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Criminal law reform and the persistence of strict liability.


Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute's Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens tea for every element of criminal offenses--a policy that rejected longstanding use of strict liability for significant offense elements. The second movement, which could be called the tough-on-crime movement, became the more significant. This movement led to the transformation of American criminal-justice policy that expanded criminal offenses, enforcement, and sentences, resulting in a national incarceration rate that quintupled and became by far the world's highest.

This Article identifies the twenty-four states that codified the MPC's culpability rules and then recounts an extensive survey of the case law in those states to assess the reforms' effect on judicial interpretation of mens rea requirements. It finds that legislative codifications of presumptions for mens rea have had surprisingly little effect on courts that define mens rea requirements when interpreting criminal statutes. It describes the recurrent rationales that courts use to impose strict-liability elements in a wide range of crimes, notwithstanding statutes that direct presumptions to the contrary. It then offers an explanation for this outcome--a substantial failure of the MPC-inspired revision of criminal codes--that emphasizes the continuing normative appeal of strict liability, the influence of instrumental rationales for punishment, and the limits of the judicial role in an era in which the legislative and executive branches are vastly expanding the reach and severity of criminal punishment.

I.   Judicial Inference of Culpability and Strict Liability
       A. A Note on Methodology
       B. Limits on Culpability Presumptions (Part One): Plain
          Language or Statutory Purpose
       C. Limits on Culpability Presumptions (Part Two):
          Restrictive Application and Non-Acknowledgement
       D. Counterexamples: Taking Culpability Presumptions
       E. Reasons for the Weak Effect of Culpability
          1. Legislative Drafting
          2. Judicial Role--Inferring Intent Versus Enforcing
             Prior Commitments
II.  Legislative Support for Strict Liability
       A. State Revisions to the MPC Culpability Presumptions
       B. Other Legislative Approval of Strict Liability
III. The Alternative to Proportionate Liability: Strict Liability
     Within the Scope of Culpable Conduct
       A. The Implicit Parameters of Strict Criminal Liability
       B. A Culpability-Based Rationale for Strict-Liability
IV.  Why Courts Circumvent Culpability Presumptions
       A. Culpability's Limited Significance
       B. Judicial Roles and Political Consensus
V.   The Costs of Instrumental Reasoning and Unacknowledged


Two significant reform movements transformed American criminal law in the quarter century that began in the late 1960s. Both are familiar, yet in the continuing story of American criminal law they rarely appear in the same narrative. In part that is surely because their origins and effects were starkly different; in critical ways they were in conflict. That conflict meant that, on core questions of criminal law, one reform movement had to win and the other had to lose. The effects of the movements' conflict continue today in the administration of state criminal law.

The first movement was the wave of criminal-code reform inspired by the American Law Institute's (ALI's) Model Penal Code (MPC), which was first published in 1962. (1) Broadly speaking, the MPC had two ambitions. One was to bring analytical clarity to the definition and interpretation of criminal statutes that were encrusted with ill-defined common-law terms such as "malice aforethought." (2) A tradition of poor drafting plagued these statutes, so they commonly employed multiple mens rea terms and conduct-defining terms in the same offense. (3) The second ambition was substantive: the MPC advocated a criminal law committed to a pervasive requirement of subjective culpability with respect to every significant element of every offense. (4) MPC policy, in other words, rejected strict liability (5) for any element of a crime, which resulted in liability being imposed more proportionately to an actor's moral fault than was true in the common-law tradition.

