United States v. Cordoba-Hincapie

=== Opinion ===

WEINSTEIN, Senior District Judge.
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TABLE OF CONTENTS
I. FACTS . CO OO ^
A. Cordoba-Hincapie. (X) 00 ^
B. Buelvas-Castro . G) CO ^
ii. LAW.. 489
A. The Mens Rea Principle. 489
1. Origins 489
2. Modern View . 492
a. Theory. 492
b. Exceptions. 495
i. Public-Welfare Offenses. 496
ii. Other Forms of Strict Liability. 497
iii. Negligence. 500
c. Model Penal Code. 501
d. Current Trends. 504
3. Constitutional Dimension.'. 505
a. Supreme Court Treatment. 505
i. Strict Liability. 506
ii. Mens Rea Generally. 509
iii. Other Cases . 513
(a) First Amendment. 513
(b) Void-for-Vagueness. 513
(c) Actus Reus. 513
b. Due'Process Analysis. 515
4. Lower Federal Courts. 518
B. Sentencing Context. 521
1. General Principles. 521
2. Effect of Guidelines . 522
C. Mistake in Narcotics Cases. 527
1. Applicable Law. 527
a. Statutes. 527
b. Guidelines. 529
c. Second Circuit Cases . 530
Burden-of-Proof Structure. 2. 531
Justifications'. 3. '532
III. APPLICATION OF LAW TO FACTS. 534
IV. CONCLUSION. 534
These cases present two profound and fundamental questions about the operation of the criminal law in a democratic constitutional society. Can the requirement of proof of
mens rea
as a basis for criminals’ punishment be circumvented by manipulation of a sentencing system? Can the guarantees of a jury trial to determine the substantive predicates of criminality be shortcircuited by characterizing a critical element of great significance in deciding punishment as one for the judge to determine in fixing sentence — a sentence predetermined under fixed guidelines, not one imposed under a discretionary regime?
To impose the sentences demanded by the prosecution under the United States Sentencing Guidelines (Guidelines) would require that both these questions be answered affirmatively. To do so in the context of the instant cases would be to strike a blow at constitutional protections that developed in England and this country over almost a mil-lenium. Congress could not have intended such a bizarre and dangerous result when it adopted guideline sentences. The war on
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drugs does not require that we win a minor battle with two drug mules by denigrating what we seek to protect — constitutional rights and privileges.
Defendants imported heroin into the United States believing it to be cocaine. The punishment under the Guidelines for smuggling heroin is greater than for bringing in cocaine. The issue presented is how to treat their mistakes of fact: should they be punished only for the crimes they believed they were committing?
The unique new context of guideline sentencing and the serious drift of the federal criminal law away from first principles require that this problem be treated at some length. A rational and principled system of criminal sanction cannot tolerate the addition of many months of imprisonment to these defendants’ sentences simply because it may be inconvenient to draw distinctions based upon traditional notions of
mens rea.
Congress did not require such a result and the Constitution does not countenance it. Consistent with the fundamental Anglo-American tradition that blameworthiness hinges upon a culpable state of mind, defendants’ punishments must be limited by their culpability.
I.' FACTS
A.
Cordoba-Hincapie
Defendant Maria Theresa Cordoba-Hinca-pie is 38 years old and a Colombian citizen. On May 4, '1992 she arrived at Kennedy Airport on a flight from Colombia. During the United States Customs inspection that followed her arrival, an x-ray examination revealed balloons in her digestive tract. The balloons contained 772.8 grams of heroin.
Ms. Cordoba-Hincapie was born in Columbia and raised there, with her seven siblings. Her . mother washed clothes to support the family. Defendant never married and now. has three daughters, ranging in age from nine to eighteen. The children’s father has not been in contact with the family since 1990. They have no means to support themselves. Defendant has had five years of education. She has found occasional work in Colombia as a seamstress and at other menial tasks. She came to the United States in hopes of obtaining an operation to cure the loss of hearing in an ear. She planned to use the proceeds of her crime to pay for the operation and to support her family upon her return to Colombia. The
government
does not contest her account.
She was charged with knowingly and intentionally importing heroin into the United States in violation of
21 U.S.C. §§ 952
(a) and 960(b)(1)(A). Section 960(b)(1)(A) requires a sentence of at least ten years of imprisonment for importation of in excess of one kilogram of heroin. On July 9, 1992, she pled guilty, pursuant to an agreement with the government that is now common in this district, to the lesser penalty provision of § 960(b)(2)(A) which carries a minimum sentence of five years imprisonment for 100 grams or more of heroin. That agreement provided that, should the laboratory report reveal the net, weight of the heroin to be less than one kilogram, the indictment and plea would be amended at the government’s request to charge a violation of § 960(b)(3), which carries no mandatory minimum term of incarceration. The drugs did turn out to weigh less than a kilogram and thus no'statutory minimum applied to her sentence.
The government, by allowing a plea predicated on less than Í00 grams of heroin, was able to avoid the harsh required minimum sentences of our drug laws.
See United States v. McClean,
822 F.Supp. 961
,
1993 WL 189290
(E.D.N.Y.1993). It did not-or so the government argues — avoid the strictures of the Guidelines which require the “real offense” to control the sentence. If she was smuggling heroin, the Guideline range would be 46 to 57 months. For cocaine, it would be 30 to 37 months.
A
Fatico
hearing was held at which defendant testified and was cross-examined about the events leading up to her crime. She stated, as she did at her plea allocution, that she was told by the person for whom she acted as courier that the opaque balloons he provided contained cocaine. She testified that' she believed him, made no further inquiry, swallowed the balloons and departed from Colombia thinking that she was carrying cocaine. She swore that she was not aware of
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heroin smuggling from Colombia, had not previously imported drugs and did not know other smugglers. Defendant also submitted a newspaper article describing her case and discussing the relatively novel phenomenon of Colombian production and export of heroin.
See
Scott Ladd,
Heroin Haulers,
News-day, May 26, 1992, at 3.
Her testimony was credible. Based upon her education, her experience, the facts surrounding her involvement in this crime, the physical resemblance between cocaine and heroin and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that she believed she was importing cocaine.
B.
Buelvas-Castro
Defendant Libardo Buelvas-Castro is 37 and a Colombian citizen. He arrived at Kennedy Airport on a flight from Colombia on December 11, 1992. An x-ray examination during a Customs inspection revealed foreign bodies in his digestive tract. The balloons contained 686.7 grams of heroin.
Defendant was born in Colombia and raised in an intact family. He married in 1976 and now has four children between the ages of nine and fourteen. He has been employed as a butcher since 1977. He has had five years of school.
He was charged with knowingly and intentionally importing heroin into the United States in violation of
21 U.S.C. §§ 952
(a) and 960(b)(2)(A). Section 960(b)(2)(A). mandates a prison term of at least five years for importation of in excess of 500 grams of heroin. Pursuant to an agreement like Cordoba-Hin-capie’s, he was permitted to plead guilty to one count of importing heroin into the United States in violation of
21 U.S.C. §§ 952
(a) and 960(b)(3). Section 960(b)(3) carries no mandatory minimum sentence. For smuggling heroin, the Guideline range is 37 to 46 months. For cocaine it is 30 to 37 months.
At his plea allocution on March 23, 1993, defendant swore that he was told by the person for whom he acted as courier that he would be carrying 600 grams of cocaine. He said he was given prepared packages to swallow in Colombia and told that he would be met at Kennedy Airport.
Defendant testified at a
Fatico
sentencing hearing that his Colombian handler told him he was swallowing cocaine. He swore that he believed the representation because he was not familiar with drugs and that he did not ask any questions. He stated that he is from the coastal region of Colombia, that heroin is not produced there, that he does not read newspapers and that he did not learn that heroin is produced in Colombia until after he came to the United States.
The government contended that heroin is now the predominant drug for export from Colombia. It was afforded the opportunity to adjourn the hearing and produce evidence in support of this contention. It declined to do so.
Based upon defendant’s background and education, the circumstances surrounding his involvement in this crime, the physical resemblance between heroin and cocaine and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that he believed he was importing cocaine.
II. LAW
A.
The Mens Rea Principle
The term,
“mens rea,”
meaning “a guilty mind; a guilty or wrongful purpose; a criminal intent,”
Black’s Law Dictionary
1137 (4th ed. 1968), is shorthand for. a broad network of concepts encompassing much of the relationship between the individual and the criminal law.
See
Sanford H. Kadish & Stephen J. Schulhofer,
Criminal Law and, its Processes
217 (1989) (“A common usage is to express all ... qualifications to liability in terms of the requirement of mens rea.”). These doctrines of criminal responsibility and the theories that support them are deeply rooted in our legal tradition as one of our first principles of law. To understand its import, it is necessary to unpeel the terse Latin.
1. Origins
Western civilized nations have long looked to the wrongdoer’s mind to determine both the propriety and the grading of punishment.
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See, e.g., Morissette v. United States,
342 U.S. 246
, 250 n. 4,
72 S.Ct. 240
, 243 n. 4,
96 L.Ed. 288
(1952) (“For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law, see Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126.”)- “For hundreds of years the books have repeated with unbroken cadence that
Actus nonfacit reum nisi mens sit rea.’’
Francis Bowes Sayre,
Mens Rea,
45 Harv. L.Rev. 974, 974 (1932) [hereinafter Sayre,
Mens Rea]; see also Black’s Law Dictionary
55 (4th ed. 1968) (defining the
actus non
rule: “An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent be criminal”). This is the criminal law’s mantra.
