Edward Hanousek was employed as roadmaster
by the White Pass & Yukon Railroad, whose railway runs between
Skagway, Alaska, and Whitehorse, Yukon Territory, Canada. As
roadmaster, Hanousek was responsible under his contract for "the
safe and efficient maintenance and construction of track,
structures and marine facilities of the entire railroad."
One
of the projects under Hanousek's supervision was a rock-quarrying
project at a site alongside the railroad. The project involved
blasting rock outcroppings, working the fractured rock toward
railroad cars, and loading the rock onto railroad cars with a
backhoe. Hanousek's company hired Hunz & Hunz, a contracting
company, to provide the equipment and labor for the project.
At
the site, a high-pressure petroleum pipeline ran parallel to the
railroad within a few feet of the tracks. To protect the pipeline
during the project, a work platform of sand and gravel was
constructed on which the backhoe operated to load rocks over the
pipeline and into railroad cars. The location of the work platform
changed as the work progressed along the railroad tracks. In
addition, when work initially began in April 1994, Hunz & Hunz
covered an approximately 300-foot section of the pipeline with
railroad ties, sand, and ballast material for protection. After
Hanousek took over responsibility for the project in May 1994, he
concluded that no further sections of the pipeline along the
1,000-foot work site would be protected, with the exception of the
movable backhoe work platform.
On
the evening of October 1, 1994, while Hanousek was off-duty away
from the site, Shane Thoe, a Hunz & Hunz backhoe operator, used
the backhoe on the work platform to load a train with rocks. After
the train departed, Thoe noticed that some fallen rocks had caught
the plow of the train as it departed and were located just off the
tracks in the vicinity of the unprotected pipeline. Thoe moved the
backhoe off the work platform and drove it down alongside the
tracks between 50 to 100 yards from the work platform. While using
the backhoe bucket to sweep the rocks from the tracks, Thoe struck
the pipeline causing a rupture. The pipeline was carrying heating
oil, and an estimated 1,000 to 5,000 gallons of oil were discharged
over the course of many days into the adjacent Skagway River.
Hanousek (not Thoe) was charged with two
federal crimes: negligently discharging a pollutant into a waterway
of the United States (a misdemeanor offense punishable by up to 1
year in prison) and making false statements for allegedly lying to
the Coast Guardsmen investigating the incident. His superior, M.
Paul Taylor, was charged with the same negligent discharge offense
and with conspiracy to make false statements for his part in
Hanousek's alleged cover-up. The government's theory was not that
either Hanousek or Taylor had directly caused the accident, but
that their negligence in failing to supervise Thoe had contributed
to the accident because they had failed to exercise the care
required of a reasonable supervisor in that position of authority.
At trial, Taylor was acquitted of both charges and Hanousek was
acquitted of the more serious felony false statement charge.
Hanousek was, however, convicted of the charge of negligence for
his failure to appropriately supervise the construction project and
sentenced to 6 months imprisonment. His conviction was subsequently
affirmed on appeal.
Regulatory
Crimes in America Today
The law under which Hanousek was prosecuted is far from
unique. Congress has exercised precious little self-restraint in
expanding the reach of federal criminal laws to new regulatory
areas.
Estimates of the current size of the body
of federal criminal law vary. It has been reported that the
Congressional Research Service cannot even count the current number
of federal crimes. The American Bar Association
reported in 1998 that there were in excess of 3,300 separate
criminal offenses. More than 40 percent of
these laws have been enacted in just the past 30 years, as part of
the growth of the regulatory state. And these laws are scattered
in over 50 titles of the United States Code, encompassing roughly
27,000 pages. Worse yet, the statutory
code sections often incorporate, by reference, the provisions and
sanctions of administrative regulations promulgated by various
regulatory agencies under congressional authorization. Estimates of
how many such regulations exist are even less well settled, but the
ABA thinks there are "[n]early 10,000." The appetite for more
federal criminal laws is driven principally by political
consideration, and not by any consideration
of whether particular laws are intrinsically federal in nature. The growth
of "public welfare" offenses will, therefore, be restrained (if at
all) only by a public or a court system educated as to the need for
restraint.
