There has come to be some consensus amongst political scientists and legal theorists that a major source of over-incarceration in the United States is (mostly county) prosecutors filing a significantly increased number of charges against individual arrestees (e.g., committing fraud means getting hit with the charges of mail fraud, bank fraud, wire fraud, computer fraud, and more). This practice is known as “charge-stacking” (see here and here, for example). The basic idea is to guarantee conviction on at least some lesser charges: Risk-averse defendants cop to a lesser plea, even if they could have defended well against the most significant charges. So most people who are prosecuted get convicted on some charges. But so what? Why is this practice bad? I’ve been thinking that the answer to this question lies primarily in the practice’s running roughshod over what we take to be some crucial features of interpersonal moral agency.

I’ve argued here and here that criminal and interpersonal moral responsibility are very different beasts, contrary to most other theorists, who think the former is a subset of the latter. I think charge-stacking brings out another crucial difference between the two that comes out of an examination of the evolved nature of mens rea.  The evolution has occurred within the last 120 years in the criminal law, and involved a transition from Motive Mens Rea to Elements Mens Rea.

The former focused on the actual motives of the defendant, so that one could be found guilty only if one had performed a criminal act with an evil motive, i.e., a “vicious will” (Blackstone) or an “evil mind” (Bishop). Defending against a charge, then, required showing a benign quality of will, e.g., that one acted instead out of self-defense, duress, or insanity. This is actually quite similar to what goes on in interpersonal moral responsibility, as I and many others have argued (Strawson 1962, Scanlon 1988, McKenna 2012, Talbert 2012, Arpaly and Schroeder 2014, Shoemaker 2015). When we blame one another in our interpersonal lives, we’re typically doing so in virtue of of what we take to be the blamed agent’s poor quality of will.

But Motive Mens Rea transmogrified into Elements Mens Rea in the criminal law sometime around the end of the 19th century, and it came to be focused solely on four mental features relevant to establishing a “guilty mind”: intent, foresight, disregard of risk, and negligence. Notice that motive disappeared. All that came to matter was essentially that one aimed at some action (or knew about, or foresaw, or should have known), not why one aimed at it. This version of mens rea is what is enshrined in the Model Penal Code.

There were very good reasons for this transition, both pragmatic and theoretical. The main one is that it’s extremely hard for prosecutors to suss out motives, and so becomes extremely hard for them to successfully convict anyone, opening the door to crime with impunity. But a major effect was that it also opened the door for charge-stacking: if we are focused only on the states of mind producing the criminal act, and not on the faulty motives for the production of the act, then we are free to describe “the act” in numerous ways, and so people could be guilty of all of them. That is to say, one can read off of intentional behavior all sorts of criminal descriptions. If I sell you drugs voluntarily, I intentionally sold drugs, but also had possession with intent to distribute, intent to distribute within a school zone, and so forth. In interpersonal moral responsibility, though, where the relevant target is the offender’s attitude toward others, actions are not the main target, and so multiple descriptions of acts performed are blocked. That is to say, if I uttered my insult in order to hurt you, and we prosecute the “in order to hurt” attitude, there aren’t other actions (speaking too loudly, hurting your ears, conjuring up traumatic memories) for which I could be also be the apt target of blame.

This evolution of mens rea means we are not treating criminal defendants as fellow moral agents, which is what we at least aim to do in our interpersonal lives. On its face, this seems bad. The criminal justice system is thus faced with a dilemma: either return to Motive Mens Rea, restoring moral agency but at great pragmatic cost (hard to gain any prosecutorial success), or continue down the present path with Elements Mens Rea, at the cost of significantly immoral treatment of our fellows.  I don’t know what the right answer is.

13 Replies to “Over-Incarceration, Charge-Stacking, and Mens Rea

  1. Are you thinking that one might have a guilty mind with respect to selling drugs but not to possessing drugs? And this is because the key description on Motive Mens Rea is in terms of one’s attitude towards others. Perhaps I could use more help seeing how that blocks stacking charges. The focus on my attitudes towards others points, perhaps, towards selling drugs to them but not toward possession? Indeed, perhaps on a Motive Mens Rea approach, could possession be criminal given that it does not obviously involve any attitudes towards others? Alternatively, one might think my attitude towards others is that it is permissible to possess drugs around them. On that view, stacking still seems possible.