In his dialogues in
Laws,
Plato attempts to construct an ideal criminal code. He rejects the then-prevailing distinction between voluntary and involuntary acts in favor of gradation of crimes based upon levels of intent. A.E. Taylor,
Introduction, in The Latvs of Plato
xlix-l (A.E. Taylor trans., 1934). Plato’s “Visitor from Athens” explains:
What the legislator has to ask himself is whether the agent of the beneficial or detrimental act is acting with a rightful spirit and in a rightful manner.... [H]e must aim throughout his legislation at reconciling the minds of the authors and sufferers of the various forms of detriment by award of compensation, and converting their difference into friendship.... And then as to
wrongful
detriment — or gain, either, in the case that a man should cause another to profit by a wrongful act — such things, as we know, are maladies of the soul, and we must cure them whenever they are curable .... And so, if we can but bring a man to this — to hatred of iniquity, and love of right or even acquiescence in right — by acts we do or words we utter, through pleasure or through pain, through honour bestowed or disgrace inflicted, in a word, whatever the means we take, thus and only thus is the work of a perfect law effected.
Id.
at 250-51
(emphasis in original). Plato then proceeds to lay out a nuanced criminal code that permits defenses based upon insanity, infancy and other forms of incapacity, that punishes premeditated murder more severely than homicide committed in the heat of passion and that absolves those who act unintentionally.
Id.
at 253-73
(“If a man unintentionally cause the death of a person ... he shall, on accomplishing such purifica-tions as may be directed by a law for these cases received from Delphi, be esteemed clear of pollution.”).
The ancient English law tended towards strict liability for acts. But-for causation was considered the essential prerequisite to criminal fault. II Frederick Pollock & Frederic William Maitland,
The History of English Law
470-71 (2d ed. 1968) (“If once it be granted that a man’s death was caused by the act of another, then that other is liable, no matter what may have been his intentions or his motives.”);
see also
Sayre,
Mens Rea, supra,
at 975-80. The “most primitive laws,” according to Pollock and Maitland, held men liable for “acts” done by them slaves, beasts and even their possessions. II Pollock & Maitland,
supra,
at 472-73 (“If his sword kills, he will have
great
difficulty in swearing that he did nothing whereby the dead man was ‘further from life or nearer to death.’ ”). Pollock and Maitland explain that the early law was hostile to the notion of examining an individual’s mental state:
[I]t is hard for us to acquit the ancient law of that unreasoning instinct that impels the civilised man to kick, or consign to eternal perdition, the chair over which he has stumbled. But law which would not confess to sanctioning this instinct still finds grave difficulties in its way if it endeavors to detect and appreciate the psychical element in guilt and innocence. “The thought of man shall not be tried, for the devil himself knoweth not the thought of man”: thus at the end of the middle ages spoke Brian C.J. in words that might well be the motto for the early history of the criminal law.
Id.
at 474-75. While “up to the twelfth century the conception of
mens rea
in anything like its modern sense was non-existent,” Sayre,
Mens Rea, supra,
at 981, it should be remembered that the very nature of most offenses rendered them unlikely or impossible of commission without some level of intent and that state of mind “seems to
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have been a material factor, even from the very earliest of times, in determining the extent of punishment.”
Id.
Toward the end of the Middle Ages, the modern focus on the criminal’s state of mind gradually began to evolve. “[T]he history of the recognition of culpable states of mind should be viewed as a continuing process of self-civilization.” Paul H. Robinson,
A Brief History of Distinctions in Criminal Culpability,
31 Hastings L.J. 815
, 850 (1980) (describing evolution of culpability distinctions from ninth century to present). By the end of the twelfth century, the Roman law, with its concept of
culpa,
and the canon law, with it emphasis on moral guilt, began to influence the development of doctrines of culpability. Sayre,
Mens Rea, supra,
at 982-83. Holds-worth explains,
As the idea grew up that to constitute a crime there must be some sort of a
mens rea
on the part of the accused, it came to look unjust to accuse a man of theft merely because he happened to be in possession of goods to which another had a better right.
Ill A.W. Holdsworth,
A History of English Laiv
322 (1927). The book of
Leges
of Henry I, which tends toward more primitive concepts of strict liability, recites in connection with the offense of perjury,
“reum non facit nisi mens rea.
” Sayre,
Mens Rea, supra,
at 983. It was inevitable that the development of the criminal law, based as it is upon general and evolving societal mores, would track the development of prevailing views about moral wrongdoing. “The early felonies were roughly the external manifestations of the heinous sins of the day.”
Id.
at 989. The word “felon” itself is'a derivative of a Latin term meaning one who is “full of bitterness or venom” and who is “cruel, fierce, wicked, base.” II Pollock
&
Maitland,
supra,
at 465.
“[T]he requirement of a guilty state of mind (at least for the more serious crimes) had been developed by the time of Coke.” Glanville Williams,
Criminal Law: The General Part
30 (2d ed. 1961). Coke, writing in the seventeenth century, described the crime of treason as follows:
So as there must be a compassing or imagination, for an act done
per infatunvum,
without compassing, intent, or imagination, is not within this act, as it appeareth by the expresse words thereof.
Et actus non facit reum, nisi mens sit rea....
This compassing, intent, or imagination, though secret, is to be tryed by the peers, and to be discovered by circumstances precedent, concomitant, and subsequent, with all en-deavour evermore for the safety of the king.
Edward Coke,
Third Institute
6 (London, W. Clarke & Sons 1817). In discussing larceny and theft, he declared,
First it must be felonious,
id est, cum anima furandi,
as hath been said.
Actus non facit reum, nisi mens sit rea.
And this intent to steale must be when it eom-eth to his hands or possessions: for if he .hath the possession of it once lawfully, though he hath
animum furandi
afterward, and carrieth it away, it is no larceny. ...
Id.
at 107.
Once the “exceedingly vague” concept of moral blameworthiness, Sayre,
Mens Rea, supra,
at 994, was recognized the law embarked upon the long journey of refinement and development of culpability distinctions that continues to this day.
Id.
at 994-1004. Increasing precision in the law of excuses and defenses was partly a cause and partly an effect of the firmness with which the
mens rea
principle came to be held. VIII A.W. Holdsworth,
supra,
at 433. After the twelfth century, defenses such as insanity, infancy or compulsion began to be recognized as negativing guilt. Sayre,
Mens Rea, supra,
at 1004-06. Mistake of fact did not become a well-recognized defense until the seventeenth century.
I-d.
at 1014;
see also
VIII A.W. Holdsworth,
supra,
at 434. Holdsworth, in a chapter covering the fourteenth and fifteenth centuries, writes,
The law has left far behind old rules which look merely at the act and neglect the intent; but it has not therefore swallowed whole the canonist’s theory that moral guilt should be chiefly regarded. A formed intent not manifested by any overt act, even a frustrated attempt, will not amount to a felony.
II A.W. Holdsworth,
supra,
at 452.
By the time Blackstone came to write his
Commentaries
in the middle of the eigh
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teenth century, he was able to summarize the English criminal law as follows:
All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration,
the want or defect of ivill.
An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act_ [A]s no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise then as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know.... And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.
II William Bla'ckstone,
Commentaries on the Laws of England
'*20-21 (emphasis in original).
2. Modern View
a. Theory
Two general statements can be made with some confidence about the status of
mens rea
in the modern criminal law. First, “when it comes to attaching a precise meaning to
mens rea,
courts and writers are in hopeless disagreement.” Sayre,
Mens Rea, supra,
at 974;
see also
Leo Katz,
Bad Acts and Guilty Minds
165-209 (1987) (exploring, through hypothetical, the complexity of the
mens rea
principle); Gary V. Dubin, Mens Rea
Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility,
18 Stan.L.Rev. 322, 325 (1966) (“[I]n- sharp contrast to its nearly deified legal status,
[mens rea]
has for centuries remained anomalously and baf-flingly elusive.”). Second,
mens rea
in some form remains a defining and irreducible characteristic of the criminal law. Glanville Williams, one of this century’s most astute commentators on the criminal law, put the matter succinctly:
It may be said that any theory of criminal punishment leads to a requirement of some kind of
mens rea.
The deterrent theory is workable only if the culprit has knowledge of the legal sanction; and if a man does not foresee the consequences of his act he cannot appreciate that punishment lies in store if he does it. The retributive theory presupposes moral guilt; incapacitation supposes social danger; and the reformation aim is out of place if the offender’s sense of values is not warped.
Glanville- Williams,
Criminal Law: The General Part
30 (2d ed. 1961);
see also
Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 109 (1962) (to punish without reference to the actor’s state of mind has no deterrence value and cannot be justified on retributive grounds since the actor is not morally blameworthy). Stephen, in summarizing the development of the English law, captures the relationship between these two general observations:
The maxim, “Actus non facit reum nisi mens sit rea,” is sometimes said to be the fundamental maxim of the whole criminal law; but I think that, like many other Latin sentences supposed to form a part of the Roman law, the maxim not only looks more instructive than it really is, but suggests fallacies which it does not precisely state.... The truth is that the maxim about “mens rea” means no more than that the definition of all or nearly all crimes contains not only an outward and visible element, -but a mental element, varying according to the different nature of the different crimes.
Sir James Fitzjames Stephen,
A History of the Criminal Law of England
94-95 (1883);
see also
Williams,
supra,
at 32-33 (recognizing that
mens rea
requirement has been modified where necessary, permitting liability based upon negligence and even (“a more dubious development”) without regard to fault).
A host of other modern authorities have stated the importance of the mental element in crime, though describing and justifying it
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variously. Bentham’s utilitarian theories" portrayed culpability requirements as essential to ensui’ing the “economy” of punishment. Proportionality and deterrence were, for Bentham, the most essential principles of the criminal law. “Every particle of real punishment that is produced, more than what is necessary for the production of the requisite quantity of apparent punishment,” he wrote, “is just so much misery run to waste.” Jeremy Bentham,
Principles of Penal Law, in
1
The Works of Jeremy Bentham
398 (John Bowring ed., 1962). In his utilitarian approach to punishment, Bentham sought to promote deterrence. To that end, a rational actor 'with full knowledge of the relevant facts was required. Punishment will be ineffective and, therefore, wasteful if the violation is of an
ex post facto
law or the actor does not otherwise have notice of the law, if the actor is insane, an infant or intoxicated, or if the actor labors under a mistake of fact or in. response to duress or physical compulsion.
Id.
at 397.
