The myth of morality and fault in criminal law doctrine.

• Author: Diamond, John L.

1. Introduction

   It is difficult, but very tempting, to justify criminal law in moral terms.(1) The criminal is morally condemnable.(2) Murder, robbery, larceny, and kidnapping are repulsive acts against society perpetrated by a culpable actor who chooses to violate fundamental social norms. Under this analysis, the defendant's evil intent should be punished.(3) The criminal is deserving of punishment, and society deserves to be protected from the criminal's conduct.(4)

   The difficulty with this analysis is that there are too many important exceptions where subjective moral culpability is not a prerequisite to criminality. It is, of course, possible to marginalize these inconsistencies from a model of criminal law that punishes only the blameworthy. The pervasiveness of the exceptions, however, argues against such marginalization.(5) This is not to suggest that criminal law does not address the morally repugnant. Furthermore, I do not argue that cultural relativism precludes identifying culpable attacks on society. Rather, criminal law groups selective samples of the reprehensible with the innocent and effectively condemns both. What is fascinating is how and why criminal law makes such selections and, to a large extent, achieves general acceptance in society.

   Ultimately, criminal law can be perceived usefully as a constellation of symbolic behavioral guideposts that project value and directional mandates. The immorality is not necessarily that of an individual transgressor or criminal, but the potentially inadvertent and, in a normative (but not positive) sense, nonculpable transgression of those directional boundaries. In essence, criminal law can be understood as a strict liability regime where personal condemnation is imposed on the transgressor for intentional or innocent boundary broaching.(6) What partially obscures this strict liability regime is that "mens rea" or individual state of mind is often, though not consistently, a part of the regime's directional mandates. Indeed, the criminalization of certain states of mind is part of the culture's mythology of individual culpability. This is a myth not because the criminal law never includes clear examples of intentional transgression, but because intentional violations are too selectively woven for the law to be steered by that principle.

   While the criminal law historically may have imposed punishment based on objective deviations without reference to personal culpability, contemporary scholarship and public perception generally embrace the conception that personal moral culpability and blameworthiness delineate modem criminal law.(7) For over thirty years, the Model Penal Code has attempted to define and mold criminal law as a neutral condemnation of individual moral wrongdoing.(8) In doing so, the Code has attempted to reenforce this moral model; nevertheless, it has in fact given more evidence of a regime grossly inconsistent with that notion. In short, criminal law is not explained by moral individual culpability, but utilizes the imagery of morality to define directional boundaries within society, even when the law requires punishing a blameless individual as a pawn in this broader agenda.

   Some recent scholarship has expressed concern over a perceived proliferation in regulatory crimes imposing very serious criminal sanctions without requiring proof of a culpable mens rea.(9) This Essay contends that the issue is more fundamental. While such regulatory offenses, historically associated with minor monetary punishment, generally have been marginalized by commentators as inconsistent with the thrust of criminal law, the dispensing of individual moral culpability is far more pervasive and indigenous to criminal law theory.(10)

   This Essay examines moral fault in the criminal law by looking at three broad areas of the criminal law where individual moral fault is not required before the defendant can be convicted: Strict liability crimes, negligence based crimes, and result based crimes. Part II discusses strict liability crimes in a traditional common law regime and under the Model Penal Code. Actors who commit such crimes do not possess the type of moral culpability that we typically associate with the criminal law. Part III examines the pervasiveness of negligence as a basis for criminal liability, and discusses several reasons why negligence should not serve as a basis for criminal liability if the criminal system were based on individual moral culpability. Part IV addresses the fact that in many cases, criminal liability turns on the end result of an individual's actions, rather than on her intent or lack of intent that such a result come about. These crimes, too, impose and withhold punishment without any clear correlation to the blameworthiness of the individual.

   Having discussed three areas of the criminal law where criminal responsibility is not necessarily linked to individual moral culpability, this Essay continues in Part V by examining current trends in criminal law, which indicate an increase in crimes for which no moral fault is required. Given that strict liability crimes, negligence based crimes, and result based crimes are not justified in a system equating criminal punishment with moral fault, Part VI attempts to explain why our criminal justice system nonetheless continues to utilize these crimes.

