The origin of modern criminal law can be traced to early feudal times. From its inception, the criminal law expressed both a moral and a practical judgment about the societal consequences of certain activity: to be a crime, the law required that an individual must both cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. Classically, lawyers capture this insight in two principles: in order to be a crime there must be both an actus reus (a bad act) and a culpable mens rea (a guilty mind). At its roots, the criminal law did not punish merely bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical authorities and the latter were for amelioration in the tort system. In America today, this classical understanding of criminal law no longer holds.
The requirement of an actual act of some form is fundamental. As an initial premise, Anglo-American criminal law does not punish thought. For a crime to have been committed there must, typically, be some act done in furtherance of the criminal purpose. The law has now gone far from that model of liability for an act and, in effect, begun to impose criminal liability for the acts of another based upon failures of supervision that are far different from the common law's historical understanding.
Similarly, the law historically has required that before an individual is deemed a criminal he must have acted with an intent to do wrong. Accidents and mistakes are not considered crimes. Yet contemporary criminal law punishes acts of negligence and even acts which are accidental. In the regulatory context, as Justice Potter Stewart has noted, there is, in effect, a standard of near-absolute liability.
Expanded Reach of Criminal Law
To these fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent times the reach of the criminal law has been expanded so that it now addresses conduct that is wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum prohibitum)--that is, a wrong created by a legislative body to serve some perceived public good. These essentially regulatory crimes have come to be known as "public welfare" offenses.
Thus, today the criminal law has strayed far from its historical roots. Many statutes punish those whose acts are wrongful only by virtue of legislative determination. The distortion of the classical criminal law has arisen for a variety of reasons (some of which may have been accompanied by benign motives). For example, the Enron scandal and similar acts of intentional corporate fraud have led to overly broad reform proposals that may trap honest but unsophisticated corporate managers. But whatever the cause, the distortion is not without its consequences. The landscape of criminal law today is vastly different from what it was 100 years ago--so much so as to be almost unrecognizable.
Lack of Judicial Constraint
Because the courts have deliberately chosen a limited, almost self-abnegating role in constraining the use of criminal sanctions, no effective judicial constraint currently limits the extent to which individual conduct that bears no direct causal relationship to a societal harm may be criminalized. Nor is there a limit on the extent to which, in the social and economic context, the legislatures may dispense with the traditional conceptions of mens rea. The consequences of this are two-fold: a pathological legislative approach to criminal law and an excess of prosecutorial discretion.
The legislative impetus is clear--there is a "market" of public approval for more criminal laws and no effective consideration of countervailing costs to society. And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public. Where once the law had strict limits on the capacity of the government to criminalize conduct, those limits have now evaporated. Society has come, instead to rely on the conscience and circumspection in prosecuting officers. Or, as the Supreme Court said in United States v. Dotterweich, Americans are obliged to rely only on "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" to determine criminal conduct. In effect, the legislative branch has transferred a substantial fraction of its authority to regulate American social and economic conduct to those who have no expertise in the matter: prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any ability to consider the broader societal impacts of their decisions.
Where once, to be a criminal, an individual had to do an act (or attempt to do an act) with willful intent to violate the law or with knowledge of the wrongful nature of his conduct, today it is possible to be found criminally liable and imprisoned for a substantial term of years for the failure to do an act required by law, without any actual knowledge of the law's obligations and with no wrongful intent whatsoever. These developments are advanced in the name of the "public welfare"--an express invocation of broader social needs at the expense of individual liberty and responsibility. It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal law over the morally grounded understanding of criminal law advanced by William Blackstone. One may, and indeed one should, doubt the wisdom of such a course. Given how the criminal law has developed, a free people are constrained to ask the question: Are broader social needs well served when individual liberty and responsibility suffer?
Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.