The Awareness of Wrongdoing Requirements in the Wake of Hazelwood

• Publication year: 2013

§ 30 Alaska L. Rev. 95. THE AWARENESS OF WRONGDOING REQUIREMENTS IN THE WAKE OF HAZELWOOD

Alaska Law Review
Volume 30
Cited: 30 Alaska L. Rev. 95

THE AWARENESS OF WRONGDOING REQUIREMENTS IN THE WAKE OF HAZELWOOD

Brian Flanagan ^[*]

ABSTRACT

State v. Hazelwood shook Alaska's jurisprudence and suggested the end of the due process requirement of awareness of wrongdoing for serious criminal convictions. However, prior and subsequent case law suggest a more limited principle that the awareness of wrongdoing requirement only applies to cases involving omission liability or willful violation, not to the entirety of criminal law, and Hazelwood would survive only as an extension of this distinction. Still, premising such a requirement on judicial classification of offenses as positive action or omission liability does not appear to have emerged by design, and the result has the potential for inconsistency, arbitrariness, and misapplication. This Note first demonstrates that the only recognizable pattern to emerge from the case law is to require an awareness of wrongdoing for omission offenses and for violations of statutes that specifically require willful violation and second argues that the requirement of awareness of wrongdoing should not hinge on omission versus affirmative action liability, because it has too great a potential for arbitrary and inconsistent application.

INTRODUCTION

The Alaska Constitution prohibits the deprivation of "life, liberty, or property without due process of law," and guarantees a right to "fair and just treatment in the course of legislative and executive investigations." ^[1] In Speidel v. State, ^[2] the Alaska Supreme Court held that a felony conviction for inadvertent or negligent action violates the defendant's right to due process. ^[3] The court stated that an injury could only amount to a crime when the individual charged with the crime had an "awareness or consciousness of some wrongdoing." ^[4] The Alaska Supreme Court has subsequently refused to impose convictions for negligent conduct and has required a demonstration that the defendant had an awareness of wrongdoing. ^[5] In 1997, however, the Alaska Supreme Court stated in State v. Hazelwood ^[6] that negligence could serve as the criminal intent necessary to support a conviction, and further that the requirement to demonstrate criminal intent does not require the State to demonstrate an awareness of wrongdoing. ^[7]

Some critics go so far as to say that Hazelwood is irreconcilable with the Alaska jurisprudence. ^[8] Not only does the fundamental contrast in language support such an argument, but also no decision that cites Hazelwood additionally cites Speidel or forbids convictions absent a defendant's awareness of wrongdoing. ^[9] However, other decisions since Hazelwood continue to require that the State demonstrate that the defendant had an "awareness of wrongdoing" or else hold that a conviction of the defendant violates his or her right to due process. ^[10] Consequently, despite the language of the decision, Hazelwood did not overturn Speidel either explicitly or implicitly.

Given this history, what demonstration of criminal intent satisfies due process, and when must the State demonstrate that the defendant possessed an awareness of wrongdoing in order to convict him or her? The Alaska Court of Appeals managed to create a rule, compatible with the case law, that the defendant must possess an awareness of wrongdoing, and therefore cannot be convicted under a negligence theory, in two situations. ^[11]

First, the defendant cannot be convicted, absent an awareness of wrongdoing, if the statute under which the defendant is charged proscribes "willful" violation. ^[12] Such a rule derives from a basic process of statutory interpretation in that the courts simply assign meaning to the term "willful," and so this rule does not merit additional attention.