Holmes also analyzed the problem of
mens rea
from a utilitarian perspective. For Holmes, though deterrence is the “chief and only purpose of punishment,” Oliver Wendell Holmes,
The Common Law
46 (1881), retribution is also a justifiable goal:
[I]t may be said, not only that the law does, but that it ought to, make the gratification of revenge an object.... • The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.
Id.
at 41-42. Both the deterrent -and retributive objectives were justifiable,’ according to Holmes, because “[n]o society has ever admitted that it could not sacrifice individual welfare to its own existence.”
Id.
at 43. As with Bentham, even though there would be no moral objection to punishing the unwitting actor in order to improve society as a whole, some form of culpability is required to ensure the effectiveness of penal sanctions'. “[A] law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.”
Id.
at 50.
The most salient aspect of Holmes’ analysis, however, is his ready admission of negligence as satisfying the
mens rea
principle. According to Holmes, the criminal law, like tort law, should serve to compel individuals to bring their conduct within the parameters of what society deems reasonable.
Id.
The test for culpability should be primarily an “external” one and the
mens rea
requirement is satisfied as long as the actor is aware of circumstances “in which [his or her acts] will probably cause some harm which the law seeks to prevent.”
Id.
at 75. Not only must the individual “find out at his peril things which a reasonable and prudent man would have inferred 'from the things actually known,”
id.,
but strict liability is also implicitly permissible on his account since, there will be instances in which the individual “must go even further, and, when he knows certain facts, must find out at his peril whether the' other facts are-present which would make the act criminal.”
Id.
In general, strict liability has been limited to civil cases. Modern law has been reluctant to extend the concept to criminal
malum in se
offenses — the category into which drug dealing has been placed, even if only recently, by our society and legislatures.
While recognizing' that “legal history shows a continual movement back and forth between extreme solicitude for the general security and extreme solicitude for the individual life,” Roseoe Pound described the
mens rea
principle as fundamental:
[I]t remains true that our legal treatment of delinquents is not preventive but is punitive in its whole conception and administration. Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong. It assumes that the social interest in the general security and the social interest in the general morals are to be maintained by imposing upon him a penalty corresponding exactly to- the
*494
gravity of his offense. It is enforced by an elaborate machinery of execution of the appointed sentence.
Roscoe Pound,
Introduction, in
Francis Bowes Sayre,
A Selection of Cases on Criminal Law
xxxiv-xxxvii (1927).
The leading modern texts have taught the importance of
mens rea
in the criminal law.
See, e.g.,
Sanford H. Kadish & Stephen J. Schulhofer,
Criminal Law and its Processes
217-18 (1989); Williams,
supra,
at 30-33. In his classic treatise, Bishop reports, “Prompting the act, there must be an evil intent. [A]n act and evil intent must combine to constitute a crime.” 1 Joel Prentiss Bishop,
Bishop on Criminal Law
§§ 205-06 (9th ed. 1923);
see also
Edwin R. Keedy,
Ignorance and Mistake in the Criminal Law,
22 Harv. L.Rev. 75, 81 (1908) (“It is a fundamental principle of the criminal law, for which no authorities need be cited, that the doer of a criminal.act shall not be puziished unless he has a criminal mind.”). “Neither in philosophical speculation, nor in religious or moral sentiment,” Bishop writes, “would any people in any age allow that a man should be deemed guilty unless his mind was so.” 1 Bishop,
supra,
§ 287. Bishop counsels vigilance against erosion of this principle:
The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the consciousness that where the mind is pure, he who differs in act from his neighbors does not offend.
Id.
§ 289.
Jerome Hall, in his treatise, expresses a similar view:
The distinctions concerning intention, recklessness and negligence ... are warranted on ethical grounds. The relevant ethical principle expressed in terms of
mens rea,
that penal liability should be limited to voluntary (intentional or reckless) commission of harms forbidden by penal law, represents not only the perennial view of moral culpability, but also the plain man’s morality. It is a necessary principle if punishment is to be distinguished from other sanctions.
Jerome Hall,
General Principles of Criminal Law
133-34 (2d ed. 1960). The leading current treatise is in accord.
See
1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
270 (1986) (A “basic premise” of the criminal law “is that conduct, to.be criminal, must consist of something more than mere action ... some sort of bad state of mind is required as well.”).
Perhaps the most important modern work on criminal culpability is H.L.A. Hart’s
Punishment and Responsibility
(1968). This is a landmark collection of essays that vigorously defend the
mens rea
principle. Proceeding from the premise that
[i]t is characteristic of ’ our. own and all advanced legal systems that the individual’s liability to punishment, at any rate for serious crimes carrying severe penalties, is made by law to ■ depend, among other things, on certain mental conditions,
id.
at 28, Hart seeks the philosophical source of the culpability requirement. He rejects Bentham’s utilitarian justifications as inadequate. If deterrence were the only objective of the criminal law and sacrifice of the individual were not a concern, strict liability would be permissible since punishment of those “who act unintentionally or in some other normally excusing manner may have a utilitarian value in its effect on others.”
Id.
at 20;
see also id.
at 42-43, 179. To the contrary, if strict liability is admitted, Hart says, it is done “with the sense that some other principle has been overridden.”
Id.
at 20.
Holmes’ theory of “objective liability” also fails in Hart’s view.
Id.
at 38. Holmes erroneously poses a choice between a system in which mental conditions are used only to find moral culpability and one in which mental conditions are not considered at all.
Id.
Hart finds no such dilemma. “[Tjhere are independent reasons, apart from the question of moral guilt, why a legal system should require a voluntary act as a condition of responsibility.”
Id.
Hart distinguishes between two “moral” questions. First is the question, for the consideration of the legislature, whether enforcement of a given law produces more good than evil. If good out
*495
weighs evil, then the law is morally permissible. Second is the question, for consideration at the judicial stage, whether the par^ ticular person accused should be excused on account of his or her mental condition because that person “could not have helped” doing the -act and, therefore, punishment would be unjust.
Id.
at 39. Hart characterizes this
mens rea
principle as follows:
[T]he need to inquire into the “inner facts” is dictated not by the moral principle that only the doing of an
immoral
act may be legally punished, but by the moral principle that no one should be punished who could not help, doing what he did.
Id.
(emphasis in original).
The
mens rea
principle, for Hart, flows from our society’s commitment to individual choice. “[W]e look on excusing conditions as something that protects the individual against the claims of the rest of society.”
Id.
at 44. The existence of the panoply of excus-. es and culpability requirements in the crimi- ■ nal law allows the individual to exercise choice with respect to violation of the law.
Id.
at 44-45. Hart summarizes his analysis as follows:
On this view excusing conditions are accepted as something that may conflict with the social utility of the law’s threats; they are regarded as of moral importance because they provide for all individuals alike the satisfactions of a choosing system.... In this way the criminal law respects the claims of the individual as such, or at least as a
choosing being,
and distributes its coercive sanctions in a way that reflects this respect for the individual.
Id.
at 49 (emphasis in original);
see also
Andrew Ashworth,
Principles of Criminal Law
128-29 (1991) (contrasting deterrence-based utilitarian theories with “liberal” theories, which “regard respect for the autonomy of each individual citizen as capable of overriding general calculations of social utility”).
Henry Hart’s thoughtful analysis of the criminal law led him to a destination quite close to H.L.A. Hart’s. For Henry Hart, it is not just the
mens • rea
principle but the whole of the criminal law that reflects the primacy of individual freedom and the individual’s relationship to the community as fundamental organizing principles of óur society. He writes,
Man realizes his potentialities most significantly ... by making himself a functioning and participating member of his community, contributing to as well as drawing from it.
What is crucial in this process is the enlargement- of each individual’s capacity for effectual and responsible decision. For it is only through personal, self-reliant participation, by trial and error, in the problems of existence, both personal and social, that the capacity to participate effectively can grow. Man learns wisdom in choosing by being confronted, with choices and by being made aware that he must abide the consequences of his choice....
Seen in this light, the criminal law has an’.obviously significant and, indeed, a fundamental role to play in the effort to create a good society. For it is the criminal law which defines the minimum conditions of man’s responsibility to his fellows and holds him to that responsibility.
Henry M. Hart, Jr.,
The Aims of the Criminal Laiv,
23 Law & Contemp. Probs. 401
,410 (1958).
The conclusion that
mens rea
has a primacy in modern criminal law was central to the magisterial analysis of Professors Jerome Michael and Herbert Wechsler in their two-part work
A Rationale of the Law of Homicide, 37
Colum.L.Rev. 701, 1261 (1937). This work and those already referred to were foundational in the approach taken by the American Law Institute’s Model Penal Code (Official Draft and Rev. Coijim.1985) (the Code), for which Professor Wechsler was reporter. The Code was the basis of extensive state modifications of criminal laws.
See
Part II A 2 c,
infra.
b. Exceptions
As the work of these leading authorities illustrates, the
mens rea
principle remains, in the modern criminal law, a fundamental requirement. Whatever the current application of the
mens rea
history, this brief recapitulation establishes a critical constitutional baseline. By the time the right to a jury trial and due process was embedded in the
*496
first amendments to the Constitution,
mens rea
constituted a fundamental protection against abuse of criminal sanctions by the state. It is a general rule of law that guards beliefs deeply held within our traditions of individual freedom, responsibility and duty. Like most ancient doctrines, however, it has grown far more sophisticated and nuanced than it once was. It can no longer simply be invoked. Its application must be carefully explained and its many distinctions must be considered. Not only has the law developed an appreciation of gradations in mental states, but it now also openly recognizes limited exceptions to a rule once characterized as admitting no compromise.
i. Public-Welfare Offenses
’ Perhaps the most common exception to the
mens rea
principle has been in cases involving what are characterized as “public-welfare offenses.” Criminal liability has been permitted to attach without regard to fault in instances in which the actor’s conduct involves
minor violations of the liquor laws, the pure food laws, the anti-narcotics laws, motor vehicle and traffic regulations, sanitary, building and factory laws and the like.
