April 17, 2003
By Paul Rosenzweig
Edward Hanousek1 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."
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.
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.
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.2
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
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.3 The American Bar Association
reported in 1998 that there were in excess of 3,300 separate
criminal offenses.4 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.5 And these laws are scattered
in over 50 titles of the United States Code, encompassing roughly
27,000 pages.6 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."7 The appetite for more
federal criminal laws is driven principally by political
consideration,8 and not by any consideration
of whether particular laws are intrinsically federal in nature.9 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
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.10 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
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
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.
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.13 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.
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.
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.
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."15
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.
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."16
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.17 But ultimately, the common
law has required that some act bearing a causal link to the crime
or the attempted crime occur.
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.18 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
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.20 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.21 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.22
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.23 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
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.24
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
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.26 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.27 But criminal responsibility
only arises where the defendant is in fact capable of performing
the act he is called upon to perform,28 and where the legal duty to
act exists.29 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.30
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
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.32
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.33 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
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."35 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"36 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."37 As a consequence, guilt was
"imputed to [Dotterweich] solely on the basis of his authority and
responsibility as president and general manager of the
prosecution of managers based upon theories of managerial liability
has increased since Dotterweich. In one case,39 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."40 In short,
Park was convicted "by virtue of [his] managerial position [and]
relation to the actor" who actually committed the offense.41 According
to the Court, managers in Park's position have
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.42
other words, as has now become commonplace,43 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.44
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"
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."46 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
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.48 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.
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.
requirement that a crime involve culpable purposeful intent has a
solid historical grounding. As Justice Robert Jackson wrote:
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."49
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.50
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.51 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
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
"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."54 Under this
standard, for example, chiropractic doctors who have recommended
fasting as a treatment for tuberculosis have been convicted of
culpably negligent manslaughter.55 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.
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"56--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
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.58
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
early example is Regina v. Stephens,60 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.61 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."62 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.63
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
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"65 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."66
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.67 As commentators noted,
modest penalties are a logical complement to crimes that do not
require specific intent.68 Indeed, some courts
questioned whether any imprisonment at all could be imposed in the
absence of intent and culpability.69 This historical view has,
of course, been lost. Regulatory laws with reduced mens rea
requirements are often now felonies.70 And even misdemeanor
offenses can, through the stacking of sentences, result in
substantial terms of incarceration.71
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."72 Or as the drafters of the
Model Penal Code said:
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.73
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.74 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?
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."75 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.76 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.77
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.
doctrine of "public welfare" offenses has its origins early in the
20th century.78 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.79 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.
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
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."81
Consider again the Hanousek case:
Consistent with earlier decisions of the Ninth Circuit,82 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
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."83
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
Thus, Justice Thomas viewed the result in
Hanousek as inconsistent with Supreme Court precedent, which
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
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.
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.85 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
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.86 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."87
1. The facts of this case
are taken from United States v. Hanousek, 176 F.3d 1116 (9th Cir.
1999), cert. denied, 528 U.S. 1102 (2000).
2. Some commentators have
suggested that Hanousek's case is not an egregious one--that the
heart of the case was the post-spill charges of concealment, which
explain why the government viewed his conduct as criminal. See
Steve Solow & Ronald Sarachan, "Criminal Negligence
Prosecutions Under the Federal Clean Water Act: A Statistical
Analysis and an Evaluation of the Impact of Hanousek and Hong," 32
Env. L. Reptr. 11153, 11159 (Oct. 2002). The authors buttress their
argument with a statistical analysis suggesting that negligence
convictions under the Clean Water Act either accompany more serious
felony convictions, id. at 11157, or are the product of negotiated
dispositions by plea, id. at 11158. This contention is no doubt an
accurate description, but it begs the normative question. Perhaps
Hanousek's conviction was a compromise verdict--but should the
compromise position have been available in the first instance?
3. Paul Rosenzweig, "Civil
Sanctions and the Labor-Management Reporting and Disclosure Act,"
United States House of Representatives, Committee on Education and
the Workforce, Subcommittee on Employer-Employee Relations, June
27, 2002 (at
4. American Bar
Association , "The Federalization of Criminal Law" (Washington, DC;
ABA, 1998), Appendix C; see also Ronald L. Gainer, "Federal
Criminal Code Reform: Past and Future," 2 Buff. Crim. L. Rev. 46,
5. Federalization of
Criminal Law at 9 & 11 (Chart 2).
6. Gainer, Federal
Criminal Code, at 53.
7. Federalization of
Criminal Law at 10.