2. Criminal Law as a Strict Liability Regime

   Contemporary American criminal law commonly is viewed as a fault based system, and its requirement of personal fault is often contrasted with noncriminal civil sanctions.(11) Nevertheless, strict or no-fault liability is indigenous to the criminal law regime. The criminal law imposes strict liability in two major ways. First, it criminalizes behavior even when the actor does not know that the relevant law exists. Second, it does not always allow a mistake of fact defense to those crimes where the surrounding circumstances determine liability.

   1. Strict Liability for Knowing Prohibitions

      As a general proposition, ignorance of criminal law is not an excuse to criminal liability.(12) From an intuitive moral fault perspective, it is difficult to condemn an individual for breaking a law she did not know existed.(13) "I didn't know it was prohibited or wrong" is a compelling exculpation when true. It is even more compelling when the individual cannot reasonably be faulted for not knowing the criminal law that she transgressed.(14) Yet, with very limited exceptions,(15) even nonnegligent ignorance is not excused. Grave criminal penalties can be imposed against an individual who did not know that what she was doing was illegal, and indeed reasonably should not have known.(16)

      A utilitarian explanation frequently is given to justify this basic operating premise of criminal law.(17) Proponents reason that claiming ignorance is too easy and requiring proof of knowledge of the law would hamper too much criminal prosecution.(18) Such arguments, however, run counter to a fault notion of criminal law.(19) Indeed, an argument that allowing reasonable ignorance of the law as an excuse would disrupt orderly criminal prosecution simply concedes the frequency and importance of disallowing exculpation based on ignorance.

      Alternatively, one can attempt to trivialize the instances when the criminal system does not excuse reasonable ignorance of criminal prohibitions. Most criminal law prohibitions are intuitively understood by the population.(20) Terms such as malum in se characterize criminal prohibitions perceived as inherently evil, and most people probably are aware of these crimes.(21) Nevertheless, there is a significant grouping of crimes acknowledged to be malum prohibitum.(22) Such acts are criminal not because they are recognized as evil, but because the state has proscribed them as wrong.(23) Murder may be malum in se, but a variety of prohibitions and licensing requirements are malum prohibitum.(24) The possession of a gun may be legal in one state, but severely punished in another. Yet, there is no relaxing of the principle that ignorance of the law cannot excuse a violation of that law.(25)

      Even the Model Penal Code, which purports to codify a moral fault based system of criminal law, accepts the basic principle that ignorance of the law is no excuse.(26) While both the Model Penal Code and a majority of jurisdictions contain exceptions to this principle,(27) such exceptions are essentially estoppel rules, excusing criminal conduct if the state has failed to formally publish the criminal law or has misstated it.

   2. Factual Strict Liability

      Ignorance of the law is just one aspect of criminal law's divorce from personal culpability. So-called "strict liability" or "public welfare" crimes also are part of the criminal law.(28) Such crimes not only reject reasonable ignorance of the law as a defense, but also fail to excuse reasonable ignorance of the facts that make the actor's conduct criminal.(29)

      If, for example, a bartender serves a minor an alcoholic drink, many states impose criminal liability on the bartender even if he nonnegligently failed to recognize that the minor was in fact under age.(30) The minor's false identification and extremely mature appearance are no defense. While the defendant admittedly may not have been morally at fault, the criminal justice system justifies his conviction as necessary to avoid a potentially large social harm while imposing only a minor punishment that rarely involves more than a relatively small fine.(31)

      Although the Model Penal Code vehemently rejects strict liability crimes as inconsistent with a moral fault based criminal law system,(32) most states utilize strict liability punishments and continue to characterize these acts as crimes.(33) The Model Penal Code's argument that including strict debases the notion of a fault based criminal law(34) apparently has not persuaded most political jurisdictions.

      If public welfare crimes were the only examples...