Francis Bowes Sayre,
Public Welfare Offenses,
33 Colum.L.Rev. 55, 78 (1933) [hereinafter Sayre,
Public Welfare
];
see generally
American Law Institute,
Model Penal Code
§ 2.05 Comment at 284-90. & n. 7 (Official Draft and Rev.Comm.1985) (collecting casés, from nineteenth century through mid-1970s).
Sayre dated the development of this welfare-exception doctrine to the middle of the nineteenth century. Emphasizing that he was speaking of “light” offenses, he explained it as follows:
The decisions permitting convictions of light police offenses without proof of a guilty mind came just at the time when the demands' of an increasingly complex social order required additional regulation of an administrative character unrelated to questions of personal guilt; the movement also synchronized with the trend of the day away from nineteenth century individualism toward a new sense of the importance of collective interests.
Sayre,
Public Welfare, supra,
at 67;
see also Morissette v. United States,
342 U.S. 246, 253-60
,
72 S.Ct. 240, 244-48
,
96 L.Ed. 288
(1952) (describing “a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent” and attributing trend in part to the industrial revolution);
R. v. Woodrow,
15 M. & W. 404 (Exch. 1846) (conviction for selling adulterated tobacco upheld under statute silent as to
mens rea
requirement);
R. v. Dixon,
3 M. & S. 12 (K.B. 1814) (conviction for selling adulterated bread upheld under statute silent as to
mens rea
requirement). Sayre cautioned against overstating the significance of this development. “Criminality is and always will be based upon a requisite state of mind as one of its prime factors.” Sayre,
Public Welfare, supra,
at 56.
Sayre was able to discern from the cases two principles identifying the contours of the public-welfare offense doctrine.
Id.
at 72. First, if punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then
mens rea
is probably required.
Id.
Second, if the penalty is light, involving a relatively small fine and not including imprisonment, then
mens red
probably is not required.
Id.; see also
Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 148-51 (1962) (arguing that public-welfare offense doctrine should not include crimes permitting imprisonment since the “stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes”); 1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
342-44
(1986) (if
punishment is severe, strict liability is unlikely to have been intended by legislature).
Justice Jackson once described the public-welfare offenses as, for practical purposes, imposing a negligence standard:
The accused, if he does not will the violation, usually is in a position to prevent it with no more .care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penal
*497
ties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.
Morissette,
342 U.S. at 256
,
72 S.Ct. at 246
.
Other commentators have described and delimited this doctrine of strict liability on similar grounds.
See, e.g.,
1 Joel Prentiss Bishop,
Bishop on Criminal Law
§ 206a (9th ed. 1923) (recognizing but minimizing limited exception to
mens rea
principle for public-welfare offenses); H.L.A. Hart,
Punishment and Responsibility
32 (1968) (Public-welfare offenses “are usually punishable with'a fine and are sometimes said by jurists who object to strict liability not to be criminal in any ‘real’ sense.”); 1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Lato
340-41 (1986) (“Usually, but not always, the statutory crime-without-fault carries a relatively light penalty — generally of the misdemeanor variety.”); Glanville Williams,
Criminal Law; The General Part
235 (2d ed. 1961) (Public-welfare offenses “presuppose a continuous activity, such as carrying on a business, so that (a) special skill and attention may reasonably be demanded, and (b) if the law is broken there will be a suspicion that it was a deliberate breach due to self-interest.”); Anthony A. Cuomo, Mens Rea
and Status Criminality,
40 S.Cal.L.Rev. 463, 521-22 (Public-welfare offenses are not crimes but rather are “regulatory measures” because of their light penalties and lack of stigma.).
Given this modern development, anti-drug offenses might once have been characterized as public-welfare offenses, particularly as this country moved from a “freedom to use” model through some tax and medical models beginning in the 1910s. When, however, criminal penalties were markedly increased, particularly through such severe sentencing mechanisms as the Rockefeller laws in New York and those adopted in our current war on drugs that now include life sentences,
see
21 U.S.C. § 960
(b)(3) (maximum term of life imprisonment for narcotics importation in which death or serious injury results), and even capital punishment,
see
21 U.S.C. § 848
(e) (possible sentence of death for drug offenses in which killing results), the legal-constitutional situation changed radically. What once may have been a minor welfare offense,
malum prohibitum,
is now a major criminal offense,
malum in se.
Older cases that may have allowed conviction of narcotics offenses without proof of
mens rea
have no precedential value in this new setting,
ii. Other Forms of Strict Liability
Strict liability has been permitted in the criminal law in a number of other instances.
See, e.g.,
Henry M. Hart, Jr.,
The Aims of the Criminal Law,
23 Law & Contemp. Probs. 401
, 430 (1958) (statutory rape and bigamy); Anthony A. Cuomo, Mens Rea
and Status Criminality,
40 S.Cal.L.Rev. 463, 517 (1967) (bigamy, statutory rape, misdemeanor-manslaughter and felony-murder); Herbert L. Packer,
Mens Rea and the Siopreme Court,
1962 Sup.Ct.Rev. 107, 141-42 (1962) (statutory rape, felony-murder and misdemeanor-manslaughter). The most widely recognized form of strict liability outside the realm of public-welfare offenses probably is the doctrine, embodied in statute and upheld, by courts in a majority of states, that the perpetrator of the crime of “statutory rape,” that is, intercourse with a person below the age at which the law deems consent possible, cannot defend on the grounds that he did not know of or was mistaken as to the victim’s age.
See, e.g.,- State v. Stiffler,
117 Idaho 405
,
788 P.2d 220
(Sup.Ct.1990);
Commonwealth v. Knap,
412 Mass. 712
,
592 N.E.2d 747
(Sup.Ct.1992);
People v. Cash,
419 Mich. 230
,
351 N.W.2d 822
(Sup.Ct.1984);
see also
Matthew T. Fricker.& -Kelly Gilchrist, Comment, United States v. Nofziger
and the Revision of
18 U.S.C. § 207
,
65 Notre Dame L.Rev. 803, 813-16 & nn. 55-61 (1990) (history and development of statutory rape as strict liability offense).
In defense of
mens rea
principles, a growing number of states have developed legislative or judge-made defenses applicable in statutory rape .cases, usually requiring the defendant to prove a “reasonable” mistake of fact as to the victim’s age.
See, e.g., State v. Guest,
583 P.2d 836
(Alaska Sup.Ct.1978) (judge-made defense of reasonable mistake as to age, in part’on ground that statutory rape “may not appropriately be categorized as a public welfare offense”);
Perez v. State,
111 N.M. 160
,
803 P.2d 249
(Sup.Ct.1990) (though strict liability is required to protect
*498
children under the age of thirteen, reasonable mistake-of-fact defense permitted, by judicial decision, if victim is between 13 and 16);
State v. Elton,
680 P.2d 727
(Utah Sup.Ct.1984) (in view of statutory provisions providing for mistake-of-fact defense and requiring
mens rea
for all crimes not deemed strict liability offenses by the legislature, government must prove defendant was aware of or was negligent as to the age of the victim and affirmative defense of mistake of fact must be permitted);
State v. Dodd,
53 Wash.App. 178
,
765 P.2d 1337
(Ct.App.1989) (statutory defense of reasonable mistake as to age);
see also
American Law Institute,
Model Penal Code
§ 213.6(1) (Official Draft and Rev. Comm. 1985) (reasonable mistake as to age is defense if child is ten or older). The California Supreme Court prepared the ground on which these exculpatory doctrines have flourished in
People v. Hernandez,
61 Cal.2d 529
,
39 Cal.Rptr. 361
,
393 P.2d 673
(Sup.Ct.1964) (ruling that reasonable mistake that victim is eighteen or more years old is defense to charge of statutory rape, on ground ’that intent requirement for serious crimes must be presumed 'in absence of legislative statement to contrary).
But see People v. Olsen,
36 Cal.3d 638
,
205 Cal.Rptr. 492
,
685 P.2d 52
(Sup.Ct.1984) (refusing to permit defense, despite silence of statute, of reasonable mistake as to age to charge of lewd and lascivious conduct with child under age of fourteen in view of “strong public policy considerations” favoring protection of children under fourteen).
The narrow “statutory rape exception” to the
mens rea
principle was debated, under a somewhat different and archaic law, in the famous English case of
R. v. Prince,
L.R. 2 Cr.Cas.Res. 154 (1875),
reprinted in
[1874-80] All E.R.Rep. 881. The defendant was convicted under a statute prohibiting the “unlawful” taking of an unmarried girl under the age of 16 out of the possession of her father. Prince complained of the absence of a requirement of knowledge as to the girl’s age. The court upheld his conviction. One group of judges argued that, leaving aside the question of age, the ac.t alone was not “illegal” but was “wrong in itself’ and, therefore, the legislature had determined that the act “should be at the risk of the taker.”
Id.
at 883-85 (Bramwell, B.). They insisted that the
mens rea
principle was preserved by requiring that the defendant know that he lacked the father’s consent. The lone dissenter took the others to task for what he conceived to be abandonment of the
mens rea
principle.
Id.
at 887-95 (Brett, J.). He argued that there would have been no criminal offense had the facts been as defendant believed them to be and, therefore, the conviction could not stand. The maxim that “there can be no conviction for crime in England in the absence of a criminal mind or mens rea” required that a mistake-of-fact defense be recognized where, if the facts were as the defendant believed them to be, there would have been no crime at all.
Id.
¿t 895 (Brett, J.).
The
Prince
case, viewed’■ by criminal-law commentators as a landmark in the development of strict liability, was strongly protested by them.
See, e.g.,
Glanville Williams,
Criminal Law: The General Pari
239-41 (2d ed. 1961) (to support Prince’s conviction, one must believe that he would have committed “a moral wrong” had facts been as he believed them to be);
see also
Rupert Cross,
Centenary Reflections on Prince’s Case,
91 Law Q.Rev. 540 (1975) (critiquing the several opinions - in Prince). Several state courts that have declined to recognize mistake-of-fact defenses in statutory rape cases have done so over vigorous dissents.