8. James D. Calder, The
Origin and Development of Federal Crime Control Policy, (1983), pp.
20-24, 198-203 (describing events leading to enactment of criminal
laws in the 1920s and early 1930s); Kathleen F. Brickey, "The
Commerce Clause and Federalized Crime: A Tale of Two Thieves," 543
Annals Am. Acad. Pol. & Soc. Sci. 27, 30 (1996) (recounting
events leading to passage of federal carjacking legislation).
9. Franklin E. Zimiring
& Gordon Hawkins, "Toward a Principled Basis for Federal
Criminal Legislation," 543 Annals Am. Acad. Pol. & Soc. Sci.
15, 20-21 (1996).
10. Administrative Office
of United States Courts, "Federal Judicial Caseload Statistics,"
Table D-2, at
April 3, 2003).
12. Id. All categories
pale, however, in comparison to the principal area of federal
effort--the prosecution of drug offenses, which resulted in more
than 32,000 individuals being charged in 2002. Id.
13. See Paul Rosenzweig,
"Sentencing of Corporate Fraud and White Collar Crimes," United
States Sentencing Commission (March 25, 2003) (available at
(accessed April 15, 2003).
14. A modified version of
this discussion of the actus reus doctrine will appear in
Rosenzweig, "Punishing Responsible Corporate Officers," Federal
Sentencing Reporter (forthcoming). That article discusses the need
for the Federal Sentencing Guidelines to be revised to incorporate
an understanding of managerial liability for failures to
15. United States v.
Dotterweich, 320 U.S. 277, 286 (1943) (Murphy, J., dissenting).
16. 4 Blackstone,
Commentaries on the Laws of England, 78-79 (1769) (emphasis in
original); see also e.g. State v. Rider, 90 Mo. 54, 1 S.W. 825
(1886) ("The mere intent to commit a crime is not a crime. An
attempt to perpetrate it is necessary to constitute guilt in
17. E.g. Rex. v. Scofield,
Cald 397 (1784); Rex v. Higgins, 2 East 5 (1801). For a more
contemporary statement of this truism see Gray v. State, 43 Md.
App. 238, 403 A.2d 853 (1979).
18. E.g. Gebardi v. United
States, 287 U.S. 112 (1932) (acquiescence of woman traveling
interstate insufficient to sustain Mann Act conviction); State v.
Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987) (mere presence at
criminal act insufficient to sustain conviction).
19. See American Law
Institute, Model Penal Code § 2.01 (1985). Thus involuntary
acts (e.g. reflex, convulsion, movement while asleep or under
hypnosis) are not considered an adequate basis for criminal
liability. Id. § 2.01(2).
20. E.g. 18 U.S.C. §
21. E.g. 18 U.S.C. §
2(b); Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).
22. E.g. State v. Hanks, 39
Conn. App. 333, 665 A.2d 102 (1995). The necessity of at least one
act in furtherance of the conspiracy serves to differentiate the
criminal conspiracy from mere thought. E.g. People v. Swain, 12
Cal.4th 593, 909 P.2d 994 (1996). Once an individual joins a
conspiracy, he is criminally liable for all the reasonably
foreseeable consequences of acts done in furtherance of the
conspiracy. E.g. Pinkerton v. United States, 328 U.S. 640
23. 2 Ld. Raym. 1574, 92
Eng. Rep. 518 (1730).
25. Joseph Beale, "The
Proximate Consequences of An Act," 33 Harv. L. Rev. 633, 637
26. E.g Commonwealth v.
Hall, 322 Mass. 523, 78 N.E.2d 644 (1948) (mother left child in
attic); State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975) (failure
to summon medical treatment). In most instances this common law
duty has now been codified in statute.
27. United States v.
Schaick, 134 F. 592 (2d Cir. 1904).
28. Compare Commonwealth v.
Teixera, 396 Mass. 746, 488 N.E.2d 775 (1986) (no liability for
failure to support absent financial ability to pay) with Rex v.
Russell,  Vict.L.R. 59 (Victoria 1932) (parent liable for
failing to prevent drowning of children by wife).
29. See Jones v. United
States, 308 F.2d 308 (1962) (no criminal liability without finding
of a legal duty of care); cf. Barber v. Superior Court, 147
Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983) (no criminal liability
for doctor to remove life support at request of wife and
30. People v. Robbins, 83
A.D.2d 271, 443 N.Y.S.2d 1016 (1981); see also Commonwealth v.
