Reconsidering the mistake of law defense.

AuthorMeese, Edwin
PositionII. The Common Law Rule That Ignorance or Mistake of Law Is No Excuse through Conclusion, with footnotes, p. 738-784 - Symposium on Overcriminalization


      Several rationales have been offered in defense of the ignorance or mistake rule. (64) Close examination shows that reflexive application of the common law rule can be unjust and irrational in many criminal cases brought today.

      1. Everyone Knows the Criminal Law

        The first and oldest justification is that ignorance or mistake of the law cannot be an excuse since every person is presumed to know the law. (65) The rationale for the presumption is that people generally know what the law forbids in whatever jurisdiction they live. Even if they do not, the knowledge is easy to acquire, so anyone who does not learn what is outlawed is, at least, guilty of negligence. (66) That presumption has the virtue of being simple and straightforward, and it was reasonable in Blackstone's days, when the penal code was small and reflected community mores. The problem is that this principle is no longer a sensible one, at least not when considered as an across-the-board rule.

        Over time, the justification for the ignorance-of-the-law rule began to wear thin. Victorian-era judge and legal historian Sir James Fitzjames Stephen described the presumption of knowledge of the law as resembling "a forged release to a forged bond." (67) As the late-nineteenth-century jurist John Austin wrote, even then the proposition "that any actual system is so knowable, or that any actual system has ever been so knowable," in his colorful words, is "notoriously and ridiculously false." (68) In this century, Jerome Hall described the rule as "an obvious fiction." (69) Other critics concluded that "even though the ignorance rule may have been justified in the early days of the criminal law in England," over time that presumption has become "indefensible as a statement of fact." (70) Edwin Keedy was even less kind; he called the presumption "absurd." (71)

        It is easy to see why. The first federal criminal statute created approximately thirty offenses. (72) Today, the federal and state penal codes are immense in size. (73) There are more than 4,000 federal criminal statutes alone spread out across the fifty-one titles and 27,000 pages of federal law--so many, in fact, that no one, not even the Justice Department, knows the actual number of federal criminal offenses. (74) This growth has been particularly large in the field of "regulatory crimes"--that is, offenses that consist in violation of a regulatory scheme governing the environment, commerce, finance, or health and safety. (75) And if you include federal regulations that can be enforced in criminal prosecutions, the number of potentially relevant federal laws may exceed 300,000. (76)

        The federal criminal law also is not limited to crimes that mirror any readily recognizable moral code. (77) No criminal code that outlaws the unauthorized use of Smokey the Bear's image or the slogan "Give a Hoot, Don't Pollute" can credibly claim to exclude trivial conduct wholly unrelated to moral delinquency. (78) Other equally nefarious crimes are the failure to keep a pet on a leash that does not exceed six feet in length; (79) digging or leveling the ground at a campsite; (80) picnicking in a nondesignated area; (81) operating a "motorized toy, or an audio device, such as a radio, television set, tape deck or musical instrument, in a manner ... [t]hat exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet" (whatever that means); (82) "[b]athing, or washing food, clothing, dishes, or other property at public water outlets, fixtures or pools" not designated for that purpose; (83) "[a]llowing horses or pack animals to proceed in excess of a slow walk when passing in the immediate vicinity of persons on foot or bicycle"; (84) operating a snowmobile that makes "excessive noise"; (85) using roller skates, skateboards, roller skis, coasting vehicles, or similar devices in non-designated areas; (86) failing to turn in found property to the park superintendent "as soon as practicable"; (87) and using a surfboard on a beach designated for swimming. (88)

        Historically, this growth in the criminal law was not a major public policy problem because of the scienter or mens rea element in the criminal law. The common law placed great emphasis on the requirement that a person could be found guilty only if he acted with a "vicious will." (89) Given that requirement, the common law courts found it unnecessary to require that a defendant be shown to have acted with the purpose of intentionally breaking a known law. (90) Congress, through the scienter element, in effect required the government to prove that a person knew that he committed acts that were wrongful, harmful, or illegal. A mens rea requirement was deemed essential to the criminal law--and therefore to freedom--because it did not punish reasonable mistakes honestly made (91) or actions that were negligent or accidental. (92) It distinguished between innocent and guilty parties by requiring the state to prove that an offender was blameworthy.