See, e.g., People v. Olsen,
36 Cal.3d 638
,
205 Cal.Rptr. 492
,
685 P.2d 52, 59-61
(Sup.Ct.1984) (Grodin, J., concurring and dissenting) (conviction should not be permitted in the absence of fault except in narrow class of public-welfare offenses carrying light penalties and little stigma);
State v. Stiffler,
117 Idaho 405
,
788 P.2d 220, 227-29
(Sup.Ct.1990) (Blistine, J., dissenting) (“Refusal to recognize a mistake of age defense to statutory rape ... continues an archaic practice which is no longer in step with modern values or practical reality.”);
People v. Cash,
419 Mich. 230
,
351 N.W.2d 822, 830-31
(Sup.Ct.1984) (Kav-anagh, J., dissenting) (obviation of proof of
mens rea
in felony ease is unprecedented). In
State v. Guest,
583 P.2d 836
(Alaska Sup.Ct.1978), the Alaska Supreme Court viewed expansion of strict liability as a threat to the
*499
principle “that consciousness of wrongdoing is an essential element of penal liability,”
id.
at 837
, and refused to permit more than the “narrow class” of public welfare regulations
caused primarily by the industrial revolution, out of which grew the necessity of imposing more stringent duties on those connected with particular industries, trades, properties, or activities that affect public health, safety or welfare.
Id.
(quoting
Speidel v. State,
460 P.2d 77, 78
(Alaska Sup.Ct.1969)).
While commentators generally have accepted the doctrine of public-welfare offenses on the ground that it covers only' a limited class of cases involving minimal or light punishments, they have not looked kindly upon the creation of further categories of strict liability crimes.
See, e.g.,
Glanville Williams,
Criminal Law: The General Part
241 (2d ed. 1961) (“Absolute criminal responsibility hits those who, even if they .knew the law, would not be deterred.”); Henry M. Hart, Jr.,
The Aims of the Criminal Laiv,
23 Law & Con-temp. Probs. 401, 422-23, 430 (1958) (“It is submitted that there can be no moral justification for [strict liability], and that there is not, indeed, even a rational, amoral justification.”); Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 150-51 (1962) (“No one should be sentenced to imprisonment or its equivalent without being afforded the opportunity to litigate the issue of
mens
rea_”); Sayre,
Public Welfare, supra,
at 79 (danger exists that courts, following false analogy to public welfare offenses, will extend strict liability to cover unpopular crimes in order to secure easy convictions);
see also
American Law Institute,
Model Penal Code
§ 213.1 Comment at 326 (Official Draft and Rev. Comm.1985) (denial of defense in statutory rape cases based on mistake as to age “has excited the ire of commentators and the attention of penal law reformers”).
The denial of a mistake-of-law defense in some modern contexts has similarly been criticized as a form of strict liability.
See
Henry M. Hart, Jr.,
supra,
at 413-14, 419 (1958) (The principle that ignorance of the law is no excuse “has been ... much misunderstood and abused in relation to regulatory crimes, involving conduct which is not intrinsically wrongful.”); Bruce R. Grace, Note,
Ignorance of the Law as an Excuse,
86 Co-lum.L.Rev. 1392, 1395-96 (1986) (in era of complex .regulatory schemes, presumption that everyone knows the law threatens to violate
mens rea
principle).
Imposition of strict liability has been justified on the grounds-that, in .certain instances, the prosecution otherwise would have difficulty proving the requisite mental state.
See
1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
341 (1986); see
also
Sayre,
Public Welfare, supra,
at 74 (mistake-of-faet defense refused in statutory rape eases as means of ensuring “real protection” of young victims). H.L.A. Hart rejects this argument, stating,
At present we have in strict liability clear exceptions to the principle [of responsibility], but no very persuasive evidence that the sacrifice of principle is warranted here by the amount of dishonest evasion of conviction which would ensue if liability were not strict. ■
H.L.A. Hart,
Punishment and Responsibility'
183' (1968). And, as one observer has explained, while heightened caution on the' part of the individual actor can be achieved through a negligence standard, strict liability unnecessarily “establishes a standard which can only breed frustration and disrespect for the law ... [by] imposing] criminal, sanctions irrespective of care.” - Anthony A. Cuo-mo, Mens Rea
and Status Criminality,
40 S.Cal.L.Rev. 463, 518-19 (1967).
It is important to note a critical distinction between
mens rea
exceptions such as those in statutory rape cases and such as the one we face in the instant cases. In the statutory rape cases without á
mens rea
exception there could be no conviction. In cases distinguishing between knowledge of heroin and cocaine, the belief that cocaine rather than heroin was involved still leads to a most serious conviction. Moreover, the grading involved reflects a public policy making heroin the more serious crime. In effect, the punishment scheme tells potential drug dealers, “If the law cannot deter you from dealing in- drugs, it seeks to induce you to at least eschew the more dangerous — heroin; 'to in
*500
duce the less dangerous conduct we will provide a reduced penalty.”
iii. Negligence
Somewhere between absolute loyalty to the
mens rea
principle and strict liability lies culpability founded upon some form of negligence. As Herbert Packer has explained, negligence does not represent an abandonment of the
mens rea
principle but rather its extension to include blame for the
absence
of a state of mind that, according to societal norms, the actor should have had. Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 143-45 (1962);
cf.
Anthony A. Cuomo, Mens Rea
and Status Criminality,
40 S.Cal.L.Rev. 463, 516 (1967) (negligence-based offenses are “non-mews
rea
offenses” but are not like public welfare and other strict liability crimes because the very issue to be decided is “whether, in fact,
mens rea
is lacking”). Most commentators have been accepting, even if not enthusiastic, about the role of negligence in the criminal law. Glanville Williams writes, “There is a half-way house between
mens rea
and strict responsibility which, has not yet been properly utilized, and that is responsibility for negligence.” Glanville Williams,
Criminal Law: The General Part
262 (2d ed. 1961);
see also
1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
325-33 (1986) (describing widespread use of negligence in criminal law). Packer is in accord:
[T]hé idea of criminal responsibility based upon the actor’s failure to act as carefully as he should affords an important and largely unutilized means for avoiding the tyranny of strict liability in the criminal law.
Packer, supra, at
110.
H.L.A. Hart provides a typically thoughtful justification for the criminal law being more willing to accept liability based upon negligence than liability without fault:
[I]t does not appear unduly harsh, or a sign of archaic or unenlightened conceptions of responsibility, to include gross, unthinking carelessness among'the things-for which we blame and punish.... There seems a world of difference between punishing people for the harm they unintentionally, but carelessly .cause, and punishing them for the harm which no exercise of reasonable care on their part could have avoided.... So “I just didn’t think” is not in ordinary life, in ordinary circumstances, an excuse; nonetheless it has its place in the rough assessments which we make, outside the law, of the gravity of different offenses which cause the same harm.... Hence, showing that the damage was not intentional, but the upshot of thoughtlessness or carelessness, has its relevance as a mitigating factor affecting the quantum of blame or punishment.
H.L.A. Hart,
Punishment and Responsibility
136 (1968).
Henry Hart’s analysis is even more probing. He readily embraces liability based upon f-ecklessness: “If an individual knowingly takes a risk of a kind which the community condemns as plainly unjustifiable, then he is morally blameworthy and can properly be adjudged a criminal.” Henry M. Hart, Jr.,
The Aims' of the Criminal Law,
23 Law & Contemp. Probs. 401
, 416 (1958). The justification for this view is that the reckless actor knows of his or her own deficiencies. For example/ the doctor who swathes a patient with kerosene-soaked rags may not know of the effect of kerosene on the skin, but surely knows that he or she lack's the necessary specialized training to treat the patient safely’
Id.
Hart is more cautious, however, when it comes to pure negligence:
The question remains whether simple unawareness of risk, without awareness of any deficiency preventing appreciation or avoidance of it and without any element of knowing disregard of a relevant legislative decision,- can justly be declared to be culpable. The answer would seem clearly to be no, at least in those situations in which the actor lacks the ability either to refrain from the conduct which creates the risk or to correct the deficiency which makes engaging in the conduct dangerous..... But suppose the actor has this ability? Guilt would, then, seem to depend upon whether he has been put upon notice of his duty to use his ability to a degree which makes his unawareness of the duty, in the under
*501
standing of the community,, genuinely blameworthy.
Id.
at 415-17
.
Hart’s explanation of the proper role for negligence in the modern criminal law seems most consonant with traditional
mens rea
doctrine. The law must distinguish between instances in which the negligent actor rightfully can be blamed for having failed to exercise capacities he or she knowingly possessed and those in which the negligent actor lacked the capacity to compensate for the deficiency in question. This criminal negligence standard is tempered by substantially greater subjective considerations than the standard applied in civil actions. Such a cautious approach is justified since the risk of erroneous •outcomes in criminal cases, in which liberty usually is at stake, should be minimized.
See In re Winsliip,
397 U.S. 358, 368-76
,
90 S.Ct. 1068, 1074-79
,
25 L.Ed.2d 368
(1970) (Harlan, J., concurring) (justifying burden of proof beyond a reasonable doubt on similar grounds). The writing in this field leaves the impression that acceptance of a negligence standard for criminal punishment is a- sad retreat from sounder criminal law doctrine, designed by the commentators to defend the citadel of
mens rea
from breach by strict liability in serious crimes, something none of them accepts.
c. Model Penal Code
A tour of virtually any aspect of modern criminal law doctrine inevitably includes the Model Penal Code.
See
American Law Institute,
Model Penal Code
(Official Draft and Rev. Comm.1985). No single body of work has had a greater influence on the American criminal law as it now stands.
See generally
Symposium,
The 25th Anniversary of the Model Penal Code,
19 Rutgers L.J. 519
(1988);
see also
Norman Silber & Geoffrey Miller,
Toward Neutral Principles in the Law: Selections from the Oral History of Herbert Wechsler,
93 Colum.L.Rev. 854, 917-20 (1993) (discussion with Professor Herbert Wechsler, reporter on the Code, about his role and the influence of the project). The Code represents a unique blend of sophisticated theory and careful, practical drafting. The success of its scheme remains a reminder of the importance of a unified, coherent approach to the application of criminal statutes and the dangers in patchwork criminal codes and- decisions that lack internal consistency and leave basic questions and problems unaddressed.