Second, the defendant cannot be convicted, absent an awareness of wrongdoing, if the underlying criminal action was an omission. ^[13] An omission, in contrast to a positive action, is a "failure to act ... or [a] failure to act under circumstances giving rise to a legal duty to act." ^[14] Some would place more constitutional restrictions on the government when the government creates omission offenses rather than positive action offenses, because the former compels rather than forbids conduct, and therefore imposes a greater burden on free action. ^[15] They would welcome an "awareness of wrongdoing" requirement for omission offenses. However, premising an awareness of wrongdoing requirement on whether or not an offense is a positive action or omission offense is dangerous because a statute could be written in either form and still proscribe or compel virtually identical conduct. As positive action and omission offenses function more alike than not, it does not make sense to have a different constitutional requirement for each of them. That the Alaska Court of Appeals has already misstated positive action offenses as omission offenses exemplifies how easily the distinction can be blurred. ^[16]

This Note will demonstrate how the Alaska Court of Appeals' rule of imposing an awareness of wrongdoing requirement in cases in which the defendant was charged under a statute that requires willful violation or a statute that creates omission liability adequately encompasses the case law and provides a workable estimate for when Alaska courts will require that the State prove the defendant's awareness of wrongdoing in order to support a conviction. However, it criticizes the emphasis on distinguishing between positive action and omission cases.

Section I of this Note will review the history of the due process protection of the mens rea requirement in Alaska preceding Hazelwood. It will conclude that a rule imposing an awareness of wrongdoing requirement in cases which premise liability on either willful violation or omission adequately encapsulates the history of the requirement. Section II will analyze State v. Hazelwood in the context of that case law and will conclude that Hazelwood does not violate the rule of the Alaska Court of Appeals, as the relevant statute in Hazelwood neither proscribed willful violation nor imposed omission liability. Section III will review the cases since Hazelwood. It again concludes that the rule adequately encompasses the application of the requirement on the cases following Hazelwood, and thus should serve as the rule for practitioners who later attempt to estimate whether courts will require that the State prove the defendant's awareness of wrongdoing. Finally, Section IV will point out the dangers of premising a condition of awareness of wrongdoing on omission liability.

I. THE HISTORY OF MENS REA PROTECTION IN ALASKA

This Section, divided into three Subsections, analyzes the case law preceding State v. Hazelwood. Subsection A examines cases providing the strongest language in support of a universal requirement of subjective awareness of wrongdoing; Subsection B examines cases premising liability on negligence instead of subjective awareness; Subsection C examines the court of appeals decisions immediately preceding Hazelwood that began to apply the awareness of wrongdoing requirement only to offenses premised on omission liability or offenses requiring willful violation.

A. The Development of the Awareness of Wrongdoing Requirement

In Speidel v. State, ^[17] the Alaska Supreme Court declared that a felony conviction absent a criminal intent deprives the defendant of due process of the law. ^[18] The relevant statute in this case criminalized individuals who "willfully neglect" to return a motor vehicle. ^[19] The statute additionally provided the definition of the mens rea under which the defendant was ultimately convicted. The statute defined the mens rea of "willfully neglects" to mean "omits, fails, or forbears, with a conscious purpose to injure, or without regards for the rights of the owner, or with indifference whether a wrong is done the owner or not." ^[20] The Alaska Supreme Court invalidated the statute because it permitted persons to receive a felony sentence despite having an innocent mind. ^[21] The court accepted the "with conscious purpose to injure" part of the definition, but it rejected the criminalization of failing to return a vehicle "without regard for the rights of the owner" or "with indifference whether a wrong is done the owner or not." The court reasoned that such a definition could lead to one being guilty under the statue even in the absence of "any conscious deprivation of property or intentional injury." ^[22]

Ultimately, the court held that for an injury to be considered a crime it must be "inflicted by intention," and the defendant must have acted with an "awareness or consciousness of some wrongdoing." ^[23] However, the court neither defines awareness or consciousness of wrongdoing nor outlines how future prosecutors must prove it.

The Alaska Supreme Court would not go so far as to forbid public welfare offenses, signaling to the legislature that it could criminalize conduct absent awareness of culpability if the penalty were minimal and the danger to society necessitated criminalization. ^[24] Consequently, the court highlighted that the penalty assigned to section 28.35.026 of the Alaska Statutes was a felony throughout the decision. ^[25]

The statute at issue in Speidel involved a "failure to return,"...