  2. The drug case may not be a good one insofar as it doesn’t seem to involve much (if any) of the “vicious” or “evil” will that people were objecting to in the Motive Mens Rea days. So take fraud. From this paper (, “For fraud, a federal prosecutor may combine mail fraud and wire fraud statutes with more specific crimes for health care fraud, bank fraud, computer fraud, etc.” If nabbing you for fraud on Elements Mens Rea involves intent, reasonable foresight, etc., then these are all descriptions of the action that apply to you, given that we are only really focused on *what you did*. Motive Mens Rea, though, appeals to what your reasons were (and so, as Scanlon puts it, the *meaning* of your action to others). And it seems that these restrict the relevant descriptions of the action in a way that Elements Mens Rea doesn’t. Or perhaps here’s a better way to put it: I meant you harm in defrauding you, but it’s incorrect to say that I meant to harm you via defrauding you by bank, computer, health care, wire, and so forth. That I may, as a corollary, merely view these things as permissible shouldn’t be prosecutable.

  3. Might the following be a way to reconcile Element Mens Rea with prevailing quality of will accounts of moral responsibility: Proving element mens rea may suffice to establish a legal presumption in favor of morally bad quality of will. It is then incumbent upon the defendant to show a valid excuse or justification to avoid criminal liability. So, e.g., if someone drives 120 mph down the interstate while disregarding the risk he is creating for others (and which he is aware he is creating for others), then absent some special story this seems to create a strong presumption that the driver has an objectionable quality of will. I believe Duff has argued along these lines… BTW, I do (despite this comment) very much agree that criminal responsibility is not a subset of moral responsibility, but that’s a story for another day. And, PS, thanks for the work on the relaunch of PeaSoup.

  4. If elements mens rea means that we are not treating criminal defendants as moral agents, then that might be objectionable quite apart from charge stacking. But when it comes to charge stacking, there might be routes of reform other than wholesale reform of mens rea. For instance, a prosecutor could adopt a policy of only charging the most serious offense that could be supported by the facts. Or, more generally, adopt a set of rules that would determine how to select a unique charge among all the possible charges that could be brought in commonly arising situations. This kind of institutional approach would, admittedly, be easier to envision in systems where prosecutors are subject to some form of centralized bureaucratic authority. But it wouldn’t require a shift in mens rea law, just greater oversight of charging practices.

    Also, should we distinguish between two types of “charge stacking”? First, there are cases in which the prosecutor simply enumerates all the various lesser included offenses that might apply to a person. E.g., A breaks B’s arm, and the prosecutor charges both assault causing bodily harm and simple assault. The difference between these two charges is one of an actus reus element (causing bodily harm), not a mens rea one. And in any case, the accused could be convicted of the lesser included offense even if the prosecutor doesn’t break it out into a separate count of the indictment (suppose the prosecutor proves assault, but fails to prove that it caused the injury), so breaking it out as a separate charge seems to be harmless.

    Second, there are cases where there are different types of criminal acts that would apply to a single transaction – for instance, if A and B are caught distributing drugs, they could potentially be charged with conspiracy to commit an offence, gun possession, drug possession and money laundering. These are not merely specifications of a more general type of offense, and so would seem to be the more problematic form of charge stacking.

    But consider a case in which A’s motive is to harm B, and she does so by (in the course of one confrontation) breaking his arm and burning down his house. Here, A’s motive is unitary, but it would seem plausible to say that she’s wronged B in two different ways, and hence should be prosecuted for both of those different types of wrongs. But this seems hard to distinguish, at a general level, from the second, more problematic, form of charge stacking. Or, at least, doing so would require a theory of how many different kinds of wrongs there are rather than, or in addition to, an account of the different ways in which one’s motives might be poor.

  5. Thanks for this, Sean. I’m not averse to this kind of move (it’s suggested in Sobel’s comment too), but I’m not sure it cuts off the possibility of charge-stacking. After all, if we can presume you disregarded us in defrauding us, then why not also presume disregard w/r/t mail fraud, wire fraud, computer fraud, etc.? That is, allowing the Elements Mens Rea to persist doesn’t seem to leave us a way to restrict the relevant bad quality of will.

  6. Right, I agree on that point. But on charge stacking issue (which I agree is really really a problem) I think the source of the problem has more to do with the explosion of overlapping criminal statutes and the shift of power/discretion to prosecutors that has accompanied/enabled the growth of plea bargaining – not with the evolution of mens rea.