The second reform movement was less singular in its origin and in the identity of its leading reformers, but it was indisputably more significant. This tough-on-crime movement represented the transformation of criminal law, enforcement, and sentencing policy triggered by the rising crime rates and social disorder of 1960s--and arguably by the political transformations of the civil rights movement, which occurred concurrently. Familiar features of this movement include a dominant tough-on-crime political discourse, a national incarceration rate that quintupled in three decades to become the world's highest, an increased racial disproportionality in inmate populations, a creation of broad new criminal offenses and pretrial detention policies, a punitive approach to problems of illicit drug use and distribution, and a rejection of punishment practices based on individualized assessments of offenders in favor of retributive and deterrence rationales codified in nondiscretionary sentencing rules. (6)

The MPC is generally considered a success for having inspired roughly half the states to revise their criminal codes in ways that indisputably reveal the MPC's influence. (7) But a closer look at state codes, and their interpretation since the 1970s, reveals that the MPC's analytical ambition was a much greater success than its substantive goal, and further that the failure of the latter undermines the former. The MPC's substantive agenda turned out to be poorly timed; legislatures took up code reform at the same time that they sought to dramatically increase criminal law's effectiveness as a tool against violent crime and drug markets, which they did by increasing sentences, the range of offenses, and the scope of individual crime definitions. The MPC's substantive agenda cut the other way by seeking to limit liability unjustified by a finding of fault through proof of mens rea. When the MPC reform movement conflicted with the tough-on-crime movement, it was, unsurprisingly, the MPC's reform efforts--the efforts of legal professionals and academics more than politicians--that lost.

Yet that loss is not readily apparent, because twenty-four state codes notably resemble the MPC, especially as to the central culpability rules in MPC "Part I: General Provisions"--the provisions that provide definitions, premises, and interpretive rules for specific offenses. (8) Those provisions define the critical elements of the MPC's analytical advance: an exclusive list of clearly defined mens rea terms coupled with a set of interpretive rules that both imply mens rea requirements in offense definitions that lack amens rea term and that presume that an explicit mens rea term in a statute applies to all of its elements. (9) The problem is that the MPC's analytical and substantive agendas are not easily separated. Rejecting the commitment to proportional, subjective culpability undermines the MPC's approach to consistent analytical clarity in the interpretation of criminal offenses, and thus in the clarity of criminal law generally.

The project of this Article is, first, to document how the MPC-inspired analytical advances in state criminal codes have turned out to be less significant than they initially seemed. The second ambition is to explain why American criminal law turned out this way. One explanation lies, as noted above, in recent political history. A second explanation, however, is situated in contemporary criminal-law theory, where debates continue, by courts as well as scholars, regarding the normative appeal of the MPC's commitment to proportional culpability. More broadly, the debate is about the meaning of criminal law's core premise, actus non facit reum nisi mens sit rea: (10) no guilty act without a guilty mind. Anglo-American criminal law has long moved on from the most restrictive understanding of this premise, labeled the "unlawful act" theory, attributed to Sir Edward Coke and according to which the voluntary commission of any criminal conduct made one criminally liable for any resulting harm. On Coke's view, wrongfully shooting at a chicken and unforeseeably killing a person constituted murder. (11) Its antipode is the MPC position, found in some state codes (12) and defended by many criminal law scholars, that criminal liability requires that an actor be culpable--meaning he has intent, knowledge, or recklessness--as to each significant element of an offense. (13) Among English scholars, this idea is called the principle of correspondence. (14) On both the American and English accounts, the effect of mens rea requirements for each offense element provides its normative appeal: the degree of liability and punishment will be proportionate to culpability and limited by it. Yet the dominant view in contemporary courts regarding mens rea requirements lies between Coke's view at one end of the spectrum and the MPC position at the other. Especially in states that adopted the MPC's culpability provisions, this represents a failure of those statutes (and the MPC model) to constrain and direct judicial decision making. More broadly, the courts' dominant position reveals that the MPC's substantive position on culpability--or the correspondence principle--has proven normatively unpersuasive to courts, which adopt instead a more limited, intermediate role for culpability in criminal liability.

