Default Culpability Requirements: The Model Penal Code and Beyond

This Article examines section 2.02(3) of the Model Penal Code, both as proposed by the ALI and as modified by MPC states, and recommends new default culpability rules to replace it. The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section 2.02(3), courts often interpret an offense’s silence to impose strict liability.Section 2.02(3) has had little effect to date, but not because courts have ignored it. Rather, Section 2.02(3) has yet to be fully adopted even in Model Penal Code states. Reviewing the law in the 25 states with culpability provisions influenced by the Code, this Article finds that the overwhelming majority of jurisdictions have deviated from Section 2.02(3) in ways that undermine the Code’s culpability scheme. The Article concludes by recommending new default culpability rules that improve on Section 2.02(3), prevent the problems experienced in Model Penal Code states, and establish a strong presumption of recklessness that works for real-world statutes