Konz, 450 A.2d 638 (Pa. 1982) (husband forgoes insulin, wife has no
31. See Model Penal Code
§ 2.01(3) (1962) ("Liability for the commission of an offense
may not be based on an omission unaccompanied by action unless: (a)
the omission is expressly made sufficient by the law defining the
offense; or (b) a duty to perform the omitted act is otherwise
imposed by law.").
32. See e.g. Commonwealth
v. Putch, 18 Pa. D&C 680 (Cty. Ct. 1932) (owner liable for acts
of "his driver"); Moreland v. State, 164 Ga. 467, 139 S.E. 77
(1927) (owner liable for act of chauffer).
33. 320 U.S. 277
34. Id. at 285-86 (Murphy,
35. Id. at 284.
36. Id. at 280. This
phrase, among the most famous in the Supreme Court's corporate
criminal law oeuvre, lies at the heart of the conception of a
"public welfare offense"--a subject addressed infra pp. 15-17.
37. Id. at 284-85. The
inference that Congress thought this necessary rests on a false
assumption--that in the absence of Congressional criminalization no
regime exists for deterring the introduction of adulterated
products into the stream of commerce. This ignores the availability
of tort liability and other civil liability regimes. Indeed, the
availability of alternate methods of calibrated deterrence calls
into question the entire justification for managerial liability.
See infra pp. 16-17 (discussing the decline of legal distinctions
between torts and crimes).
38. Id. at 286 (Murphy, J.,
39. United States v. Park,
421 U.S. 658 (1975).
40. Id. at 666, n. 10. The
"responsible relation" doctrine is remarkably without limit. Even
at its inception the Court said it could not define or "even
indicate by way of illustration" the class of employees who stood
in responsible relation to a crime. Rather, it left such definition
to "the good sense of prosecutors, the wise guidance of trial
judges, and the ultimate judgment of juries." Dotterweich, 320 U.S.
41. Id. at 670.
42. Id. at 672. This
demonstrates the absence of coherent limits to the pure deterrence
rationale for altering social conduct. The arguments advanced are
equally supportive of a severe sentences (e.g. life imprisonment),
which no society, in good conscience, would impose for these
43. Responsible corporate
officer cases are numerous. For a sampling see e.g., United States v. Hong , 242 F.3d 528
(4th Cir. 2001); United States v.
Iverson , 162 F.3d 1015 (9th Cir. 1998); United States v. Hansen , 262 F.3d
1217 (11th Cir. 2001); United States v.
MacDonald & Watson Waste Oil Co. , 933 F.2d 35 (1st Cir.
1991); United States v. White ,
766 F.Supp. 873 (E.D. Wash. 1991). In addition to the environmental
and FDA cases noted in the text, the responsible corporate office
doctrine has also been applied in tax cases. See Purcell v. United States , 1 F.3d 932
(9th Cir. 1993). No barrier to its application in other regulatory
contexts (e.g., OSHA, SEC, or Foreign Corrupt Practices Act) is
apparent. For one of the earlier, and most troubling, applications
of concepts of vicarious liability, one that Justice Murphy called
"unworthy of the traditions of our people" and an "abandonment of
our devotion to justice," see In re
Yamashita , 327 U.S. 1, 28, 29 (1946) (Murphy, J. dissenting)
(convicting Japanese General of war crimes for acts of units under
his command even though he lacked the capacity to command his
troops because all communications had been destroyed during the
U.S. invasion of the Philippines). The prevalence of such charges
today contrasts with the rarity of criminal charges against
corporate officers at the turn of the century. E.g. United States v. Wise , 370 U.S.
405, 407 n.1 (1962) (from 1890 to 1914, fewer than two corporate
officers were indicted each year for violations of the Sherman
Antitrust Act). The modern use of such charges has, in some
instances, been statutorily sanctioned. See e.g. 33 U.S.C. § 1319(c)(6)
(defining a "person" to include "any responsible corporate
44. See United States v.
Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J.,
dissenting from denial of rehearing en banc) ("If we are fortunate,
sewer plant workers . . . will continue to perform their vitally
important work despite our decision. If they knew they risk three
years in prison, some might decide that their pay . . . is not
enough to risk prison for doing their jobs.").
45. Hansousek, 176 F.3d
1124. Like the "responsible relation" doctrine, the requirement of
"but for" causation is one that has almost no limit. Virtually any
act that bears any relationship, however small, to an event is
capable of being characterized as a "but for" cause of that
46. Dotterweich, 320 U.S.
at 286 (Murphy, J. dissenting).
