There are more than 2 million people imprisoned in the U.S. today. One hundred years from now, historians are likely to be fascinated by this carceral state: How did we get here? Are there better options for society? Some of the answers—or, at least, possible alternatives—may lie in an examination of medieval England.
As a Harvard undergrad, Assistant Professor Elizabeth Papp Kamali ’07 fell in love with medieval legal history. After graduating from HLS, she got her Ph.D. in history at the University of Michigan, then joined the HLS faculty in 2015. Kamali’s first book, “Felony and the Guilty Mind in Medieval England,” which is forthcoming from Cambridge University Press, examines how the concept of mens rea—that the accused person acted intentionally when committing a crime—informed determinations of criminal responsibility in the first two centuries of the criminal trial jury.
By the early 13th century, England had replaced trial by ordeal with jury trials for felony cases. Kamali is interested in how juries sorted the guilty from the innocent. The terse nature of medieval English legal records has led some to assume there was a strict liability approach in criminal law—if jurors believed the accused did the deed, then he was guilty—but Kamali says this conclusion overlooks the very high rate of acquittals and pardons in medieval England, plus the presence of other escape valves such as sanctuary and benefit of clergy, which exempted English clergy from the jurisdiction of civil courts. Of the cases that made it to trial, most ended in acquittal or pardon. What explains this apparent leniency among jurors?
After extensive research in legal, religious, and cultural records, Kamali concludes, “Mens rea was central to the process of reaching a felony verdict.” Medieval theology emphasized that mind and will were central to the concept of sin. Influenced by church teachings, jurors focused on state of mind and intention in understanding sin and wrongful behavior. They also took a sophisticated approach to dealing with mentally ill offenders, who were typically eligible for pardon. “At the time that England adopted trial by jury, England was steeped in a theological discourse about how mind and emotions affect individuals’ actions in the world,” Kamali observes. “Very prominent was the idea that to be truly guilty, one needs to have acted with intentionality.”
“The medieval approach to criminal responsibility acknowledged the possibility of redemption.”
Does this have practical application today? Kamali says this history is relevant not only to understanding the origins of our current system but also in imagining possible responses to mass incarceration and other troubles plaguing the criminal justice system. “What is lost when we dispose of most cases through plea bargaining,” Kamali asks, “rather than compelling a jury to think about whether this person hauled before them is guilty or merits the sort of punishment the law has designated? In this age of mass incarceration, what kind of system can we envision going forward? I don’t know that the answer is to return to more jury trials. By looking back at the history of the jury, we can at least tackle head-on such issues as what constitutes criminal responsibility, and what factors we should weigh before incarcerating someone.”
Medieval history also offers a different way to think about our treatment of felons, Kamali adds. “The medieval approach to criminal responsibility acknowledged the possibility of redemption, whereas today we tend to think, Once a felon, always a felon, when imposing lateral consequences that can be lifelong—such as loss of the right to vote or of the ability to access public housing or government loans.”
Her work, she says, “might remind us that in the deep historical past of the common law tradition, mind was central to our understanding of what constituted criminal responsibility. Is that still true? For example, with a drug possession case, do we really ask, ‘What state of mind did this person have?’ I don’t want to romanticize the medieval past, in which felony was a capital offense, and if you stole a sheep, you could hang at the gallows. But we might think actively about the role that mind should play in adjudicating criminal cases; if it’s not playing as key a role today as it did in the past, should we change that? If we did change that, how would that affect mass incarceration?”
In teaching history-based criminal law, both in the 1L course and in a seminar on mind and criminal responsibility, Kamali invites students to think through current societal issues, including abuses of prosecutorial discretion, mass incarceration, and police shootings. “Not every student is planning to practice criminal law,” she notes, “but these are some of the most pressing issues of our day, issues that students can engage with not only as future legal practitioners but also as informed citizens.”
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