Nor
is the growth in the number of federal criminal statutes merely an
academic question, without real world effects. To the contrary,
between March 2001 and March 2002 (the latest year for which data
are available), federal prosecutors commenced 62,957 cases,
involving 83,809 individual defendants. More than 3,100 of these
defendants were charged with crimes categorized as violations of
"federal statutes"--a category broadly (though not precisely)
congruent with charges reflecting violations of a regulatory
program.
This number exceeds the number of federal prosecutions during the
same year for a host of common law offense categories, including
murder, robbery, embezzlement, forgery, and sex offenses. Put
another way, more federal prosecutorial resources are invested in
regulatory prosecutions than in the prosecution of forgery
charges.
The Changing
Face of Criminal Law
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. As Hanousek demonstrates, this classical understanding of
criminal law no longer holds.
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. Where once the criminal law was an
exclusively moral undertaking, it now has expanded to the point
that it is principally utilitarian in nature. In some instances the
law now makes criminal the failure to act in conformance with some
imposed legal duty. In others the law criminalizes conduct
undertaken without any culpable intent. And 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). Some have argued that the growth in
the use of criminal sanctions is a response to the increasing
industrialization of American economic activity and the difficulty
of capturing within the construct of criminal law the "wrongs" done
to society arising from that activity. 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. Others argue that public
choice theories provide a better explanation. 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.
The
result in Hanousek thus captures three troubling trends in criminal
law. It involves crimes within a regulated industry that would not,
under any historical understanding, be perceived as inherently
morally wrong; it involves the criminalization of simple negligence
(that is, of acts commonly thought to be more appropriately
addressed through the civil tort system); and it involves
conviction of a manager for what is, in essence, his failure to
manage the conduct of a subordinate. These changes are especially
significant given the gravity of the nature of criminal liability.
Not only does the imposition of such liability give rise to public
condemnation and fines, but it can, of course, also result in an
individual's loss of personal liberty. Historically, this most
severe of societal sanctions has been reserved for conduct most
deserving of condemnation--a limitation that has, in the past 100
years, been significantly eroded.
This
paper is an effort to outline the scope and nature of this
historical change. Only by understanding the source of these trends
can these doctrinal developments be fairly judged.
The Actus Reus And Managerial Liability
The Historical
Meaning of Actus Reus
The concept of individual responsibility lies at the
heart of the criminal law. "It is a fundamental principle of
Anglo-Saxon jurisprudence that guilt is personal."
Traditionally, the law punishes individuals because they are
responsible for certain criminal acts they have personally
committed or they are liable for the criminal acts of others with
whom they have consciously associated themselves when those others
engaged in criminal conduct. Thus, the requirement of an actus reus
links two concepts: the necessity for an act and the necessity for
a relationship between the criminal act and the individual who is
held criminally culpable for the act's performance.
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. As
Blackstone said in discussing whether it would be a crime to
imagine the death of the King: "[A]s this compassing or imagining
is an act of the mind, it cannot possibly fall under any judicial
cognizance, unless it be demonstrated by some open or overt act."
This
is not to say that the criminal law requires that an act be
completed before a crime is committed; the King does not have to
die for treason to occur. An attempt to commit a felony or a
misdemeanor is itself a crime. But ultimately, the common
law has required that some act bearing a causal link to the crime
or the attempted crime occur.
More
significantly, the law generally requires an association between
the criminal actus reus and the individual or individuals who have
committed the acts. Those who do not act are not guilty of a crime.
Put another way, mere acquiescence in the criminal conduct of
another is not enough to impose criminal liability on an individual
for the acts of a third party. The simplest case, of
course, is when the defendant personally engages in a voluntary act
of some sort that is causally linked to a crime. In that situation
the requirement of a connection between the act and the actor is
easily satisfied.