47. Morissette v. United
States, 342 U.S. 246, 252 (1952). Despite the difficulties courts
have in defining what intent is, there is a substantial common
sense component to the inquiry. After all, as Justice Oliver
Wendell Holmes said: "even a dog distinguishes between being
stumbled over and being kicked." See Holmes, The Common Law
48. American Law Institute,
Model Penal Code, §2.02 (1962).
49. Morisette, 342 U.S. at
50. See Dobbs Case, 2 East
P.C. 513 (1770); see also Thacker v. Commonwealth, 134 Va. 767, 114
S.E. 504 (1922) (defendant shot at a light and struck and killed a
victim; not guilty of murder); State v. Peery, 224 Minn. 346, 28
N.W.2d. 851 (1947) (requiring proof of "intent to be lewd" in
indecent exposure prosecution of defendant who was accidentally
viewed through ground floor window by passers-by).
51. E.g. State v.
Wickstrom, 405 N.W.2d 1 (Ct. App. Minn. 1987) (defendant hit victim
causing abortion of pregnancy; guilty of criminal abortion despite
lacking intent to injure fetus).
52. People v. Garland, 254
Ill.App.3d 827, 627 N.E#.2d 377, 380-81 (1993) ("Specific intent
exists where from the circumstances the offender must have
subjectively desired the prohibited result. General intent exists
when the prohibited result may reasonably be expected to follow
from the offender's voluntary act even without any specific intent
by the offender.").
53. E.g. United States v.
United States Gypsum Co., 438 U.S. 422, 445-46 (1978). Notably, in
this example, a corporate executive will at least know that his
company's market share is increasing, alerting him to circumstances
that might warrant inquiry. In complex health, safety and
environmental regulatory regimes there is often nothing extrinsic
that will alert the average business person to the proscribed
nature of this conduct.
54. Walker v. Superior
Court, 47 Cal.3d 112, 115, 253 Cal.Rptr 1, 15-16, 763 P.2d 852, 866
(1988); see also State v. Gorman, 648 A.2d 967 (Me. 1994) (criminal
negligence is gross deviation from standard of reasonable prudent
55. See Gian-Cursio v.
State, 180 So.2d 396 (Fla. Ct. App. 1965).
56. See American Law
Institute, Model Penal Code § 2.02(2)(d) (1985).
57. Hanousek, 176 F.3d at
58. The seminal case most
frequently cited for the proposition is Shevlin-Carpenter Co. v.
State of Minnesota, 218 U.S. 57 (1910) (State may "eliminate the
question of intent" without violating the Due Process clause of the
59. Hopkins, Mens Rea and
the Right to Trial by Jury, 76 Calif. L. Rev. 391, 397 (1988).
60. 1 Q.B. 702 (1866).
61. Lafave & Scott,
Criminal Law § 3.8, at 242 n.1 (2d ed. 1986).
62. United States v. FMC
Corporation, 572 F.2d 902, 904 (2d Cir. 1978).
63. E.g. United States v.
Freed, 401 U.S. 601 (possession of unregistered hand grenades);
Dotterweich, 320 U.S. at 278 (sales under Food and Drug laws);
United States v. Balint, 258 U.S. 250 (1922) (sale of
64. E.g. United States v.
International Minerals & Chemical Corp., 402 U.S. 558, 565
(1971) ("[W]here . . . dangerous or deleterious 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.").
65. See 33 U.S.C. §
1319(c)(4) (making it a crime to knowingly make a false statement
in any certification required by the regulations promulgated by
Environmental Protection Agency). Those regulations, in turn,
require the compliance with permit requirements, which typically
require the filing of a "discharge monitoring report." See 40
C.F.R. § 122.41(l)(4). As this brief exegesis demonstrates,
even discerning that the law criminalizes the filing of a false
report is, itself a problematic endeavor.
66. United States v.
International Minerals & Chemical Corp., 402 U.S. 558, 569
(1971) (Stewart, J., dissenting).
67. See Staples v. United
States, 511 U.S. 600, 616 (1994) (citing e.g. Commonwealth v.
Raymond, 97 Mass. 567 (1867) (fine up to $200 or 6 months in jail);
Commonwealth v. Farren, 91 Mass. 489 (1864) (fine only); People v.
Snowburger, 113 Mich 86, 71 N.W. 497 (1897) (fine up to $500 or
incarceration in county jail).
68. See Francis B. Sayre,
"Public Welfare Offenses," 33 Colum. L. Rev. 55, 70 (1933); see
also Morissette v. United States, 342 U.S. 256, 256 (1952)
("penalties commonly are relatively small, and conviction does no
grave damage to an offender's reputation").
