Punishment without culpability.

• Author: Stinneford, John F.
• Position: Introduction through III. Punishment and the Criminal-Civil Distinction, p. 653-683 - Symposium on Overcriminalization

1. INTRODUCTION (1)

   You are a UPS delivery truck driver in Tampa, Florida. Your job involves picking up packages at a central warehouse, loading them onto your truck, and delivering them to various offices and homes on your delivery route. Every Friday, you deliver a package weighing a couple of pounds to a particular residence on your route. The residence is located in a "bad" neighborhood where there is a lot of crime, particularly drug crime. The person who signs for the package every week is a tough-looking character, and there are usually several other tough-looking characters in the background. While on your way to make the delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. (2) To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. (3) You do have the right to raise lack of knowledge as an affirmative defense--but the burden rests on you. (4)

   A reader of this hypothetical scenario--at least a reader who has a passing familiarity with criminal law--is likely to think that this statute violates the Constitution in three ways. First, it permits the state to impose criminal punishment on someone who acts reasonably, in good faith, and with no knowledge of the facts that make his conduct wrongful, a result that seems to violate the Due Process Clause's requirement of fundamental fairness. (5) Second, it requires the defendant to disprove a key element of the offense, (6) thus inverting the requirement that the state must prove all elements beyond a reasonable doubt--again in violation of the Due Process Clause. (7) Third, it authorizes a very harsh punishment--up to fifteen years in prison--for a crime that can be committed with complete moral innocence, thus violating the proportionality requirements of the Cruel and Unusual Punishments Clause. (8)

   In reality, the answer is not as clear as it seems. (9) The Supreme Court has said that criminal statutes that authorize punishment without culpability, shift the burden of proof to the defendant, or authorize disproportionate punishments might violate the Constitution. (10) But the Court has also upheld criminal statutes that do precisely these things. (11) To the extent there is any pattern to the Court's treatment of these matters, it has been a pattern of advance and retreat: the Court announces a constitutional rule to protect criminal defendants, but then pulls back when faced with the implications of the rule it has announced. Scholars have observed (and complained about) this fact for more than half a century, (12) but like the Court itself they have been unable to diagnose the source of the problem or propose an effective solution.

   This Article will argue that the Supreme Court's inability to resolve questions of constitutional criminal law is the result of the instrumentalist revolution, a movement in legal thought that sought to delegitimize morality and tradition as sources of legal standards and replace them with values of power and efficiency.

   Prior to the instrumentalist revolution, American legal thought was animated by two core common law ideas: first, that there are real moral limits to what the government can do, and second, that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice or tradition. (13) In other words, tradition was a guide to the application of moral principles in practice. It helped show which moral principles were relevant to a given case, how they were to be balanced against competing principles, and how they were to be applied to a given set of facts. This common law synthesis of morality and tradition was built into the various parts of the United States Constitution that related to crime, most explicitly the Cruel and Unusual Punishments Clause. (14)

   Instrumentalism rejected the common law synthesis of morality and tradition. (15) It denied that the law contains any predetermined constraints on the ends the legislature may pursue or the means through which it may choose to achieve them. With respect to the criminal law, this meant that punishment could be used purely as a form of regulation and that traditional culpability-based constraints on criminal punishment should no longer apply.

   The instrumentalist claim that "crime" is whatever the legislature says it is conflicts with the United States Constitution. The Constitution imposes a wide variety of limits on government power that only apply in criminal cases, including rights to indictment and trial by jury, prohibitions of ex post facto laws and double jeopardy, and protection against cruel and unusual punishments. These limits presuppose a substantive constitutional definition of crime; otherwise they would be meaningless. A legislature could always evade them simply by reclassifying a criminal statute as civil.

   The Supreme Court became aware of this problem by the middle of the twentieth century. Since that time, it has made repeated efforts to draw a constitutional line between criminal and civil causes of action, (16) to impose culpability-based limits on the legislature's power to define crimes, (17) and to require proportionality in punishment. (18) These efforts failed, however, primarily because of the continuing impact of instrumentalism. Although instrumentalism did not succeed in eliminating either morality or tradition from the legal system, it did largely succeed in breaking the connection between the two.

   As the Supreme Court sought to rebuild the constitutional law of crime in the wake of the instrumentalist revolution, it returned to common law ideas about morality and tradition--but it now kept the two largely separate from each other. In cases involving the criminal-civil distinction, the Court used tradition in isolation from morality, looking at the outcomes in prior cases but failing to examine why those outcomes were reached. The emptiness of this approach has led the Court to accept the civil or criminal label the legislature put on the statute in virtually every case. (19) In cases involving legislative redefinition of crime, on the other hand, the Court tried to apply moral principle unmediated by tradition. This effort threatened to sweep aside vast areas of traditional criminal law doctrine, and the Court retreated as soon as the implications of its effort became clear. (20) Finally, the Court's efforts at requiring proportionality in punishment have been defined by a struggle between originalists who rely upon an artificially narrow view of tradition and nonoriginalists who employ a subjective and unconstrained vision of morality. (21) As a result, the Court's proportionality jurisprudence has largely been a dead letter outside the death penalty context. (22)

   In the wake of this failure, the Supreme Court has recently started to recreate the common law synthesis of morality and tradition, albeit in a radically incomplete fashion. The Supreme Court's recent cases involving the criminal-civil distinction have increasingly recognized that the key difference between criminal and civil laws is that criminal laws employ sanctions as an expression of blame. (23) The Court's cases involving legislative redefinition of crime have increasingly drawn upon tradition to shed light on the scope and limitations of the moral culpability requirement. (24) The Court's proportionality cases, on the other hand, remain largely unprincipled. (25)

   Although the Supreme Court appears to have restarted a process of common law adjudication that could lead to the recovery of a coherent constitutional doctrine of substantive criminal law, many of its decisions are predicated on statutory construction or on constitutional doctrines only loosely related to culpability. In several areas, the Court still maintains an almost impenetrable wall of deference to the legislature that prevents the development of any doctrine that might provide meaningful protection to criminal defendants. In short, until the Court returns fully to the common law synthesis of morality and tradition, embodied most specifically in the Cruel and Unusual Punishments Clause, the constitutional law of crime will remain radically incomplete.

   Part II of this Article will describe the rise of instrumentalism and show how it shattered the bond between morality and tradition that made constitutional criminal law possible. Part III will show the Court's efforts in the aftermath of the instrumentalist revolution to use tradition without morality as a basis for distinguishing civil and criminal statutes, as well as the Court's currently emerging recognition that the true difference lies in a statute's retributive purpose. Part IV will describe the Court's effort to invalidate statutes that authorize punishment without culpability, its retreat from this effort, and its eventual decision to use statutory interpretation to protect the values underlying the culpability principle in most federal cases. Part V will show how the same pattern played out in the Court's elemental manipulation cases. In this context, the Court tried to prevent legislatures from redefining elements of crimes as affirmative defenses or sentencing factors in order to evade the requirement of proof beyond a reasonable doubt. Recently, the Court has engaged in a more limited effort to prevent elemental manipulation in a series of cases focusing on sentencing factors and the right to a jury trial. Part VI will show how a similar pattern played out in the context of proportionality in punishment. The Court struck down several statutes on the ground that the...