubt, Dora W. Klein

Faculty Articles

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof.

In the recent case of Clark v. Arizona, the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. In Arizona law, mental disorder evidence is inadmissible for the purpose of disproving …

The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey

Faculty Articles

Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.

In Texas, there seems to be a trend to punish actors for the harm they …