Punishment without culpability.

• Author: Stinneford, John F.
• Position: IV. Punishment Without Borders - The Creation of Strict Liability Crimes through Conclusion, with footnotes, p. 684-723 - Symposium on Overcriminalization

4. PUNISHMENT WITHOUT BORDERS--THE CREATION OF STRICT LIABILITY CRIMES

   One of the first things law students learn in their introductory Criminal Law course is the principle Actus non facit reum nisi mens sit rea (157): The act does not make one guilty unless the mind is also guilty. (158) As noted above, this principle has been so fundamental to the criminal law that courts and commentators treated it as axiomatic for more than 500 years. (159)

   One of the next things law students learn is that this principle is axiomatic no more. Since the middle of the nineteenth century legislatures have created strict liability crimes that punish even those who do not have a guilty mind. Since the first part of the twentieth century, the Supreme Court has explicitly endorsed the constitutionality of such laws. In today's world, the act may make one guilty even though the mind is innocent.

   But even this is not entirely correct. As we will see below, even at the height of the instrumentalist revolution, the Supreme Court expressed its belief that it is unjust to impose punishment in the absence of culpability. It has sometimes attempted to enforce this principle directly as a matter of constitutional law, but has retreated in the face of the disruption such enforcement threatened to cause. It now enforces the culpability principle through statutory interpretation and limited constitutional intervention, but this enforcement is incomplete and haphazard.

   1. STRICT LIABILITY, INSTRUMENTALISM, AND THE CULPABILITY PRINCIPLE

      Strict liability offenses punish the defendant's conduct without requiring proof of any culpable state of mind relating to such conduct. (160) This category of crime first arose as part of the regulatory state's response to the changes wrought by the Industrial Revolution, and its legitimacy was bolstered by the arguments of instrumentalists such as Holmes and Dewey. (161) As Francis Sayre wrote in his seminal article on the topic, these new offenses reflected a conceptual shift in the criminal law from the determination of "individual guilt" to the prevention of "social danger." (162)

      This shift toward using criminal punishment as a method of social control presented a potential constitutional problem. As discussed above, the various constitutional provisions relating to criminal law suggest that "crime" has a substantive constitutional meaning. A criminal statute is a statute that uses sanctions to express the community's blame or condemnation for the commission of an unlawful act. Strict liability statutes create the risk that such blame could be directed at morally innocent people--people who perform the forbidden act but do so reasonably, in good faith, and without knowledge of the facts that make the act wrongful or illegal.

      Of course, this is only a problem if the idea of culpability--like the ideas of "crime" and "punishment" in the criminal-civil distinction cases--has some substantive constitutional meaning. A positivist would argue that culpability does not have such meaning. Culpability is whatever the legislature says it is. (163) If the legislature enacts a statute that requires a showing of mens rea to establish culpability, mens rea is required. If it enacts a statute that does not require mens rea to establish culpability, mens rea is not required. One is culpable for violating a criminal statute, not for doing so with some constitutionally predetermined state of mind.

      The Supreme Court's early strict liability cases adopted an unabashedly instrumentalist and positivist perspective. As discussed in Part II.D above, the Supreme Court announced in the Balint and Dotterweich cases that the legislature was free to use the criminal law for regulatory rather than punitive purposes and that there was no requirement that criminal statutes be interpreted to require proof of moral culpability.

      But lying just beneath the surface in both cases are suppressed themes of punishment and innocence. The Balint and Dotterweich courts both acknowledged that strict liability statutes authorized conviction of the "innocent." (164) Both courts also recognized that it is unjust to punish the innocent. (165) Finally, each court carefully avoided mentioning the punishment that would flow from its affirmance of the defendants' convictions.

      Violation of the Narcotic Act was a felony that subjected Balint to up to five years in prison, yet the Balint court never mentioned either the word "felony" or the maximum punishment available under the statute. (166) Similarly, Dotterweich's three misdemeanor convictions meant that he could be sentenced to up to three years in prison and would spend the rest of his life with a criminal record. (167) But the Dotterweich Court took no note of Dotterweich's potential sentence. In order to uphold strict liability criminal statutes as a permissible form of regulation, the Balint and Dotterweich Courts avoided acknowledging that the punishments they imposed were every bit as real as those imposed by traditional criminal statutes.