Liability for
the Acts of Another
The law has also long recognized the potential for
criminal liability for the acts of others. Most typically this
arises because an individual has in some way directly aided and
abetted the commission of the crime. Thus, if one drives the
getaway car for the bank robbery, one is equally guilty of the
theft even though the confederate committed the actual robbery. So,
too, one may cause a crime to occur through the acts of an innocent
agent who is unaware of the criminality of the conduct. And, one
may be guilty of joining in a conspiracy to commit a crime, so long
as one of the participants in the conspiracy does an act in
furtherance of the conspiracy.
But
these broad rules of liability for the acts of another
traditionally have had limits. Those limits are illustrated well by
an early English case, Rex v. Huggins. The warden of a prison and
his deputy were charged with the murder of a prisoner for keeping
him in an "unwholesome place." On appeal the deputy's conviction
was affirmed, for it was the deputy who had taken up the victim,
Arne, and imprisoned him. But the justices of the King's Bench were
unanimously of the opinion the warden could not be held criminally
liable for his deputy's actions. As Lord Chief Justice Raymond
wrote:
So
that if an act be done by an under-officer, unless it is done by
the command or direction, or with the consent of the principal, the
principal is not criminally punishable for it. In this case the
fact was done by Barnes [the deputy]; and it no where appears in
the special verdict that [the warden, Huggins] ever commanded, or
directed, or consented to this duress of imprisonment, which was
the cause of Arne's death. 1. No command or direction is found. And
2. It is not found that Huggins knew of it.
Liability for
"Negative Acts"
The final piece of the historical puzzle lies in the concept of
criminal liability for "negative acts," that is, criminal liability
for the failure to act. Such liability has historically been rare,
for the general rule is that "[s]tarting with a human act, we must
next find a causal relation between the act and the harmful result;
for in our law--and it is believed in any civilized law--liability
cannot be imputed to a man unless it is in some degree a result of
his act."
Nonetheless, the common law has recognized
that in certain limited circumstances one may be held criminally
liable without having done an affirmative act, precisely because
the failure may be said to be a cause of the resulting harm.
Historically, the hallmark of such liability is the existence of
some legal duty on the part of the defendant to act. That duty has,
typically, arisen through the common law, based upon some special
legal relationship between the criminal defendant and the activity
in question. Thus, for example, parents may be held liable for
failing to provide care or support for their children. Similarly,
a master of a vessel might be criminally liable for his failure to
maintain a safe ship when that failure is the cause of the drowning
of his passengers. But criminal responsibility
only arises where the defendant is in fact capable of performing
the act he is called upon to perform, and where the legal duty to
act exists. It does not, for example,
extend to impose criminal liability on a spouse for failing to
summon medical aid for his competent adult spouse who has
consciously chosen not to seek medical assistance.
Contemporary
Concepts of Managerial Liability
In the past 50 years, American law has drifted far from
this traditional concept of criminal liability where a legal duty
to act arises from the special nature of a relationship between the
defendant and the victim of the crime (or the harm caused by the
crime).
Social and legal obligations have come to be imposed by statute
rather than through the common law. Early instances of this
phenomenon continued to require some close relationship between the
harm caused and the actor upon whom the duty was imposed. For
example, the owners of cars were criminally liable for accidents
caused while others were driving but only, apparently, if they were
present in the car at the time of the accident.
The
law has now gone far from that model of liability for the failure
to 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 doctrine of liability for negative
acts. The trend was begun by the Supreme Court in 1943, in United
States v. Dotterweich. There the Court addressed a
provision of the Food and Drug Act making it a crime to introduce
into commerce an adulterated or misbranded drug (that is, one not
suitable for consumption or mislabeled). Dotterweich was the
president of a pharmaceutical company that had, indisputably,
transported certain adulterated drugs in interstate commerce. But
it was equally clear that there was "no evidence . . .of any
personal guilt" on the part of Dotterweich; there was no proof that
"he ever knew of the introduction into commerce of the adulterated
drugs in question, much less that he actively participated in their
introduction."
Nonetheless, by a 5-4 vote, the Supreme
Court determined that Dotterweich could be held liable for his
"responsible share in the furtherance of the transaction which the
statute outlaws." The Court reasoned that
since the purpose of the legislation "touches phases of the lives
and health of people which, in the circumstances of modern
industrialism are largely beyond self-production" Congress
could reasonably have determined to "penalize[] the transaction
though consciousness of wrongdoing be totally wanting" because it
"preferred to place [the hardship] 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 the innocent public
who are wholly helpless." As a consequence, guilt was
"imputed to [Dotterweich] solely on the basis of his authority and
responsibility as president and general manager of the
corporation."