  7. This is really thoughtful, and I’m not quite sure what to say on a first pass. One thing is that there is real pressure in the law to deter a huge variety of specific actions, so that people feel protected from all kinds of invasions of bodily and psychological integrity. But in interpersonal morality, there’s not that kind of pressure, as what matters to us is other people’s quality of will with respect to us (that’s why condescension, e.g., is blameworthy). So in the last case above, our interpersonal response would be blame for the general ill will, not a different attitude or instance of blame for the arm-breaking and the house-burning. This is why moral theory that focuses exclusively on the wrong-making feature of specific actions is too legalistic, for me, if we want to tie wronging to blameworthiness (and maybe we don’t). At any rate, I agree that there is something important about being able to prosecute separately in this last case, despite there not being a straightforward way to do so on Motive Mens Rea.

    On the earlier point about other possible institutional changes, do you think there’d be a principled justification for doing so (as if the law has principled justifications for its changes!)? That is, on what grounds (other than pragmatic) should we make the changes in question (without addressing the mens rea issue)?

  8. I obviously think that the evolution in mens rea is the enabling ground of this explosion and shift, though. To address the problem, address the root.

  9. I’m thinking there are tons of problems with the aspects of the legal system Shoe outlined. Prosecutors stack charges in hopes of scaring people into taking a plea, penalties for crimes are excessive and not proportionate and this gives prosecutors a better ability to threaten defendants to take a plea, blacks are disproportiately the people charged with crimes, the poor are less well protected from such bullying by prosecutors, and prosecutors are more likely to seek harsher penalties if the defendant is black, etc.

    Many of these problems will obviously not go away if we adopt Shoe’s proposal. And I don’t hear him denying that. As I hear the proposal, this would but one part of a multi-level plan to combat the overall problem.

  10. Ok that helps. I guess that for reasons Sobel gave in his initial reply, I am skeptical that motive mens rea blocks charge stacking. If I understand your reply to him, it involves an appeal both to motive means rea and also to a requirement of a tight correspondence between mens rea and any act description which is a basis for a charge. I suspect that the real damage is done by not requiring correspondence, not by the motive/element shift.

    For example, to be convicted for selling drugs in a school zone, prosecutors do not even need to prove element mens rea with respoect to school zone. School zone is a ‘strict liability element.

    But shifting to motive mens rea doesn’t solve this kind of problem unless one also insists on a tight correspondence. I would be interested to know whether the historical shift from motive to element mens rea was accompanied by a slackening of correspondence requirements.

  11. Huh, looks like Sean was afforded the very last reply in that exchange, as WordPress isn’t giving me the option of replying again. At any rate, Sean, hey! I’m down here! Yeah, I’ll wait.

    As Sobel later notes, there could be many reasons for these bad things, and I’m plumping against (or just pointing out) the mens rea stuff as a fundamental source of the problem. But the “in a school zone” element you pointed to is indeed strict liability, and that’s a huge category of laws that doesn’t require mens rea at all (at least w/r/t the actus reus defining the crime as such). That in itself is a real problem, I think, and a huge step away from our interpersonal moral responsibility exchanges. Indeed, there’s finally a movement afoot in Congress to do away with these sorts of non-mens-rea aspects of the criminal law for some offenses, but it is, surprisingly, liberals who are resisting it, as they think it will undermine corporate criminal prosecutions (where there’s no “mens” to be “rea”).

    But when it comes to genuine mens rea elements, citing my reasons for doing what I did does restrict the relevant descriptions of “what I did,” it seems to me. “No, I didn’t think the wire fraud was worth doing, only the mail fraud!” That’s what enables the “tight correspondence,” as you put it, between the mens rea and the action that could block charge-stacking. The loose correspondence lagged, historically, behind the evolution in mens rea (indeed, it didn’t really become a factor until the 80’s, I think). There were other contextual features that activated the loose correspondence as well, but again, I’m thinking it’s the mens rea issue that enabled this.

  12. Treating like cases alike might be a covering principle for regulating charging discretion toward ensuring that similar crimes, committed under similar circumstances, net similar charges. Of course, like cases could be treated alike in that they all face similarly stacked charges. If you’re right that moral agency requires attending more to a person’s motives than is typically the case with elements mens rea, then that would be a good candidate for an official policy against charge stacking. Beyond that, I suspect we’d have to get into a consideration about the relative value of a guilty plea versus a contested trial, since much of the point of charge stacking is – as you point out – to induce pleas.

Comments are closed.