Ignorance, discretion and the fairness of notice: confronting 'apparent innocence' in the criminal law.

• Author: Pilcher, Susan L.

Any law student will recite with assurance the maxim that ignorance of the law is no excuse. Typically, mistake as to the legality (or "innocence") of one's conduct provides no defense to criminal prosecution. These principles, derived from centuries of English and canon law, are "deeply rooted in the American legal system."(1) Any rule to the contrary, it is said, would undermine the socializing power of criminal law as an institution.(2) Equally fundamental to our criminal justice tradition is the notion that a culpable criminal intent, or mens rea, is generally a moral prerequisite to the imposition of punishment.(3) Criminal punishment in the absence of personal blameworthiness is counterintuitive to the average person, and American law purports to permit such results only in the face of compelling public health and safety interests.(4) Each of these ideas is commonly understood to be part of the prevailing social order, and yet the law has been unable to provide a consistently principled, understandable, articulable, and socially acceptable resolution of matters in which they are fundamentally at odds. When an actor's genuine, good-faith belief in the lawfulness of his conduct is objectively reasonable, in light of information about the immediate facts comprising his conduct and about the social norms of behavior available to him at the time of his conduct, one cannot say that the actor behaved with any morally culpable intent. Where awareness of the law's prohibition is the only element that might have alerted an otherwise law-abiding person to the illegality of his conduct--in other words, where the conduct would have been "apparently innocent" to ordinary law-abiding people in the same situation--criminal punishment of the ignorant is an arbitrary and abusive exercise of governmental power.(5)

Given the current intensity of the public call to "get tough on crime," it can come as no surprise that the substance of the criminal law is expanding dramatically with an eye toward improving the flexibility of law enforcement. The perceived inefficacy of law and law enforcement has led to expanded criminal liability, through the perennial creation of new statutory crime,(6) occasional restrictions on the scope of substantive affirmative defenses,(7) and new procedural limitations on opportunities for post-conviction relief.(8) The perceived failure of the criminal justice system to deter offenders has resulted in enhanced, more determinate punishment schemes.(9) Both types of legislative response--broadening liability and increasing the determinacy of sentencing--naturally increase the risks of overreaching and overintrusion of criminal law into private conduct.

Traditionally, we entrust the fair administration of potentially overbroad criminal laws to the "`conscience and circumspection in prosecuting officers.'" (10) In other words, any criminal law that is broad enough to encompass all wrongdoers is potentially broad enough to encompass some individuals whose conduct would fall within the letter but not the spirit of the law. We expect that the latter group will be screened out by the reasoned exercise of police and prosecutorial discretion, or, as a last resort, by the opportunity for mercy by means of jury nullification, sentencing discretion, or executive clemency. As the criminal law continues to expand beyond the realm of traditionally criminal conduct and further into the regulatory sphere, we ought to reexamine our reliance on these discretionary mechanisms as a means of securing individualized justice.

The "apparently innocent"--those whose criminal liability would be startling to the ordinary person in the accused's position--are the focus of increasing judicial concern. In several recent Supreme Court decisions,(11) the Court relied on an assessment of common expectations regarding what constitutes innocent conduct in order to support its construction of the scienter requirements of federal criminal statutes. By construing congressional silence or ambiguity on matters of scienter as likely reflecting such common expectations, and thereby presuming that Congress intended to incorporate culpable knowledge as an element of the government's proof, the Court avoided any direct conflict with the no-defense rule.

In fixing the precise degree of scienter that would provide sufficient indicia of culpability to comport with common expectations, however, the Justices frequently disagreed on how such "common expectations" would have been legislatively defined had the legislature spoken expressly on the matter. In Staples v. United States,(12) for example, the five-member majority opined that liability for knowing possession of semiautomatic weapons, absent knowledge that the guns are capable of fully automatic discharge, would not comport with common expectations.(13) Such weapons, they explain, are "so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation."(14) According to two dissenting Justices and the jury that convicted the defendant, the "`character and nature' [of a semiautomatic weapon readily convertible into a machine gun] is sufficiently hazardous to place the possessor on notice of the possibility of regulation."(15) To some Justices, then, guns are per se innocuous items, commonly understood to be unregulated; to others, however, the reverse is true: everyone knows guns are dangerous, and everyone understands that they might therefore be subject to regulation. "Apparent innocence," it seems, is a heavily contextual judgment, dependent on socially accepted norms within the beholder's relevant community.

This Article contends that the reach of the criminal law is, and ought to be, only as broad as prevailing public expectations suppose it to be. Modern criminal law, as a creature of statute, acquires fixed meaning. The words of a criminal statute represent the rule of law. In interpreting statutory terms, courts seek to ascertain the legislature's intent at the time the statute was enacted. Through the process of repeated judicial construction, the rule of law achieves greater certainty and definiteness. Related social norms and sources of public disapproval, however, are inherently fluid. Some legislatively prescribed norms of behavior will be internalized by the community and thereafter will be readily accepted; other norms may be accepted initially but later discarded in light of shifting social values. Because of the strong traditional association of criminal liability with blameworthiness, some applications of new laws (reflecting norms of behavior not yet internalized by the community) or old laws (reflecting norms no longer so internalized) may be both surprising and objectionable if the determinate rule of law does not operate consistently with public expectations.

We live in an era of rapidly expanding criminal liability, in which conduct never before within the reach of the criminal justice system is regulated. Substantive expansions of liability vastly increase the potential for dissonance between law and community expectations. And yet ignorance of the law is not readily accepted as an excuse. Traditionally, we have relied on both the political process (if you don't like the law, change it) and the existing mechanisms for discretionary application of the law (prosecutorial and sentencing discretion, jury nullification, executive clemency) to ensure that enforcement is consistent with common notions of justice. This Article suggests that, in light of this increasing tension, none of these mechanisms provides adequate assurance. I argue that the jury is the only institution that is truly competent to bring contemporary community expectations to bear on questions of criminal liability for "apparently innocent" conduct. Therefore, juries should be invited in such cases to assess whether, given the local context in which the alleged offense occurred, any basis exists to assign blame to a defendant for his acts. Granting the jury direct authority to evaluate issues of fair notice and apparent innocence will preserve the social power and flexibility of the criminal sanction by acknowledging the highly contextual nature of its legitimate use. Furthermore, lawmakers and enforcement authorities will have an increased incentive to recognize the crucial role they must play in ensuring social internalization of the law's expectations.

To that end, Part I provides a brief overview of federal mens rea jurisprudence, tracing the evolution of the uneasy balance between personal culpability and legislative prerogative. In the interests of constructive generalization, discussion is confined primarily to federal criminal law. Part 11 then explores the relationship between public expectations and the legitimacy of criminal law enforcement, focusing on the problems posed by legislative overcriminalization and the expansion of discretionary prosecutorial authority. Finally, Part Ill suggests various means of harmonizing expectations with reality. First, I suggest that prosecutors should take more responsibility for ensuring that the criminal law retains its unique moral authority by making enforcement decisions consistent with public expectations. Second, I contend that the jury must be empowered to play a more direct role in defining the legitimate scope of any given criminal law at any given point in time. As a means of providing a "check" on the vast discretionary authority of individual prosecutors, and yet simultaneously preserving the flexibility of the rule of law, I propose that defendants in a narrow class of cases be invited to raise a defense of "apparent innocence." In those cases, the jury would be invited to evaluate the substantive fairness of assigning a community's judgment of blameworthiness on one in the defendant's situation as the jury perceives it to be. Both of these arguments rest on two basic...