The Code’s treatment of
mens rea
is direct, yet it manages to effectuate the sophisticated modern understanding of the principle while applying it with considerable force. Section 2.02 establishes a general requirement of
mens rea,
captures the modern understanding of gradations of mental states and recognizes that
men's rea
requirements must be considered with respect to each element of an offense:
Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
Model Penal Code
§ 2.02(1). Subsection 2.02(3) establishes a presumption that these
mens rea
requirements apply to statutes that are silent with respect to required mental states. Subsection 2.02(4) states that a law’s culpability requirement is presumed to apply to all of its elements. The drafters explain that § 2.02 “expresses the Code’s basic requirement that unless some element of mental culpability is proved with respect to each material element of the offense,, no valid criminal conviction may be obtained.”
Id.
§ 2.02 Comment at 229. A primary purpose in enacting § 2.02 was “to dispel the obscurity with which the culpability requirement is often treated when such concepts as ‘general criminal intent,’ ‘mens rea,’ ‘presumed intent,’ ‘malice,’ ‘wilfulness,’ ‘scienter,’ and the like have been employed.”
Id.
§ 2.02 Comment at 230.
Section 2.05 includes the Code’s sole exception to its insistence upon
mens rea
requirements. It is a narrow one:
(1) The requirements of culpability prescribe'd by Sections 2.01 and 2.02 do not apply to:
(a) offenses that constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consis
*502
tent with effective enforcement of the law defining the offense; or
(b) offenses, defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.
“Violations,” as defined by the Code, do not constitute crimes, do not carry the collateral consequences of crimes and may not be punished except by suspended sentence, fine or other civil penalty.
Id.
§§ 1.04(5) and 6.02(4). The drafters characterize § 2.05 as “a fi’ontal attack on absolute or strict liability.”
Id.
§ 2.05 Comment at 282. They describe as “too fundamental to be compromised” the principle that “[c]rime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant’s act was culpable.”
Id.
§ 2.05 Comment at 283. It should be emphasized that § 2.05 requires that a legislative intent to impose strict liability “plainly appear.”
The Code permits liability based upon negligence on much the same grounds as developed by the commentators discussed above. Section 2.02(2)(d) defines negligence as follows:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
While this is arguably an “objective” standard of liability, it contains heightened protections for the individual that are clearly tailored for the criminal law. It speaks of “a substantial and unjustifiable risk” and “a gross deviation,” and it focuses on the reasonable person “in the actor’s situation.” The drafters justify liability based upon a strong form of negligence as follows:
When people have knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk, they are supplied with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control. Moreover, moral defect can properly be imputed to instances where the defendant acts out of insensitivity to the interests of other people, and not merely out of an intellectual failure to grasp them.
Id.
§ 2.02 Comment at 243. These comments explain why — on the argument that it has the benefit of inducing caution — strict liability is overbroad. A properly calibrated negligence standard that makes allowance for the truly faultless person accomplishes the same result without sweeping in those upon whom the law can have no effect.
The Code’s treatment of mistakes of fact is particularly relevant and important. Section 2.04 of the Code illustrates how the
mens rea
principle can be adhered to without compromising the practical needs and objectives of the penal law. It states,
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.
Id.
§ 2.02.
Particularly relevant to the cases at hand is the.second sentence of § 2.04(2). It would make the defendants responsible for, and punishable for, cocaine not heroin. It reads:
In such case, however, the ignoi’ance or mistake of the defendant shall reduce the grade and degree of the offense of which
*503
he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
Id.
§ 2.04(2).
The remaindér of § 2.04 denies the defense of mistake of law, except in limited circumstances.
Id.
§ 2.04(3). As the drafters themselves point out, § 2.04 (at least subsection (1)) is largely superfluous since the culpability requirements of § 2.02 alone preclude conviction in cases of mistake.
Id.
§ 2.04 Comment at 270. They explain that “ignorance or mistake has only evidential import; it is significant whenever it is logically relevant....”
Id.
§ 2.04 Comment at 269.
Notice that subsection 2.04(2) insists upon full and consistent adherence to the
mens rea
principle. The Code flatly rejects the view, expressed in a similar form as early as the
Prince
case (discussed above) and readily accepted by many federal courts today (as will be described below) that once one commits
some
crime with
some mens rea,
one is liable for
all
criminal actions that result
regardless
of
mens rea.
The Code holds the actor liable only for the crime the actor believed he or she was committing. The drafters thoughtful explanation of § 2.04(2) merits lengthy quotation:
If the [mistake-of-fact] defense were denied altogether, an actor culpable in respect to one offense could be convicted of a much more serious offense. On the other hand, the defendant should not go free, for on either view — the facts as they occurred or as the defendant believed them to be — a criminal offense was committed.
The offense of burglary will illustrate the problem. Burglary is defined generally by Section 221.1 to include entry into any building or occupied structure for the purpose of committing a crime therein, and is graded normally as a felony of the third degree. It is a felony of the second degree, however, if the building is a dwelling of another and the entry is at night. Assume that a defendant enters a building at night for the requisite purpose, and that the building is a dwelling house. If the defendant believed, and formed his belief in a manner that could not be characterized as reckless, that the building was a store, he could be convicted only of a third degree felony.--
To deny the relevance of the defense of mistake in this situation would be in effect to recharacterize, for this special purpose, the culpability level normally required by the Code for the material element of-the more serious offense. Presumably a considered judgment led to the inclusion as a material element the requirement that a building be a dwelling in order to aggravate the offense to a second degree felony; measuring the defendant’s culpability toward that element should be an important exercise in grading the extent of the criminality involved. The doctrine that when one intends a lesser crime he may be convicted of a graver offense committed inadvertently leads to anomalous results if it is generally applied in the penal law; and while the principle obtains to some extent in homicide, its generality has rightly been denied.
Id.
§ 2.04 Comment at 272-73.
It is important to understand that the Code’s analysis in this respect explicitly applies not only to mistakes as to the
type
of offense, but also to mistakes implicating the
grading
of offenses.
See id.
§§ 1.13(10) (defining “material element” to include all elements not relating to “statute of limitations, jurisdiction, venue” or other matters not related to the harm sought to be prevented or to justifications and excuses) and 2.02 Explanatory Note at 227 (similarly explaining “material element”);
see also id.
§ 2.04 Explanatory Note at 268 (“The defendant ... cannot be convicted of
a grade or degree
of offense higher than the offense of which he could have been convicted had the situation been as he supposed.” (emphasis added)); Peter W. Low,
The Model Penal Code, The Common Law, and Mistakes of Fact: Recklessness, Negligence or Strict Liability?,
19 Rutgers L.J. 539
, 546-47 (1988) (While “[t]he general position of the common law is almost certainly to the contrary,” under the Code “the culpability structure of Section 2.02 is meant to apply to grading criteria as well as to the formal elements of Model Penal Code offenses.”).
*504
As LaFave and Scott explain, many courts, especially in cases involving statutory rape, have proceeded on the theory that a mistake-of-fact defense should not be available to the defendant who would have been engaged in “wrongful” conduct even if the facts had been as he or she believed them to be. LaFave and Scott, like the Code, reject this argument:
The lesser wrong and moral wrong theories ... are grounded upon the proposition that a ‘guilty mind,’ in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally, knowingly, recklessly or even negligently engage in the acts described in the statute.... That position is unsound, and has no place in a rational system of substantive criminal law.... [I]t is generally true that crimes defined in terms of causing a certain bad result require mental fault of the same kind and intensity, and mental fault sufficient for some other kind of crime will not suffice. ... This is because considerations of deterrence, correction, and just condemnation of the actor’s conduct all focus attention upon the'harm intended rather than the harm actually caused.
1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
581-83 (1986);
see also State v. Elton,
680 P.2d 727, 730-31
(Utah Sup.Ct.1984) (“To hold one liable for a greater crime which he actually sought to avoid committing on the ground that he committed a lesser crime turns the doctrine of lesser included offenses on its head and raises fundamental questions which may have constitutional implications.”);
cf.
Edwin R. Keedy,
Ignorance and Mistake in the Criminal Law,
22 Harv.L.Rev. 75, 84 (1908) (“If the defendant, being mistaken as to material facts, is to be punished because his mistake is one which an average man would not make, punishment will sometimes be inflicted when the criminal min.d does not exist. Such a result is contrary to fundamental principles, and is plainly unjust, for a man should not be held criminal because of lack of intelligence.”).
d. Current Trends
The seemingly elemental concept of
“mens rea,”
received wisdom for lawyers from the first year of law school, proves exceedingly difficult to tie together neatly once unpacked. Its history has been marked by development, change and shifting attitudes. These problems no doubt will persist.
See
Paul H. Robinson,
A Brief History of Distinctions in Criminal Culpability,
31 Hastings L.J. 815
, 853 (1980) (“The long-range view of history illustrates the irresistible momentum of development. ... [A]s the people of 844 recognized only two [culpability distinctions], the people of 2548 may feel justice cannot be done with less than eight.”).
Three observations about current trends can be made with some confidence. First, appreciation by the modern criminal law of nuances in mental states continues to increase.
See
Sayre,
Mens Rea, supra,
at 1019 (canonists’ concern with evil motive has gradually been replaced with requirement of specific forms of intent for each felony);
see also
Model Penal Code § 2.02;
see generally
Kenneth W. Simons,
Rethinking Mental States,
72 B.U.L.Rev. 463 (1992) (developing proposal for new framework of mental states based upon distinctions among “culpable-desire” states, “culpable-belief’ states and culpable conduct); Gary V. Dubin, Mens Rea
Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility,
18 Stan.L.Rev. 322 (1966) (reformulating
mens rea
into principles of proscription, conformity and function).