This debate over culpability requirements matters for broader reasons of political legitimacy--the justifications of state authority to punish individuals and the practical meaning of state respect for individual rights. The correspondence principle has been defended as essential to respect for autonomy; it ensures that one is punished only for choices one has made, not for events one did not will or anticipate." It reflects basic values of classical liberalism and rejects the state's power to use individuals for public ends, even for a laudable goal like harm prevention. (16) State codes that fail to abide by the correspondence principle implicitly assert a different justification for criminal law, for state power over citizens' liberty and individual autonomy. Yet most do fail to adhere to the correspondence principle, even the states that enacted MPC culpability provisions. The prevalence of strict-liability elements in state felony crimes, typically for result and circumstance elements, demonstrates this pervasive failure. These strict-liability elements frequently define the difference between greater and lesser offenses, and thus the sole ground for greater (sometimes mandatory) punishments. (17) This form of strict liability, affirmed and expanded by widespread interpretive practices of courts in MPC states, means that punishment bears no proportional relation to culpability, despite states' codification of MPC-based culpability rules.

Finally, this Article's assessment of contemporary criminal law in the wake of the MPC and tough-on-crime reform movements generates insights on issues of judicial craft and institutional role. State courts' patterns of criminal statutory construction provide another lesson in the challenges of simplifying and stabilizing judicial methods of statutory interpretation. In the wake of state legislatures adopting MPC-based interpretive rules for their criminal codes, state courts have frequently disregarded them. When they have not, they frequently construe those interpretive provisions themselves in a way that undercuts their effect. Perhaps more notably, this Article also reveals the limited capacity and inclination of American courts to resist abetting political trends in criminal-justice policy. And this is so even when those trends breach the codified commitments of criminal law, and when courts' alternative is merely to adhere to the legitimate judicial role of narrowly construing criminal statutes and leaving expansions of liability to the political branches. Part I offers a broad survey of judicial interpretations of mens rea requirements in "MPC states"--states I identify based on their codification of the most important MPC culpability presumptions. It identifies recurrent rationales and interpretive choices from decisions in a representative range of MPC states. I then discuss how courts use these rationales to limit or avoid the full effect of their states' MPC-based culpability presumptions. Part II looks more closely at the language of culpability provisions that state legislatures have enacted. It classifies all of the MPC states according to the strength of those presumptions. Most MPC states enacted strong presumptions--meaning rules equivalent to the MPC provisions. A notable minority chose to weaken those presumptions and give legislative approval of strict liability. But those "weak presumption" jurisdictions are not the only ones in which judges favor strict liability, and the strength of the state codes' presumptions do not correlate well with judges' interpretive behavior in those MPC states. Part III describes the implicit limited-culpability principle that prevails among state courts to justify strict liability. The dominant judicial view requires proof only of culpable conduct, or culpability for some basic offense, to which additional strict-liability elements are added to create a more serious offense. Culpability serves only to make actors eligible for punishment; beyond that, instrumental rationales determine offense grades and sentencing severity. Part IV builds on this account to explain why courts have continued to widely endorse strict criminal liability despite legislative codification of presumptions for culpability requirements. The explanatory story describes the normative appeal of a limited role for culpability and also emphasizes courts' institutional role during the last half century's vast expansion of criminal punishment.


A. A Note on Methodology

Although a complete survey of all state statutory provisions governing culpability and adopted from the MPC is presented in Part II, a comprehensive account of judicial interpretation practices for mental-state requirements in the twenty-four MPC states would be a more daunting endeavor than I undertake here. Fortunately, that is not necessary for the present purpose, which is to identify trends in the uses of MPC culpability presumptions and to identify the effects that those presumptions have had in states that codified some version of them. To identify interpretive practices in state courts, I first reviewed all state criminal codes to identify those that codify an identifiable variation of the MPC's key interpretive rules and presumptions regarding culpability requirements for elements of criminal offenses--MPC [section] 2.02(3) and [section] 2.02(4). (18) I coded twenty-four states as "MPC states" on these criteria, listed in Table 1.

As Part II describes in more detail, I subclassified these states as "strong" MPC states if their codes included versions of both MPC [section] 2.02(3) and [section] 2.02(4) and did not significantly weaken these sections' presumptions of mens rea, and as "weaker" or "weak" MPC states if they either significantly modified one of those MPC presumptions or failed to adopt one altogether.

