In confronting the system of federal crimes, no word has sown more confusion than "willfully." While the term appears in literally dozens of offenses in Titles 18 and 26 of the United States Code, its meaning may vary considerably. Moreover, willfulness may be added to a statutory offense definition by judicial decision or to the indictments' allegations by prosecutorial practice. However, the absence of a unitary judicial and legislative definition of willfulness is not a reason for throwing over well-established rules about criminal intent. Precision and differentiation, and not any single categorical imperative, are the goals. All the slogans deployed in an effort to diminish the role of intent in federal criminal law turn out, on examination, to be seriously misleading. With that in mind, Section I explains the lack of academic distinctions between general and specific intent, and the confusion in the courts. Section II lays out Justice Jackson’s opinion in Morissette v. U.S., which is regarded as a basic text on the federal law of criminal intent. Finally, Section III first considers federal crimes one at a time to determine the mental state intended by Congress or imposed by judicial decision, and then considers the element-by-element and definitional approaches.


The Forty-Third Cleveland-Marshall Fund Lecture

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