        To be sure, there were exceptions to the mens rea requirement. What were known as "public welfare offenses" are the best example. That narrow exception was limited to violations of housing, sanitary, motor vehicles codes, and the like. Also, public welfare offenses imposed only light monetary fines and did not single out anyone for public obloquy. (93) Indeed, some courts noted that imprisonment was incompatible with the reduced scienter element for such offenses. (94) Public welfare offenses, like malum prohibitum crimes, truly were a small-scale exception to the proposition that the criminal justice system should not condemn someone who neither intended to break the law nor knowingly engaged in obviously harmful conduct.

        That is no longer true. (95) Today, Congress oftentimes creates felony offenses that do not require proof of Blackstone's "vicious will." (96) These offenses authorize imprisonment and carry the same moral condemnation as common law crimes. (97) Some such laws require only proof of negligence, while some establish strict liability offenses. (98) That development is a dramatic change from Blackstone's day.

        An additional problem stems from the growth of the administrative state. Laws delegating to federal administrative agencies the power to flesh out a statutory scheme often have included power to define the terms of criminal offenses. That practice is defended on the ground that administrative expertise is needed to ensure that the public is adequately protected against whatever schemes an offender can devise. But pursuing that tack creates its own problems. Not every regulatory scheme can be readily used as the basis for a criminal prosecution. Some public welfare laws have an expansive reach and delegate broad authority to officials to craft a detailed regulatory scheme using changing, newly available scientific data. The promulgation of implementing regulations can lead to an avalanche of positive criminal laws in one form or another. (99) That approach may serve well the needs of officials tasked with filling in the blanks of a regulatory program, but it ill serves the interests of regulated parties, who need clearly understandable rules defining criminal liability in order to avoid winding up in the hoosegow. Worse still is the prospect that the government has interpreted its regulations in nonpublic guidance documents that, in effect, create "secret law." (100)

        The environmental laws are an example of that predicament. The marriage of the environmental and criminal laws raises concerns not present in the case of common law or, to use the vernacular, contemporary street crimes.

        The criminal laws historically have focused on actual or likely immediate physical or monetary injury to a particular individual. The facts of the crimes themselves are readily understandable and provable in court. Anyone can easily comprehend the significance of the image of a person, smoking gun in hand, standing over the dead body of a longtime enemy or rival, shouting out, "He deserved it!" The prosecution can present that scenario to a jury in a manner that leaves no doubt what happened, how it happened, to whom, by whom, and why.

        But the same cannot be said of the environmental laws. They primarily seek to reduce the potential, long-term risk of injury to human health and the environment generally, not just to a specified person or persons. The scientific evidence necessary to establish the likelihood and type of harm can be a matter of estimate, judgment, and dispute even among experts. To empower regulators to reduce such potential, evolving risks, the environmental laws use broad, aspirational, complex, and dynamic standards in order to enable regulators to capture all possible harms. Unlike the criminal laws, which require that forbidden conduct be defined with certainty, the environmental laws intentionally leave regulators ample room to maneuver in case new evidence amplifies the known potential adverse effect of hazardous substances (e.g., carcinogens) or brings to light new harms. (101)

        Moreover, the environmental laws often do not require proof of the same type of mental state and actions that ordinary crimes demand. (102) Some criminal environmental laws require proof of the same "evil meaning" mind demanded by common law crimes. (103) But most can lead to a conviction if a person knew what he was doing, even if he did not know that what he was doing was illegal or wrongful, (104) and sometimes even if he merely acted negligently. (105) Moreover, the "knowledge" necessary to establish a violation can be imputed to a person from the knowledge of others in his company. (106) As far as the necessary criminal acts go, a person can be held liable not only for his own actions, but also for the conduct of others under his supervision because of his position in the company. (107) In some...

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