Proportional mens rea.

AuthorSmith, Stephen F.


Over the last generation, the Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The "guilty mind" requirement now aspires to exempt all "innocent" (1) (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is "inevitably nefarious." (2) When a literal interpretation of a federal criminal statute could encompass "innocent" behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.

Although the scholarly community has been quick to embrace the goal of innocence-protection, (3) this Essay argues that federal mens rea doctrine rests on an unduly narrow conception of "innocence." To conceive of innocence-protection as merely preventing conviction for morally blameless conduct, as current doctrine does, is to miss an important dimension of moral culpability--namely, proportionality, or the idea that the punishment must be tailored to the offender's level of blameworthiness. The objection to punishing blameless acts is that the actor is not morally deserving of the blame that it is uniquely the province of the criminal law to impart. The same misalignment of blame and punishment occurs when blameworthy acts receive disproportionately severe punishment.

Consequently, if the goal really is to protect "innocence" by ruling out morally undeserved punishment, mens rea doctrine must do more than guarantee a modicum of moral blameworthiness as a precondition to punishment. It must also ensure that the acts which lead to criminal liability will be sufficiently blameworthy to deserve the sanctions imposed by the substantive offense. Only then will "innocence" truly be protected against criminal liability, and the traditional role of mens rea fulfilled.

This Essay proceeds as follows. Part I outlines the Supreme Court's current approach to mens rea, which equates "innocence" with "moral blamelessness." Part II criticizes that narrow conception of "innocence." Mens rea has traditionally ' served to prevent disproportional punishment as well as punishment of blameless conduct, and the outcomes in recent mens rea cases are indefensible without reference to the very proportionality considerations the cases treat as irrelevant.

Part III makes the case for "proportional mens rea," a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and, as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment "fits" the crime. Moreover, proportional mens tea would represent a needed counterweight to prosecutorial behavior whereas current doctrine does not. Given that federal prosecutors do not seek to charge morally blameless people, mens rea doctrine aimed only at protecting moral blamelessness from punishment will largely be redundant of prosecutorial discretion. Proportionality of punishment, however, is a concern that federal prosecutors--bound by longstanding Executive Branch mandates to seek the maximum supportable penalty in every case and oppose lenient exercises of judicial sentencing discretion--routinely ignore. Judicial mens rea selection, therefore, has a substantial contribution to make to the achievement of proportionality of punishment.


    Moral innocence was not always an important factor in federal mens rea selection. For several generations, the Supreme Court treated the historic requirement of a "guilty mind" (or a morally culpable mental state) as the exception, rather than the rule, in federal criminal law. (4) In Morissette v. United States, (5) the Court held that a culpable mental state is required for the small category of crimes derived from the common law but ominously stated that "quite contrary inferences" may be warranted as to "offense[s] new to general law, for whose definition the courts have no guidance except the Act." (6) The clear implication, seized upon in later cases, (7) was that a culpable mental state may not be required for regulatory or other crimes unknown to the common law.

    In Liparota v. United States (8) and subsequent cases, (9) the Supreme Court employed an entirely different approach to mens rea. Under this approach, the goal of the mens rea requirement is to protect "innocent" conduct from punishment. This goal is accomplished by requiring a culpable mental state for all crimes, regardless of their origin or status.

    Staples v. United States (10) exemplifies the new approach to mens rea. The case involved a prosecution for possession of an unregistered machinegun, a crime previously classified as a public welfare offense. Citing public-safety concerns, the prosecution argued that conviction should be allowed as long as the defendant knew the item he possessed was a gun of some kind. The Court disagreed, noting that such a minimal mens rea requirement would allow prosecutors to convict the "innocent" act of possessing guns that "traditionally have been widely accepted as lawful possessions." (11)

    To exempt "innocent" instances of gun possession from the statute, Staples demanded proof of a culpable mental state. To convict, the government must prove that the defendant knew the "quasi-suspect character" of his "firearm" (in Staples's case, its automatic-firing capability) that placed it outside of the category of guns that can be lawfully possessed free of government regulation. (12) Thus, far from being limited to common law crimes, the "guilty mind" requirement now applied more broadly to regulatory crimes as well. (13)

    The innocence-protection the Court desires is achieved by strategically adjusting the mens rea in light of the nature of the prohibited act. Where the nature of the prohibited act, as defined by Congress, is sufficient to guarantee that anyone convicted of the crime will be morally blameworthy, courts treat the legislative definition of the crime as conclusive and do not impose heightened mens rea requirements. (14) If, however, the prohibited act is not "inevitably nefarious" (15) and thus could potentially reach innocent conduct, courts adopt more stringent mens rea requirements designed to exclude all innocent conduct from the crime's reach. (16)

    Typically, as exemplified by Staples, innocence protection is achieved by requiring knowledge of all the facts that make the defendant's conduct wrongful. Although the Court perceived a threat to innocence protection in Staples, it did not require proof that the defendant knew the legal definition of "firearm," much less that it is illegal to possess unregistered "firearms." Instead, the Court required the government to prove that the defendant knew the pertinent facts--namely, the characteristics that brought his weapon within the statutory definition of "firearm." (17)

    In many cases, full knowledge of the facts that make the defendant's conduct illegal will prevent conviction for morally blameless conduct. Sometimes, however, knowledge of the facts that constitute the offense will fall to exclude all "innocent" conduct from the reach of a criminal statute. These are situations of incompletely defined crimes--situations where the crime, as legislatively defined, fails to describe acts that citizens would expect to be considered wrongful. In these situations, the mental culpability (and innocence protection) the Court demands can only come from proof that the defendant knew his conduct was illegal.

    The Court's commitment to innocence protection is most dramatically shown in its cases making ignorance of the law a defense to particular crimes. The most recent installment in this line of cases is Arthur Andersen LLP v. United States. (18) Arthur Andersen was charged with "corruptly persuading" its employees to destroy Enron-related documents with intent to cause those documents to be withheld from federal investigators. (19) Noting the prevalence and legitimacy of document-retention policies in the business world and the fact that lawyers often advise clients to withhold documents from investigators on privilege grounds, the Court concluded that persuading others to withhold documents from a federal investigation is "by itself innocuous" and "not inherently malign." (20) To ensure that innocent "persuasion" cannot result in punishment, the Court required proof that the "persuader" acted With "consciousness of wrongdoing." (21)

    As this brief survey of current mens rea doctrine suggests, the recent mens rea cases have given rise to a dramatically different approach to mens rea in the federal system. The Supreme Court has insisted that federal crimes be defined in terms that guarantee a path to acquittal in substantive criminal law for morally blameless conduct and has increasingly looked to the mental element of crimes to provide this protection against punishment for "innocent" conduct. Thus, innocence-protection has emerged both as the overarching goal of the mental element of federal crimes and as the driving force behind federal mens rea selection.


    The Supreme Court, to date, has only grappled with one part of the innocence-protection problem: avoiding punishment for innocent acts. Proportionality concerns have no place in the mens tea analysis outlined by the Court. An act is either "inevitably nefarious" (22) or not; if it is, then the act is not "innocent" and heightened implied mens tea requirements are categorically ruled out. As...

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