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There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them. Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most part find it wanting. Then we turn to the constitutionality and wisdom of abolishing or limiting mens rea and legal insanity. We conclude that although it is probably constitutional to abolish legal insanity, robust doctrines of mens rea and the insanity defense itself must be maintained to insure that the criminal law imposes fair blame and punishment. We next canvas the alternatives to legal insanity, including the most contemporary, reasoned academic proposal, and find all insufficient to achieve justice. Finally, we respond to the increasing challenges to responsibility generated by new scientific findings about human behavior, especially by the new neuroscience, and suggest that these findings do not undermine core conceptions of personhood and responsibility.


mens rea, insanity, blame, punishment, responsibility

Publication Title

Journal of Criminal Law & Criminology

Publication Citation

97 J. Crim. L. & Criminology 1071 (2007)