The
prosecution of managers based upon theories of managerial liability
has increased since Dotterweich. In one case, the president of Acme Food,
John Park, was charged with violation of the Food and Drug Act.
Park had been told of a rodent problem in a Baltimore warehouse
(Park worked in Philadelphia). He delegated responsibility for
responding to the rodent problem to the Acme Baltimore division
vice president. When the problem was not resolved by the vice
president's actions, Park was charged and convicted of a crime
because he bore a "responsible relation to the situation even
though he may not have participated in it personally." In short,
Park was convicted "by virtue of [his] managerial position [and]
relation to the actor" who actually committed the offense. According
to the Court, managers in Park's position have
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. The requirements of
foresight and vigilance imposed on responsible corporate agents are
beyond question demanding, and perhaps onerous, but they are no
more stringent than the public has a right to expect of those who
voluntarily assume positions of authority in business enterprises
whose services and products affect the health and well-being of the
public that supports them.
In
other words, as has now become commonplace, American society will
enforce complex and often unclear regulatory obligations not
through the law of tort and civil liability but through the
stringent provisions of criminal law. Those who voluntarily choose
to engage in productive economic conduct place themselves at risk
of criminal sanction for their "felony failure to supervise." There
is no better way to dissuade those who work to produce goods and
services for society from continuing to do so than to criminalize
their conduct without reference to whether or not they have
personally acted in a culpable manner.
One
can readily see the consequences of this development of the law.
Under current doctrine, Edward Hanousek effectively was deemed
liable for the conduct of Shane Thoe, without any demonstration
that Hanousek had deliberately or purposefully chosen to associate
himself with Thoe's acts or that Hanousek had affirmatively acted
in any way to cause the criminal injury involved--the rupture of
the pipeline. At the government's insistence, the court rejected
Hanousek's request that the jury be instructed that he was "not
responsible for and cannot be held criminally liable for any
negligent acts or omissions by Shane Thoe or other Hunz & Hunz
personnel." It also rejected his argument that he could not
personally be deemed to have caused the accident if the actual
result was not within the risk of which he was aware or should have
been aware. Instead the court said that Hanousek could be deemed
guilty for, in essence, his managerial failings so long as he had a
"direct and substantial" connection to the discharge and the jury
concluded that the discharge would not have occurred "but for"
Hanousek's actions.
The Reduction And Elimination Of The Mens
Rea Requirement
The Historical
Meaning of Mens Rea
The second fundamental precept of criminal law is the
concept of mens rea (mens rea is Latin for "guilty mind"; lawyers
use it as a shorthand for the concept of intent), which must be
joined with the illegal act. Historically, the law 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: "It is a fundamental principle of Anglo-Saxon
jurisprudence that guilt . . . is not lightly to be imputed to a
citizen who . . . has no evil intention or consciousness of
wrongdoing." In this area also, recent
developments of the law have diverged far from that model.
Courts attempting to define the degree of
intent (also sometimes called "scienter") that the government must
prove for various criminal statutes have often written of the
difficulty in determining what intent requirement the legislature
adopted and in defining the terms that the legislature used. There
is "variety, disparity and confusion" in the many judicial
definitions of the "requisite but elusive mental element" of many
criminal offenses.
In a
clarifying effort, the Model Penal Code has recognized four
different states of mind from which a legislature might chose in
defining a crime's scienter requirement: purpose, knowledge,
recklessness, and negligence. To these four, one may add
a fifth possibility: strict liability (or the proof of a crime
without proof of any intent). By "purpose" one means the intent to
purposefully do an act, knowing that it is an unlawful act. By
"knowledge" one means the intent to do an act, deliberately and not
by mistake or accident, but without the additional requirement that
the actor know his act was unlawful. "Recklessness" means a callous
and gross disregard for a risk created by an actor's conduct (what
one might colloquially call "criminal negligence"). By contrast,
"negligence" is intended to denote simply a failure to take the
care that a reasonable person in a similar situation would.
