4
ELONIS v. UNITED STATES
Opinion of ALITO, J.
Staples v. United States, 511 U. S. 600, 605–606 (1994).
For a similar reason, I agree with the Court that we
should presume that an offense like that created by
§875(c) requires more than negligence with respect to a
critical element like the one at issue here. See ante, at 13–
14. As the Court states, “[w]hen interpreting federal
criminal statutes that are silent on the required mental
state, we read into the statute ‘only that mens rea which is
necessary to separate wrongful conduct from “otherwise
innocent conduct.” ’ ” Ante, at 12 (quoting Carter v. United
States, 530 U. S. 255, 269 (2000)). Whether negligence is
morally culpable is an interesting philosophical question,
but the answer is at least sufficiently debatable to justify
the presumption that a serious offense against the person
that lacks any clear common-law counterpart should be
presumed to require more.
Once we have passed negligence, however, no further
presumptions are defensible. In the hierarchy of mental
states that may be required as a condition for criminal
liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant “should
[have] be[en] aware of a substantial and unjustifiable
risk,” ALI, Model Penal Code §2.02(2)(d), p. 226 (1985),
while recklessness exists “when a person disregards a risk
of harm of which he is aware,” Farmer v. Brennan, 511
U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And
when Congress does not specify a mens rea in a criminal
statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement
that is nowhere set out in the text. Once we have reached
recklessness, we have gone as far as we can without stepping over the line that separates interpretation from
amendment.
There can be no real dispute that recklessness regarding
a risk of serious harm is wrongful conduct. In a wide
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