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41 Suffolk U. L. Rev. 615 (2007-2008)
Applying the Presumption of Mens Rea to a Sentencing Factor: Does 18 U.S.C. 924(c)(1)(A)(iii) Penalize the Accidental Discharge of a Firearm

handle is hein.journals/sufflr41 and id is 631 raw text is: Applying the Presumption of Mens Rea to a Sentencing Factor:
Does 18 U.S.C. § 924(c)(1)(A)(iii) Penalize the Accidental
Discharge of a Firearm?
The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good
and evil. A relation between some mental element and punishment for a
harmful act is almost as instinctive as the child's familiar exculpatory 'But I
didn 't mean to,' and has afforded the rational basis for a tardy and unfinished
substitution of deterrence and reformation in place of retaliation and
vengeance as the motivation for public prosecution.
It is well settled that the presumption of mens rea in criminal law applies to
federal criminal statutes.2         It remains     debatable, however, whether           this
presumption applies to sentencing provisions contained within federal criminal
statutes.3 Circuit courts have confronted this issue when deciding whether trial
courts should impose the sentencing enhancement for discharging a firearm
contained in 18 U.S.C. § 924(c)(1)(A) on a defendant who has accidentally
discharged a firearm.4
1. Morissette v. United States, 342 U.S. 246, 250-51 (1952) (footnotes omitted) (examining history of
presumption of mens rea in criminal law).
2 See United States v. X-Citement Video, Inc, 513 U.S. 64, 70-72 (1994) (applying presumption of
mens rea to Protection of Children Against Sexual Exploitation Act); Staples v. United States, 511 U.S. 600.
618 (1994) (holding presumption of mens rea governs interpretation of National Firearms Act criminalizing
possession of unregistered machinegun); Liparota v. United States, 471 U.S. 419. 425-26 (1985) (applying
presumption of mens rea to federal statute prohibiting certain actions involving food stamps); Morissette, 342
U.S. at 250-51 (applying common law presumption of mens rea to federal embezzlement statute); see also
United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38 (1978) (applying presumption against strict liability
crimes to Sherman Act offence). In Gypsum, the Court noted that far more than the simple omission of the
appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.
Gypsum, 438 U.S. at 438. Mens rea literally means guilty mind, but the term has taken on several different
meanings in criminal law. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 115-17 (3d ed. 2001)
(explaining ambiguity and variant meanings of term mens rea). In this Note, mens rea refers to a morally
blameworthy state of mind. See id. at 116-117 (defining broad definition of mens rea as culpable mental state).
3. See infra notes 152-154 and accompanying text (examining whether presumption of mens rea applies
to sentencing factors).
4. Compare United States v. Dean, No. 06-14918, 2008 WL 441602, at *4 (11th Cir. Feb. 20, 2008)
(concluding statute does not have separate mens rea requirement for discharge enhancement), and United
States v. Nava-Sotelo, 354 F.3d 1202, 1204 (10th Cir. 2003) (concluding statute imposes penalty for

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