Each
of these intent requirements thus connotes a progressively less
directed and intentional form of conduct. And the trend in criminal
law has been to follow that progression; history tells the tale of
diminished intent requirements for criminal laws.
The
requirement that a crime involve culpable purposeful intent has a
solid historical grounding. As Justice Robert 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. Unqualified acceptance of this doctrine by English
common law was indicated by Blackstone's sweeping statement that to
constitute any crime there must first be a "vicious will."
Thus, the very earliest English common law
recognized that one who intended to commit an act (say injuring a
horse) and who mistakenly committed a different crime (killing the
horse) could not be said to have intended the graver crime of
intentional killing of the animal.
To Act
"Knowingly"
But this conception of intent (or what the Model Penal
Code would call "purpose")--that is, a conception necessitating
proof that a defendant intended both to do the act which
constituted the offense and to accomplish the particular harm
prohibited--did not long survive even in the common law. The
English and American courts quickly came to the view that in most
legal contexts a criminal actor who intends to engage in an act is
liable for whatever harm eventuates, even if it is different from
that which was within his original contemplation. In the
words of the Model Penal Code one can act "knowingly" or with the
general intent to do the acts which constitute the offense without
regard to any specific intent to do a wrongful act or violate a
law.
In
the context of regulatory offenses this concept of "knowing" intent
has also taken hold. Building on the time-honored maxim that
"ignorance of the law is no excuse" courts now routinely conclude
that one can be convicted of a crime for having acted knowingly
(that is purposefully doing an act) without the additional
requirement that the government prove that the defendant had a
conscious desire to achieve a particular end or to violate a known
legal duty (typically one found in the form of a statutory or
regulatory prohibition). Thus, for example, violations of the
Sherman Antitrust Act require only proof of deliberate business
conduct without proof of intent to monopolize or intent to violate
the law.
To Act
"Recklessly" or "Negligently"
The law also recognizes yet another culpable mental state with a
further diminished aspect of purposefulness: One may be deemed
guilty of a crime if one has acted with "criminal negligence." One
common law definition of "criminal negligence" (that is, negligence
of such a substantial kind and degree as to warrant punishment)
suggests the nature of the historical definition: "aggravated,
culpable, gross or reckless [conduct], that is, the conduct of the
accused must be such a departure from what would be the conduct of
an ordinarily prudent or careful man under the same circumstances
as to be incompatible with a proper regard for human life." Under this
standard, for example, chiropractic doctors who have recommended
fasting as a treatment for tuberculosis have been convicted of
culpably negligent manslaughter. Today, this type of
"negligence" is more commonly called "recklessness"--that is, the
awareness of a risk and disregard of the risk in circumstances that
the law would consider unreasonable.
But
this definition, limiting "criminal negligence" to, in effect,
wanton recklessness, is no longer the rule. In many instances, the
courts have allowed criminal convictions upon a showing of simple
negligence--that is, a mere failure to exercise "reasonable care"
that might normally give rise to civil tort liability. These cases,
in contrast to those involving reckless conduct, concern situations
where the actor was actually unaware of the risk involved, though
perhaps he ought to have been.
Hanousek's case is one example of this
trend: Hanousek had argued that criminally negligent conduct had to
encompass some aspect of moral wrongdoing--in other words, a gross
disregard of reasonable standards. He requested that the jury be
instructed that the government had to prove that his negligence
constituted "a gross deviation from the standard of care that a
reasonable person would observe in the situation"--a concept
consistent with a traditional understanding of moral culpability.
The court rejected that argument, concluding that the negligence
standard for a criminal violation of law was identical to that for
as a civil violation: simple negligence for the failure to use
reasonable care.
Strict
Liability
And in the area of regulatory crimes, even proof of
negligent conduct is not always necessary; the courts have,
regrettably, accepted legislatures' increasing attempts to do away
with the mens rea requirement altogether. In other words, a
defendant may be found guilty of the crime even if he had no
intention whatsoever that it occur and the actus reus arose, for
example, as a result of an accident. Though the elimination of all
mens rea requirements--so that purely innocent conduct is punished
criminally--ought to be deemed a violation the Constitution, the
courts have said that is not.