To survey the case law addressing mens rea issues governed by these MPC-based statutes, I limited the inquiry to court decisions from eleven of these twenty-four MPC states--six in the stronger category and five in the weaker. (19) For narrative ease, I focus on the text primarily in seven states: Colorado, Connecticut, Illinois, Missouri, Ohio, Oregon, and (to a lesser degree) Texas. Largely in the footnotes, I add case law from the other four states--Alabama, Indiana, New Jersey, and New York--that have case law that is basically consistent with the case law discussed in the text.

To identify relevant decisions, I read every state appellate decision available on Westlaw in each of the eleven states that cited that state's statutes codifying an MPC-based interpretive presumption for mens rea requirements. (20) From this search, a set of offenses defined in nearly all eleven states appeared--primarily drug offenses, weapons offenses, and offenses involving minors, all of which present recurrent questions of mens rea requirements for critical elements such as a weapon's characteristics or a minor's age. (21) This method has a limit, however, which is itself an indicator of the limited influence of these MPC-based interpretive rules: state courts sometimes address interpretive questions about mens rea requirements without any reference to their states' statutes that govern these questions. (22) To find a sampling of these decisions, I searched state appellate databases and annotated codes for the type of offense that, in other MPC jurisdictions, had presented a mens rea issue that led a court to cite an MPC-based culpability rule. I also identified some decisions in this category by their citation to earlier decisions that had cited the MPC statutes. Finally, I supplemented these approaches by reference to published surveys of state decisional law on specific crimes and prior scholarship on mens rea rules in specific jurisdictions. (23)

The survey reveals widespread judicial endorsement of strict-liability elements in MPC jurisdictions, despite state statutes that dictate presumptions otherwise. (24) Culpability presumptions have failed to displace judicial conventions of statutory interpretation that favor strict liability. The overall picture is one in which codifications of MPC-based mens rea provisions have had only modest effect. (25) Most courts in MPC states are far from committed to strong readings of the culpability presumptions in their codes.

B. Limits on Culpability Presumptions (Part One): Plain Language or Statutory Purpose

To begin, consider a routine mens rea question that faces state courts. Most states have a statute, such as the following, that increases the punishment for basic felony drug offenses upon proof of the additional fact that the conduct occurred within a certain distance from a school. (26) A common definition of the offense reads:
   Any person who, as prohibited in another section, sells or
   possesses with intent to sell to another person any controlled
   substance within one thousand feet of any public or private school
   shall be imprisoned for a term of three years in addition and
   consecutive to any term of imprisonment for any other offenses
   arising from the same conduct. To constitute a violation of this
   subsection, an act of transporting or possessing a controlled
   substance shall be with intent to sell or dispense within one
   thousand feet of a school. (27)

Note that the statute has an explicit mental-state requirement, "with intent to," which appears in the predicate offense as well. (28) The mens rea issue arises from the ambiguity in the last sentence; the question is whether one must act with intent merely to sell, or also with intent that the sale be within 1000 feet of a school.

The Connecticut Supreme Court interpreted this statute in State v. Denby (29) and recognized that its legislature provided guidance for this question in the mens rea presumption it adopted based on the MPC. (30) It recited, "When one and only one of such [mental-state] terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears." (31) The language of the offense in light of this directive, the court concluded, made its meaning unambiguous. (32) The offense "specifically requires a mental state of 'intent,' which must be applied to every element of that statute." (33) The "plain language ... dictates only one construction" (34)--that the 1000-foot requirement is a strict liability element. The prosecutor must prove that the offense occurred within the 1000-foot zone, but she "is not, however, required to prove that the defendant knew that this location was within the zone." (35) This is evident from the "plain language" of the statute, which overcomes the statutory presumption:
   The mental state of knowledge that the location is within the 1000
   foot zone is not set forth in [section] 21a-278a(b). An "intent"
   element is not synonymous with a "knowledge" element, each of which
   is specifically defined in the penal code. The absence of any
   statutory requirement that the defendant knowingly sell within the
   prohibited school zone demonstrates that the legislature did not
   intend to make knowledge an element of the crime. (36)