69. E.g. People ex rel.
Price v. Sheffield Farms-Slawson-Decker, Co., 225 N.Y. 25, 32-33,
121 NE 474, 477 (1918) (Cardozo, J.); id. at 35, 121 N.E. at 478
(Crane, J., concurring) (imprisonment for crime that requires no
mens rea stretches law of regulatory offenses beyond its
70. E.g. United States v.
Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994) (felony violation of
Clean Water Act-- no knowledge of regulations necessary).
71. E.g. United States v.
Ming Hong, 242 F.3d 528 (4th Cir. 2001) (misdemeanor convictions
stacked for 3 year sentence).
72. United States v.
Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J.,
dissenting from denial of rehearing en banc)
73. American Law Institute,
Model Penal Code § 2.05 and Comments at 282-83 (1985).
74. United States v.
Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812). It is, perhaps, a matter
of more than historical interest that the Constitution specifically
identified only three federal criminal offenses: treason, piracy,
and forgery. The contemporary extent of federal criminal law would
look quite odd to the Founders--a topic to be addressed in a future
75. Liparota v. United
States, 471 U.S. 419 (1985).
76. E.g. United States v.
International Minerals & Chemical Corp., 402 U.S. 558, 563-64
(1971) ("A person thinking in good faith that he was shipping
distilled water when in fact he was shipping some dangerous acid
would not be covered"); United States v. Ahmad, 101 F.3d 386 (5th
Cir. 1996) (defendant entitled to mistake of fact instruction).
77. E.g. United States v.
X-Citement Video, 513 U.S. 64, 72 (1994) (Due Process requires that
scienter standard apply to "each of the statutory elements which
criminalize otherwise innocent conduct"); cf. Ratzlaff v. United
States, 510 U.S. 135 (1994) (to prove violation of anti-structuring
law, government must prove knowledge of the law, because deposit of
funds in a bank is not inherently wrongful conduct putting one on
notice of prohibitory criminal statutes); Staples v. United States,
511 U.S. 600 (1994) (mere possession of a gun insufficient to put
defendant on notice as to existence of gun law prohibitions).
78. See Francis B. Sayre,
"Public Welfare Offenses," 33 Colum. L. Rev. 55 (1933).
79. Herbert Packer, "Mens
Rea and the Supreme Court," 1962 S.Ct. Rev. 104.
80. See Liparota v. United
States, 471 U.S. 419, 433 (1985).
81. United States v.
Dotterweich, 320 U.S. 277, 281 (1943).
82. United States v.
Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993); but see United States v.
Ahmad, 101 F.3d 386 (5th Cir. 1996).
83. United States v.
Hanousek, 528 U.S. 1102 (2000) (Thomas, J., dissenting from denial
of certiorari) (quoting Staples v. United States, 511 U.S. 600, 613
85. John C. Coffee, Jr.
"Does 'Unlawful' Mean 'Criminal'?: Reflections on the Disappearing
Tort/Crime Distinction in American Law," 71 B.U.L. Rev. 193
86. See, e.g., United
States v. Ward, 448 U.S. 242, 249-51 (1980) (permitting imposition
of civil penalty even though language of statute was virtually
identical to longstanding criminal statute). Ward has been
interpreted to mean that the legislature is free to choose to
characterize misconduct as civil or criminal, thereby giving
enforcement officials the option of choosing which sanction to
impose. Examples of regulatory structures that allow the
discretionary imposition of administrative, civil, and criminal
sanctions for virtually identical conduct abound. Compare e.g., 33
U.S.C. § 1319(g) (authorizing administrative penalties for
violations of Clean Water Act); id. §§ 1319(b), (d)
(civil penalties); id. § 1319(c) (criminal penalties).
87. Coffee, "Tort/Crime
Distinction," at 220.
88. William J. Stuntz, "The
Pathological Politics of Criminal Law," 100 Mich. L. Rev. 505, 507
89. Id. at 510.
90. Id. at 600.
91. Nash v. United States, 229 U.S. 373, 378
92. Dotterweich, 320 U.S. at 285.
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
Professor William Stuntz has noted, American criminal law "covers
far more conduct than any jurisdiction could possibly punish."88 This wide
span of American law is the product of institutional pressures that
draw legislators to laws with broader liability rules and harsher
sentences.89 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
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.
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
The law has now gone far from that model of liability for an actand, in effect, begun to impose criminal liability for the acts ofanother based upon failures of supervision that are far differentfrom the common law's historical understanding.
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