It
is difficult, if not impossible, to identify when the first strict
liability offense entered the federal statute books. One scholar
has concluded that it was no earlier than 1850, and that prior to
that time all common law crimes required proof of some form of mens
rea. An
early example is Regina v. Stephens, where the bed-ridden
80-year-old owner of a granite quarry had given management of the
quarry to his children. Contrary to his direct orders (and those of
his sons), workers at the quarry deposited rubbish in the River
Tivy, thereby creating a nuisance. The owner, Stephens, was deemed
strictly liable and convicted of the criminal offense. Today,
although rare, there are a number of criminal offenses that impose
criminal liability without fault. And where the doctrine was
originally limited to misdemeanor criminal liability it is now
often imposed as part of felony prosecutions. For example, one
court held a company strictly liable for the death of certain
migratory birds, "even if the killing of the birds was accidental
or unintentional." Similarly, courts have held
strictly liable those whose conduct contravenes the laws relating
to the sale of liquor and narcotics, foods, and possession of
unregistered firearms, among others.
Intent and
Regulatory Offenses
But this description of the mens rea requirements that
have developed is incomplete. It does not fully make clear the
extent to which actors in a highly regulated industry are subject
to criminal liability for their acts. Though the law often requires
that they have acted "knowingly"--a seeming protection from the
imposition of strict liability--that requirement is but a parchment
barrier to what is, in effect, the imposition of absolute
liability. The law has been interpreted so that, in regulated
industries, those who participate in the industry are presumed to
know all of the intricate regulatory arcana that govern their
conduct.
As a consequence, the only requirement imposed by requiring proof
that one has acted "knowingly" is that the government must
demonstrate that the defendant has purposefully done the act
constituting the offense--and in the context of regulated economic
conduct that showing is trivial. Moreover, proof that one in fact
lacked knowledge of the regulatory requirement at issue is,
uniformly, no defense to the prosecution.
Consider, for example, the crime of
"knowingly filing a false monitoring report" under the Clean Water Act.
The law that defines what is false or misleading is part of a large
regulatory scheme that also includes a regulatorily imposed
obligation on each individual to insure the accuracy of any reports
made. As a consequence, the only showing the government must make
to the satisfaction of a jury is that the defendant has "knowingly
filed" the report, irrespective of whether or not he actually knew
it was false. And since nobody files a report without doing so
intentionally (reports do not get signed, sealed, and mailed by
accident or mistake), the only showing necessary is the trivial
showing that the defendant has actually put a letter in the mail.
As Justice Potter Stewart noted: "As a practical matter, therefore,
they are under a species of absolute liability for violation of the
regulations despite the `knowingly' requirement."
What
is particularly disturbing about the trend toward diminished intent
requirements is that it is exacerbated by a trend toward
significantly harsher penalties. Historically, when the courts
first considered regulatory laws containing reduced intent
requirements, the laws almost uniformly provided for very light
penalties such as a fine or a short jail term, not imprisonment in
a penitentiary. As commentators noted,
modest penalties are a logical complement to crimes that do not
require specific intent. Indeed, some courts
questioned whether any imprisonment at all could be imposed in the
absence of intent and culpability. This historical view has,
of course, been lost. Regulatory laws with reduced mens rea
requirements are often now felonies. And even misdemeanor
offenses can, through the stacking of sentences, result in
substantial terms of incarceration.
In
short, the history of changes in the mens rea requirements has been
substantial. The criminal law today is far different from the
criminal law of 100 years ago. For regulatory crimes there is, in
effect, a standard of near-absolute liability. One is entitled to
wonder if contemporary legislators who have enacted regulatory
statutes with increasingly onerous criminal penalties have lost
sight of a fundamental truth: "If we use prison to achieve social
goals regardless of the moral innocence of those we incarcerate,
then imprisonment loses its moral opprobrium and our criminal law
becomes morally arbitrary." Or as the drafters of the
Model Penal Code said:
It
has been argued, and the argument undoubtedly will be repeated,
that strict liability is necessary for enforcement in a number of
the areas where it obtains. But if practical enforcement precludes
litigation of the culpability of alleged deviation from legal
requirements, the enforcers cannot rightly demand the use of penal
sanctions for the purpose. Crime 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. This is too
fundamental to be compromised.