Second, the
mens rea
principle is no longer the sharp-edged canon that the old volumes once, described. As society has shifted from punishing moral wrongdoing to “protecting social and public interests,” the
mens rea
principle “is coming to mean, not so much a mind bent on evil-doing as an intent to do that which unduly endangers social or public interests.” Sayre,
Mens Rea, supra,
at 1017. It may be true that “the hard core of the criminal law is ... riddled with exceptions to the
[mens rea
J principle” and that “the allegedly pervasive principle of
mens rea
is not pervasive at all.” Herbert L. Packer,
Mens Rea aipd the Supreme Court,
1962 Sup.Ct. Rev. 107, 138 (1962). Yet this erosion is not
*505
decisive in addressing new problems of the criminal law.
Third, when dealing with an interpretation that may seriously undermine the traditional
mens rea
protections, the conceptions of the late eighteenth century have substantial relevance. Congress can be assumed to want to stay safely within traditional protections of
mens rea
doctrine to avoid uneonstitutionality. Absent a clear statement to the contrary this intent can be read into both statutes and Guidelines promulgated by the United States Sentencing Commission (Commission).
Mens rea
remains a fundamental element of crimes. Virtually no one advocates its abandonment. Even Lady Barbara Wootton,
see Crime and the Criminal Latv
(1963) 51-63, arguing for a new approach to criminal law under which
mens rea
would be irrelevant at the conviction stage, insists that it should be largely determinative of the appropriate sentence. Her approach would lead to the same result in the instant cases as that of the more traditional
mens rea
theorists.
A survey of the principle’s history and its treatment by the leading criminal-law minds of this century reveals that
mens rea
remains a reflection of deep commitments within our culture regarding individual freedom and autonomy and the individual’s relationship ■ to the community. Leaving aside the Model Penal Code, the strength of these observations has some tendency to dissipate when we descend from theory into the practical application of the criminal law.
3. Constitutional Dimension
a. Supreme Court Treatment
Against this doctrinal background, the Supreme Court has issued a series of decisions, some deploying the
mens rea
principle and others giving it slight shrift,- that were described thirty years ago as “a mark of inadequate performance in an increasingly important area of [the Court’s] adjudication.” Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 107 (1962);
see also
Henry M. Hart, Jr.,
The Aims of the Criminal Lain,
23 Law & Contemp. Probs. 401
, 431 (1958) (“From beginning to end, there is scarcely a single opinion by any member of the Court which confronts the question [of
mens rea
] in a fashion which deserves intellectual respect.”).
The more recent opinions have not clarified the picture. This body of law has left unsettled the question of what role the
mens rea
principle plays in our constitutional law.
See
Packer,
supra,
at 107
(“Mens rea
is an important requirement, but it is not a constitutional requirement, except sometimes.”). The tendency of the Supreme Court and, as will be described below, of the lower federal courts to treat
mens red
problems as ones of simple statutory interpretation has contributed to continuing difficulty. Because
federal
criminal laws are usually in question in federal
mens rea
cases, it is often hard to separate statutory interpretation from constitutional law.
The Supreme Court has addressed the
mens rea
principle in a number of different contexts. The decisions Can be divided for convenience into three categories: those that address and accept various strict liability statutes, primarily public-welfare offenses; those that insist on adherence to the
mens rea
principle or allow it to be dispensed with only as to peripheral elements of crimes; and those that treat other issues in a manner that seems to acknowledge at least implicitly the importance of the
mens rea
principle.
Despite a fluttering of views in such areas as burdens of proof and presumptions, the Supreme Court has never abandoned its core analysis of
In re Winship,
397 U.S. 358
,
90 S.Ct. 1068
,
25 L.Ed.2d 368
(1970), requiring — as a matter of due process — proof beyond a reasonable doubt to be found by a jury “of every fact necessary to constitute the crime ... charged.”
Id.
at 364
,
90 S.Ct. at 1072
(agreeing with dissent in New York Court of Appeals of Chief Judge Fuld in a juvenile court case). In his
Winship
concurrence Justice Harlan pointed out that this standard “reflectfs] a very fundamental assessment of the comparative social costs of erroneous factual determinations.”
Id.
at 370
,
90 S.Ct. at 1075
. ■ A fact “necessary to constitute the crime” would, in the absence of a clear constitutionally acceptable enactment by Congress, include any fact constituting the basis for a large enhancement of penalty.
See
Ronald J. Allen;
The Restoration of In re
*506
Winship: A Comment on Burdens of Persuasion in Criminal Cases,
76 Mich.L.Rev. 30, 36-46 (1977) (proof beyond a reásonable. doubt required for a given punishment proportional to what the state has proved); John Calvin Jeffries, Jr. & Paul B. Stephen III,
Defenses, Presumptions and Burdens of Proof in the Criminal Law,
88 Yale L.J. 1325
, 1365-79 (1979)
(Winship
“demands, as essential of due process, proof beyond a reasonable doubt of facts sufficient to justify penalties of the sort contemplated.”). With this
Winship
guiding lighthouse beam before us we can perhaps escape the shoals and rocks -of seemingly conflicting Supreme Court precedents.
i. Strict Liability
The Supreme Court has permitted the imposition of strict liability in a variety of criminal contexts, some involving public welfare-type statutes and'others involving corporate actoi’s. These decisions, particularly the early ones, provide little in the way of detailed guidance on matters of constitutional law and statutory construction.
In
Shevlin-Carpenter Co. v. Minnesota,
218 U.S. 57
,
30 S.Ct. 663
,
54 L.Ed. 930
(1910), the
Court, in
a
form of
circular constitutional argument, stated that the due process clause of the fourteenth amendment could not require a state to prove intent because states had frequently permitted criminal liability to attach based upon negligence or under strict liability statutes implicating the “public welfare.”
Id.
at 67-68
,
30 S.Ct. at 665-66
. On the ground that “[a] concession of exceptions would destroy the principle,” the Court maintained that it could not rule for the defendants without ruling that all criminal statutes invariably require proof of intent.
Id.
at 68
,
30 S.Ct. at 666
. It declined to set aside the legislation in question simply “because it is harsh.”
Id.
at 69
,
30 S.Ct. at 666
.
Shevlin-Carpenter’s facts are probably more significant than its sweeping reason. The Minnesota statute at issue proscribed penalties for taking lumber without a permit. Defendants had obtained a permit but continued to log after it had expired. The state appellate court overruled the trial court’s finding that defendants had acted wilfully, finding that they mistakenly believed the permit to be valid. The trial court had awarded treble damages to the state, as the statute permitted upon a finding of wilful ■violation, but the appellate court reduced .the award to the double damages permitted in a case of involuntary violation. The statute also permitted a sentence of up to two years imprisonment. The Supreme Court explicitly declined the defendants’ invitation to treat the statute as unseverable and to consider the constitutional permissibility of a sentence of imprisonment for this offense.
Id.
at 65-67
,
30 S.Ct. at 664-65
. In effect, the Court held that monetary penalties could be imposed for logging without a permit in the absence of
mens rea.
So understood,
Shev-lin-Carpenter
simply recognizes the constitutional validity of strict liability for certain public-welfare offenses carrying fines.
The Court’s opinion in
Nash v. United States,
229 U.S. 373
,
33 S.Ct. 780
,
57 L.Ed. 1232
(1913), was the occasion for Justice Holmes’ celebrated statement that “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as a jury subsequently estimates it, some matter of degree.”
Id
at 377,
33 S.Ct. at 781
. An indictment under the Sherman Act was challenged on the ground that the statute was too vague for ppplication in the criminal context. Though
mens rea
was not directly at issue, the Court rejected the vagueness claim in a brief discussion in which it maintained that criminal liability is frequently imposed based upon the actor’s negligence and, therefore, it is constitutionally permissible to put upon the defendant the risk of criminal conviction should he or she fail to exercise due care.
Id.
at 376-78
,
33 S.Ct. at 781-82
.
The Court gave perhaps its strongest endorsement to strict liability in
United States v. Balint,
258 U.S. 250
,
42 S.Ct. 301
,
66 L.Ed. 604
(1922), though the terse opinion included little in the way of reasoning. The defendants were indicted under the Narcotics Act of 1914 for selling an amount of opium derivative and an amount of coca derivative without completing the required Internal Revenue Service (IRS) form. They complained that the indictment did not charge that they knew the substances to be drugs falling with
*507
in the statute’s reach. The Court stated, “While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime ... there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement.”
Id.
at 252
,
42 S.Ct. at 302
. The Court rejected the notion that due process invariably requires proof , of intent, stating, “Many instances of [strict liability] are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.”
Id.
In the case of this statute, Congress’ intent to dispense with
mens rea
was clear since the law “merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic.”
Id.
at 253
,
42 S.Ct. at 302
.
Those who have severely criticized the
Balint
decision have probably overstated its significance and continuing import.
See, e.g.,
Sayre,
Public Welfare, supra,
at 80-81
(Bal-int
decision can be justified “only on the ground of the extreme popular disapproval of the sale of narcotics”); Herbert L. Packer,
Mens Rea and the Supreme Court,
1962 Sup.Ct.Rev. 107, 113-15 (1962) (“flimsy” opinion in
Balint
was “egregious” example of Court’s casual approach' to
mens
rea). It remains a striking and probably anomalous decision because of the severity of penalty the statute allowed: up to a $2000 fine and five years imprisonment. Narcotics Act of 1914, Pub.L. No. 223, § 9,
38 Stat. 785
(1914) (Harrison Act). Nevertheless, the statute must be understood in context. It predated the era during which all possession and sale of drugs came to be regarded as serious crimes. Aside from its penalty, it fairly can be characterized as a regulation. It required manufacturers and distributors of certain narcotics to register with the IRS, pay a special tax of one dollar per year and record all transactions on forms provided by the IRS.
Id.
§§ 1-3 and 8.
As a case about strict liability and narcotics,
Balint
has no application today. ■ Prior to the Harrison Act narcotics had been freely available without prescription. This change by tax statute was a first modest transitional step towards the present complex and serious criminal statutes dealing with narcotics offenses. They have come to be treated as among the most serious of crimes in the federal criminal code.
