“Sorting Guilty Minds,” article co-authored by Owen Jones, cited in SCOTUS dissent

Jun 19, 2021

An NYU Law Review article, “Sorting Guilty Minds,” co-authored by Owen D. Jones with four colleagues, including Judge Morris B. Hoffman of Colorado’s Second Judicial Circuit; Francis X. Shen, a professor at the University of Minnesota Law School; and neuroscientists Joshua D. Greene of Harvard University and Rene Marois of Vanderbilt University, was cited in a dissenting opinion by Justice Brett Kavanaugh in Borden v. United States on June 10, 2021.

The question in Borden was whether a criminal offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act. The Act allows enhanced sentences after three prior convictions for a “violent felony [involving] physical force against the person of another.” The majority concluded that reckless mens rea was insufficient, holding that only convictions for violent felonies involving purposeful or knowing mens rea could qualify under the Act.

Justice Kavanaugh, writing for four justices in the dissent, argued that a prior conviction involving reckless mens rea should be sufficient to count toward the three-conviction tally. In his opinion, he cited “Sorting Guilty Minds” to support the proposition that the distinction between knowing and reckless mental states is one of degree, not kind.

“Sorting Guilty Minds” reported the results of five experiments supported by the MacArthur Foundation Research Network on Law and Neuroscience, which Jones directs, and included the finding that subjects mis-classify knowing and mental states between 50 and 60 percent of the time, even with the benefit of jury instructions that provide the legal definitions of those mental states.

Jones holds the Glenn M. Weaver, M.D. and Mary Ellen Weaver Chair in Law, Brain and Behavior and is a professor of law and of biological sciences at Vanderbilt University.


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