      The culpability principle remained just below the surface in Balint and Dotterweich because the Court firmly held it there.

   2. THE TURN AGAINST STRICT LIABILITY

      The Dotterweich Court's faith that prosecutors would not use strict liability statutes to prosecute morally innocent people turned out to be ill-founded. In the decade between 1952 and 1962, the Supreme Court considered four cases in which prosecutors used strict liability criminal statutes to prosecute individuals the Court considered morally innocent. In Morissette v. United States, (168) the federal government prosecuted a man for theft without proving that he intended to steal and despite strong evidence that he had a reasonable good faith belief that the property had been abandoned. In Lambert v. California, (169) the state prosecuted a woman for failing to comply with a registration requirement of which she neither knew nor had any reason to know. In Smith v. California, (170) the state prosecuted a bookseller for possessing an obscene book even though he did not know the book's contents. Finally, in Robinson v. California, (171) the state prosecuted a person for being addicted to narcotics without proving whether the addiction was acquired voluntarily or involuntarily and without proving any voluntary act of narcotics ingestion.

      As will be shown immediately below, in each of these cases the Court thwarted the prosecution because it believed it was unjust to impose punishment without proof of moral culpability. But because the Court had previously rejected the culpability requirement in Balint and Dotterweich, it struggled to find a legal basis for its decision to invalidate these convictions. In Morissette, Lambert, and Smith the Court held that a conviction could not be sustained without proof of mens rea, but it grounded this holding on a different legal rationale in each case (first statutory construction, then the act-omission distinction, then emanations from the First Amendment). Finally, in Robinson, the Court overtly broke with instrumentalism, holding that it was cruel and unusual to impose punishment without proof of culpability. But the decision in Robinson was not grounded on the lack of a mens rea requirement. Rather, it was based on the Court's belief that narcotics addicts are not responsible moral agents--despite the fact that Robinson's addiction did not meet the traditional definition of legal insanity. In other words, although Robinson rejected instrumentalism's rejection of morality, it retained instrumentalism's rejection of tradition as a source of moral and legal standards. As we will see below, this rejection of tradition in favor of scientism made Robinson's effort to revive the culpability principle too disruptive for the Supreme Court to maintain.

      1. Morissette and Statutory Construction

         The first case, Morissette v. United States, (172) involved a defendant who went onto a practice bombing range owned by the federal government, collected a number of spent bomb casings, and made $84 selling them for scrap. (173) The casings had been "dumped in heaps" on the bombing range, and had been allowed to sit rusting for up to four years. (174) Morissette removed the casings in broad daylight and in plain view of those passing by, making no effort to hide what he was doing. (175) When the government investigated the disappearance of the casings, Morissette admitted taking them but told the investigators he thought they had been abandoned. (176) He was ultimately charged with violating 18 U.S.C. [section] 641, which made it a crime to "embezzle[], steal[], purloin[], or knowingly convert[]" government property. (177) At trial, Morissette tried to argue that he should be acquitted because his belief that the casings were abandoned negated any intent to steal, but the court refused to let him do so. (178) The Court of Appeals upheld this ruling on the ground that "knowing conversion" was a strict liability crime. Because Congress did not specifically state that intent to steal was an element of the offense, the court felt bound by Balint to construe the statute as imposing strict liability. (179)

         The Supreme Court reversed Morissette's conviction and appeared to be shocked by the government's effort to prosecute him for theft under circumstances strongly suggesting that he was innocent of any intent to steal. Unlike the Balint and Dotterweich Courts, the Morissette Court focused on the fact that a criminal conviction would cause the defendant to suffer real punishment. The Court noted that Morissette was not only sentenced to two months imprisonment or a $200 fine, (180) but was "brand[ed] ... as a thief." (181) Such branding would impose significant stigma on Morissette because theft crimes are "invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution." (182) Had the bomb casings Morissette took been...