See, e.g.,
21 U.S.C. §§ 960
(mandatory minimum sentences as high as 10 years for certain drug offenses); 848(e) (possible sentence of death for drug offenses in which killing results).
The Court also has approved a sort of strict liability-negligence hybrid standard in cases involving criminal liability of corporate officers. In
United States v. Dotterweich,
320 U.S. 277
,
64 S.Ct. 134
,
88 L.Ed. 48
(1943), a pharmaceutical company and its president were charged under a statute prohibiting the introduction into interstate commerce of adulterated or misbranded drugs. The jury was divided as to the corporation but convicted the president, Dotterweich, on three counts. The Court described the statute as
a now familiar type of legislation’whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — -awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in
responsible relation
to a public danger. .
Id.
at 280-81
,
64 S.Ct. at 136
(emphasis added). After surveying the history of this and other food and drug legislation,
id.
at 281-84
,
64 S.Ct. at 136-38
, the Court found that Congress intended that there be no requirement of proof of
mens rea
under the law in question:
Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing hardships, Congress has preferred to place it upon ■those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on
*508
the innocent public who are wholly helpless.
Id.
at 284-85
,
64 S.Ct. at 138
. Justice Murphy, joined by three other Justices, dissented on the ground that “[i]t is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and ought not lightly ... be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing.”
Id.
at 286
,
64 S.Ct. at 138
(Murphy, J., dissenting).
Dottenveich
has several limiting aspects. The statute punished the conduct at issue as a misdemeanor.
Id.
at 281
,
64 S.Ct. at 136
. Not only the penalty but also the matter involved — adulterated or misbranded pharmaceuticals — place the case squarely within the realm of traditional public-welfare offenses. The Court, in language sounding in negligence, spoke of placing the “hazard” and the “hardship” of acting carefully upon the person or persons so situated as to be capable of learning (and perhaps obligated to learn) the facts necessary to understand the risk of harm created. Finally, the Court apparently limited its allowance of vicarious liability of corporate officers to those “standing in responsible relation” to the danger.
United States v. Park,
421 U.S. 658
,
95 S.Ct. 1903
,
44 L.Ed.2d 489
(1975), clarified this “responsible relation” language. Defendants received food that had been shipped in interstate commerce and kept it in a warehouse where it became adulterated. The corporate defendant pled guilty but its president, Park, did not. The evidence showed that Park had some knowledge of and responsibility for ongoing sanitation problems but no involvement with the shipment in question.
Id.
at 661-65
,
95 S.Ct. at 1906-08
. The Court approved Dottenveich’s imposition of liability upon those who have “a responsible share. in the furtherance of the transaction which the statute outlaws.”
Id.,
421 U.S. at 670
,
95 S.Ct. at 1910
(quoting
Dottenveich,
320 U.S. at 284
,
64 S.Ct. at 138
). It ruled that the statute permissibly imposed “not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur.”
Id.
421 U.S. at 672
,
95 S.Ct. at 1911
. The defendant may come forward, the Court noted, with evidence to support a claim that he or she was “powerless” to prevent the violation.
Id.
at 673
,
95 S.Ct. at 1912
. The dissent insisted that at least “common-law negligence” must be shown by the government.
Id.
at 683
,
95 S.Ct. at 1917
(Stewart, J., dissenting).
Park
and
Dottenveich
do no more than place a gloss on the Court’s general acceptance of strict liability for public-welfare offenses.
See
John Calvin Jeffries, Jr. & Paul B. Stephan III,
Defenses, Presumptions, and Burden of Proof in the Criminal Law,
88 Yale L.J. 1325
, 1375 (1979) (“[Njeither
Dot-terweich
nor
Park
involved a traditional crime carrying the societal stigma usually associated with criminal conviction, and neither case resulted in a sentence of imprisonment.”). In cases involving matters traditionally within the public-welfare realm-dangerous foods, misbranded pharmaceuticals, toxic substances and the like — the strong public interests in enforcing the regulations at issue may arguably be viewed as justifying imposition of a strict duty of supervision and control upon corporate officers. It is, in effect, a
prima facie
strict liability standard because the defendant officer’s negligence in presumed. Lack of connection to the harm caused must be established as a defense.
See generally
Ruth Ann Weidel et al,
The Erosion of Mens Rea in Environmental Criminal Prosecutions, 21
Seton Hall L.Rev. 1100 (1991) (detailing how “responsible corporate officer doctrine” which originated with
Dottenveich
increasingly has been applied to polluters).
The Court’s treatment of strict liability in the criminal law continues to provide little guidance with respect to the constitutional status of the
mens rea
principle. The Court’s analysis generally has failed to divide clearly statutory interpretation from constitutional law. Two relatively recent cases decided the same term are illustrative. In
United States v. International Minerals & Chem. Corp.,
402 U.S. 558
,
91 S.Ct. 1697
,
29 L.Ed.2d 178
(1971), involving a fairly typical example of a public-welfare offense, a corporate defendant was charged with shipping dangerous acids in interstate commerce while
*509
knowingly failing to indicate on the shipping papers that the acids were classified as “Corrosive Liquids” by the Code of Federal Regulations. The Court’s holding was straightforward. It observed that this was not a strict liability offense since knowledge of the shipment was required.
Id.
at 560
,
91 S.Ct. at 1699
. The question was whether knowledge of the regulation also was required.
Id.
Canvassing the legislative history, the Court found that Congress did not intend: any exception to the principle that ignorance of the law is no excuse.
Id.
at 562-64
,
91 S.Ct. at 1700-01
. But the Court concluded its opinion with the following dicta warning of constitutional limits provided by requirements of
mens rea:
There is leeway for the exercise of congressional discretion in applying the reach of
“mens rea."
... In
Balint
the Court was dealing with drugs, in
Freed
[discussed below] with hand grenades, in this ease with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in
[United States v. Murdock,
290 U.S. 389
[,
54 S.Ct. 223
,
78 L.Ed. 381
] (1933) ],
“mens rea
” as to each ingredient of the offense. But where, as here and as in
Balint
and
Freed,
dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.
Id.
402 U.S. at 564-65
,
91 S.Ct. at 1701
.
United States v. Freed,
401 U.S. 601
,
91 S.Ct. 1112
,
28 L.Ed.2d 356
(1971), like
Bal-int,
involved conduct at least associated with more traditional criminal activity. The statute under consideration made it unlawful for a person to receive or possess a “firearm” not registered to him or her in records kept by the federal government. The statute defined the term “firearm” as limited to a group of highly dangerous devices, including the hand grenades at issue in
Freed
.
The trial court dismissed the indictment based upon the failure to allege “scienter.” The Supreme Court reversed, stating,
The presence of a “vicious will” or
mens rea ...
was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare.
Id.
at 607
, 91 S.Ct. at 1117 (citation omitted). The Court apparently was satisfied that
Freed
could be cabined within the narrow realm of public-welfare offenses:
The present case is in the category neither of
Lambert
[discussed below] nor
Morissette
,
but is closer to
Dottenveich.
This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in
[Balint],
where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act.
Id.
401 U.S. at 609
, 91 S.Ct. at 1118. In a concurring opinion, Justice Brennan lamented “the confusion surrounding a difficult, but vitally important, area of the law,”
id.
at 612, 91 S.Ct. at 1119, and applied a careful element-by-element
mens rea
analysis taken from the Model Penal Code indicating that Congress did not intend to require knowledge of the unregistered status of the grenades.
Id.
at 610-16, 91 S.Ct. at 1118-21.
ii.
Mens Rea
Generally
A second -group of cases have insisted on adherence to the
mens rea
principle or dealt with it on an element-by-element basis. The most vigorous defense of the principle can be found-in. Justice Jackson’s opinion for the Court in
Morissette v. United States,
342 U.S. 246
,
72 S.Ct. 240
,
96 L.Ed. 288
(1952). Morissette, a scrap collector, removed three tons of spent shell casings from a federal bombing range while on a hunting expedition, believing them to be refuse in which the government no longer had any interest. He was indicted on a charge that he “did unlawfully, wilfully and knowingly steal and eon-
*510
vert” the property of the United States. His counsel was prevented from arguing to the jury that Morissette acted with innocent intention. The court instructed the jury that it had to find only that Morissette intended to take the property. The Court rejected the notion that omission of mention of criminal intent from a statute dispenses with the requirement.
Id.
at 250
,
72 S.Ct. at 243
. Justice Jackson wrote,
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.
Id.
at 250-51
,
72 S.Ct. at 243
. He also stated, however, that the Court had not “undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not” and that it would “attempt no closed definition, .for the law on the subject is neither settled nor static.”'
Id.
at 260
,
72 S.Ct. at 248
.
After a lengthy discussion of the development and nature of public-welfare offenses,
id.
at 251-60
,
72 S.Ct. at 243-48
, Justice Jackson concluded that Morissette’s offense could not fairly be considered to be among that group of strict liability crimes. He wrote,
Stealing, larceny, and its'variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony....
Id.
at 260
,
72 S.Ct. at 248
. Despite the seeming constitutional dimension to its discussion of the
mens rea
principle, the Court ultimately purported to rule in favor of Mor-issette on grounds of statutory construction:
[Wjhere Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the. judicial mind unless otherwise instructed. In such case, the absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
We hold that mere omission from [the statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced.
Id.
at 263
,
72 S.Ct. at 249
.
Subsequent cases, in addition to those strict liability decisions already discussed, have cast doubt upon the constitutional endurance of Justice Jackson’s insistence upon faithfulness to first principles of
mens rea.
Despite the fact that only Justices Douglas and Stewart dissented from the Court’s ruling,
United States v. Feola,
420 U.S. 671
,
95 S.Ct. 1255
,
43 L.Ed.2d 541
(1975), is a difficult decision to analyze in traditional
mens rea
terms. A federal statute punished assault upon a federal officer engaged in the performance of official duties. Feola and his coconspirators arranged a heroin sale, planning either to pass off a form of sugar to them buyers or simply to steal the purchase money at the time of the transaction. The prospective buyers were in fact federal agents. Wh