Denby is a representative example of the relatively low standard that state courts often apply to conclude that a legislative intention for strict liability clearly appears. In contrast to the Connecticut legislature's relative lack of clarity in specifying a strict-liability element, a few state legislatures that enacted both the MPC culpability presumptions and a similar school-zone offense made their intent to impose strict liability exceedingly clear. New Jersey's equivalent statute, for example, specifies that "it shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property." (37) Utah, another MPC state, did the same, as did Louisiana. (38)

The details of the Denby analysis are specific to the decision but the holding is the same in nearly every state that adopted the MPC culpability presumptions, and in non-MPC states as well. (39) Several other states whose codes contain both a version of this offense and the MPC-based presumptions reached the same result, although the clarity of their reasoning varies and differences in statutory language provide some grounds for distinction. (40)

The Oregon Supreme Court reached the same interpretation of its school-zone drug offense, which lacks an express culpability term. Oregon's statute reads: "Except as authorized [in other sections], it is unlawful for any person to manufacture or deliver a ... controlled substance within 1,000 feet of the real property comprising a public or private ... school.... (a) [A violation] is a Class A felony...." (41) In State v. Rutley, (42) the court cited and discussed Oregon's MPC-inspired statutes that define presumptions of culpability. (43) It quickly concluded that a culpability requirement must be implied into the offense, but it then focused on the mens rea provision that states, "[A] culpable mental state is not required if ... an offense ... clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or any material element thereof." (44) In a move common among courts in MPC states, the court then turned to traditional interpretive conventions--the ordinary meaning of language and statutory purpose. The language indicates strict liability because "the 1,000-foot distance is not logically or grammatically separated" from other components of the offense definition, and because the legislature's purpose is explicitly instrumental: "to protect children from drug use." (45) For these reasons, Rutley found clear indications for strict liability on the element of distance from the school.

Ohio provides a final variation of how an MPC state reaches the same conclusion. Subsection (A) of the Ohio offense defines the basic crime: "No person shall knowingly ... [s]ell or offer to sell a controlled substance." (46) Subsection (C) then specifies, without repeating "knowingly," the grade of the offense according to a range of factors--drug type, quantity, and proximity of the conduct to a school. (47) In interpreting this offense, the Ohio Court of Appeals in State v. Ward (48) reached the same strict-liability holding as the courts in Denby and Rutley. And it did so with only the barest acknowledgement of Ohio's version of the MPC culpability presumption, (49) which states that "[w]hen the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required." (50) Ward did not quote this provision; it merely cited it as authority for this odd assertion: "[T]he Ohio legislature has attached criminal liability to criminal conduct without the requirement of a culpable mental state." (51) Instead of describing "plain indications" to impose strict liability, the court offered three brief rationales for the holding: the school-proximity offense "does not criminalize otherwise innocent behavior," (52) additional punishment serves the statute's "purpose of protecting children in schools," (53) and those who sell drugs near schools even unknowingly "deserve proportionately greater punishment." (54) The last rationale is telling; it demonstrates a judicial conception of proportionate desert unconnected to an actor's culpability and determined entirely by a strict-liability circumstance element.

In Denby, Rutley, and Ward, state courts employed various interpretive strategies that avoid or undermine their state codes' MPC culpability presumptions. Those decisions may represent judicial misunderstanding of those presumptions or resistance to them. These courts, by different rationales, applied culpability presumptions narrowly to justify strict liability; they took from the codification of culpability presumptions little legislative disfavor of strict liability, even for offenses in which a legislative choice for strict liability was not express. Alternately (or additionally), the decisions may signal the limits of what the MPC's interpretive canons can be expected to achieve. General interpretive rules themselves require interpretation, and these join a body of established interpretive conventions that they do not fully displace. As a result, MPC-based interpretive rules provide courts with less determinative guidance than their legislative drafters might have expected. Every state's culpability presumption, like the MPC's, (55) provide for exceptions to the presumption if legislative intent "plainly appears" or is "clearly indicated." (56) Courts identify those occasions with the traditional tools of statutory interpretation. They infer legislative intent, as Rutley put it, from "indirect indicators" such as plain language, grammatical analysis, sentence and paragraph structure, legislative history, or presumed purpose. (57) One convention, such as plain meaning in Denby, may be sufficient to find a clearly indicated exception. But Rutley and Ward illustrate the use of one especially important convention that state courts very often cite, when interpreting many different statutes, to justify strict liability. That convention is for courts to draw a strong inference of strict liability from a statute's instrumental purpose to protect a particular victim class or prevent a specific harm, a purpose that courts commonly infer from a statute's text or legislative history. (58)