Due Process And The Public Welfare Offense
Doctrine
The
definition of the elements of a criminal offense--whether it
requires an actus reus or mens rea--is for the most part entrusted
to the legislature. This is especially true for federal offenses,
which are solely creatures of statute. And, as noted at the
outset, Congress itself has exercised precious little
self-restraint in the creation of federal criminal regulatory
offenses. The final question to consider, then, is whether there
are any external limits on this trend. Does the Constitution
restrict the extent to which the legislature may do away with
traditional act and intent requirements?
Due Process
Limits in the Courts
One limit on the expansion of malum prohibitum crimes
lies in the interpretative methodology used by the courts. The
courts can (and sometimes even do) read statutes narrowly--to
require, for example proof that a defendant knew of the law and
regulations proscribing his alleged offense, when "to interpret the
statute otherwise would be to criminalize a broad range of
apparently innocent conduct." Similarly, where a
defendant engages in apparently innocent conduct (that is, where he
is unaware of underlying predicate facts that place him on notice
as to the existence of criminal regulation), the courts sometimes
read the Due Process clause as imposing a modest limit on
criminalizing the conduct; a defendant's contention that he was
completely unaware of the underlying facts that put him on notice
as to the existence of regulations is exculpatory. Put
another way, Due Process has been construed to require that those
defendants who engage in seemingly innocent conduct must be proven
to have had knowledge of facts that put them on notice of the
potential criminalization of their conduct.
Public Welfare
Offenses
But this interpretive methodology has not yet been used
aggressively by the courts to cabin legislative power. Rather, the
courts have generally concluded that the Due Process requirements
of the Constitution do not apply in the same way and with the same
effect when the crime being addressed is a regulatory offense.
The
doctrine of "public welfare" offenses has its origins early in the
20th century. Though usually thought of
as being limited to malum prohibitum crimes, it has come to
comprise a category of criminal laws construed by the courts as
lacking, or having diminished, mens rea requirements. Thus,
under this doctrine, criminal statutes that have diminished intent
requirements (that is, those which punish conduct which is not
deliberate, as, for example, when the law criminalizes conduct that
is no more that simple negligence) are deemed not to violate the
Due Process requirements of the Constitution. But this is exactly
backwards: It is this class of intent-less crimes for which due
process analysis is most appropriate.
The
courts reason that Congress may render criminal "a type of conduct
that a reasonable person should know is subject to stringent public
regulation and may seriously threaten the community's health or
safety."
In such circumstances, the law puts the burden of knowledge of the
regulatory structure on those who act and presumes their knowledge
of the law rather than requiring proof of that fact. "In the
interest of the larger good [the law] puts the burden of acting at
hazard upon a person otherwise innocent but standing in responsible
relation to a public danger."
Consider again the Hanousek case:
Consistent with earlier decisions of the Ninth Circuit, the
government argued that the discharge of pollutants, prohibited by
the Clean Water Act, was a "public welfare offense." Because
Hanousek was, according to the government, working in a heavily
regulated business that was a threat to community safety, he was
presumed to know all of the obligations imposed upon him by the
Clean Water Act and thus precluded from challenging his conviction
on the ground that he did not know of his obligation not to act
negligently.
When
Hanousek asked the Supreme Court to review his case, the Court
declined. Justices Clarence Thomas and Sandra Day O'Connor,
however, thought that the expansive use of criminal sanctions in
what was, essentially, a simple negligence tort, merited review. As
Justice Thomas wrote, rejecting the application of the public
welfare doctrine to Hanousek's activity:
[T]o determine as a threshold matter
whether a particular statute defines a public welfare offense, a
court must have in view some category of dangerous and deleterious
devices that will be assumed to alert an individual that he stands
in "responsible relation to a public danger."
The
lower courts' broader view of the appropriate scope of criminal
law, as Justice Thomas recognized, "expose[s] countless numbers of
construction workers and contractors to heightened criminal
liability for using ordinary devices to engage in normal industrial
operations."
Thus, Justice Thomas viewed the result in
Hanousek as inconsistent with Supreme Court precedent, which
had
never held that any statute can be
described as creating a public welfare offense so long as the
statute regulates conduct that is known to be subject to extensive
regulation and that may involve a risk to the community. Indeed,
such a suggestion would extend this narrow doctrine to virtually
any criminal statute applicable to industrial activities. I presume
that in today's heavily regulated society, any person engaged in
industry is aware that his activities are the object of sweeping
regulation and that an industrial accident could threaten health or
safety.
Put
another way, given the comprehensive nature of regulation in
America society today, the growth of the public welfare doctrine
has, in effect, led to the abandonment of any intent requirement
for virtually the entire range of commercial, social, and economic
activity in the marketplace.
The
Disappearance of the Tort/Crime Distinction
One corollary to the growth of the public welfare offense
doctrine is the disappearance of the distinction between tort and
crime in American law. The use of the public
welfare doctrine to address social goals enlists the criminal law
as an agent of social regulation and change. Tort law has been,
historically, a private mechanism for compensating for injuries.
Affirmative civil enforcement by the government has been seen as a
means of enforcing compliance with social norms through
administrative procedures or civil litigation--the latter even
having a component of punishment by virtue of the proliferation of
punitive damages. These systems have been thought, in the past, to
suffice in requiring economic actors to internalize the costs of
their conduct and avoid imposing those same costs on unwitting
external actors.
Now,
however, the criminal law is being used in an avowedly instrumental
capacity. Identically phrased statutes are often applicable to the
same conduct--one authorizing a civil penalty and the other a
criminal sanction. In effect, the criminal
law, through the public welfare doctrine, has become a tool of
socialization, losing its historic character as a system for
addressing wrongful conduct. Criminal sanctions for conduct
affecting the public welfare have become a reflex answer. The
result is a substitution of criminal law for more traditional tort
and civil law: There is a "more pervasive use of the criminal
sanction, a use that intrudes further into the mainstream of
American life and into the everyday life of its citizens than has
ever been attempted before."
The Consequences of Judicial Inaction
In
effect, then, the courts have deliberately chosen a limited, almost
self-abnegating role in constraining the use of criminal sanctions.
As it stands today, no effective judicial constraint currently
limits the extent to which individual conduct that bears no 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.
As
Professor William Stuntz has noted, American criminal law "covers
far more conduct than any jurisdiction could possibly punish." This wide
span of American law is the product of institutional pressures that
draw legislators to laws with broader liability rules and harsher
sentences. The reason is the dynamic
of legislative consideration: When a legislator is faced with a
choice on how to draw a new criminal statute (either narrowly and
potentially underinclusive or broadly and potentially
overinclusive), the politics of the situation naturally cause the
legislator to be overinclusive. Few, if any, groups regularly lobby
legislators regarding criminal law and those that do more commonly
seek harsher penalties and more criminal laws, rather than less.
The political dynamic is exacerbated by the consideration
(usually implicit) of the costs associated with the criminal
justice system. Broad and overlapping statutes with minimum
obstacles to criminalization and harsh penalties are easier to
administer and reduce the costs of the legal system. They induce
guilty pleas and produce high conviction rates, minimizing the
costs of the cumbersome jury system and producing outcomes popular
with the public.90
The final piece of the equation is legislative reliance on the
existence of prosecutorial discretion. Broader and harsher statutes
may produce bad outcomes that the public dislikes, but blame for
those outcomes will lie with prosecutors who exercise their
discretion poorly, not the legislators who passed the underlying
statute. As a consequence, every incentive exists for criminal
legislation to be as expansive as possible.
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."91 Or, as the
Supreme Court said in 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.92 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.
CONCLUSION
And so, the criminal law has come to this odd and unusual point in
its development. 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
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?