The Ohio Supreme Court has a notable record of finding strict-liability exceptions to the culpability presumption its legislature adopted in 1972. (59) In a 1981 case, State v. Wac, (60) the court interpreted Ohio's bookmaking offense, (61) which punishes individuals who "[e]ngage in bookmaking, or knowingly engage in conduct that facilitates bookmaking." (62) Mr. Wac was charged with engaging in bookmaking, and the state supreme court addressed whether the offense required proof of mens rea, in light of the state's presumption for a recklessness standard when an offense "does not specify any degree of culpability" and does not "plainly indicate[] a purpose to impose strict liability." (63) Wac found a plain indication for strict liability because no culpability term accompanies "engage in bookmaking," but one does accompany the subsequent phrase defining the facilitation offense. (64) This is odd, in part because bookmaking is defined as "the business of receiving or paying off bets." (65) It is hard to imagine one doing that conduct unknowingly, or--in recklessness terms--doing it while unaware of the risk one is receiving or paying bets. The legislature, rather than plainly indicating strict liability, probably sought to avoid redundancy: although one always receives or pays bets knowingly," one could easily facilitate another's bookmaking unknowingly, for instance by leasing property to another without knowing of his bookmaking activity.

Wac has become an oft-cited Ohio precedent for the rule that strict liability is "plainly indicated" when an offense includes a culpability term in one phrase of an offense but not in another phrase that specifies alternate conduct. (67) Ohio appellate courts commonly find further support for "plain" indications of strict liability in familiar instrumental rationales, such as whether strict liability facilitates a criminal statute's deterrence purpose.

A recent strict-liability interpretation of Ohio's aggravated robbery offense makes the point. The offense is defined as theft, which expressly requires knowledge, along with another element. (68) In State v. Lester (69) the issue was whether "the element of brandishing, displaying, using, or indicating possession of a deadly weapon has a mens rea of recklessness, or whether strict liability is imposed with regard to that element." (70) The Ohio Supreme Court in Lester held that it did not. After considering the code's presumption of culpability in the absence of a mens rea term unless strict liability was "plainly indicated," Lester concluded the indication was plain enough, (71) although to do so the court failed to recognize that indicating possession and brandishing a weapon are verbs that imply intentional or knowing conduct as a matter of ordinary meaning. The court reasoned that the amendment of the offense to add the display and brandish terms does not establish "that the General Assembly intended to require a specific mental element" (72)--an analysis that Justice Lanzinger, concurring in the judgment only, argued displaced the requirement for plainly indicated strict liability with one requiring a plain indication for intent. (73) The majority's support cited previous strict-liability decisions including Wac, (74) as well as common rationales used to infer strict liability. Lester invoked the instrumental rationale that the "risk of harm increases" from the conduct regardless of whether it is done knowingly. (75) And, reflecting a common judicial rejection of the idea that culpability is linked proportionally to liability, the court noted that the "brandishing" element does not serve to distinguish innocent from culpable conduct, so "it is reasonable that the General Assembly would impose strict liability on the additional [element] that enhances the seriousness of the criminal activity." (76) The Ohio Supreme Court employed the same reasons more recently to affirm a strict-liability application of another clause in the same statute. (77) And one finds the same reliance on instrumental aims of protecting victims or reducing harm in other states' strict-liability interpretations, despite MPC-inspired culpability presumptions. (78)

C. Limits on Culpability Presumptions (Part Two): Restrictive Application and Non-Acknowledgement

Another set of strategies that facilitates strict liability despite MPC culpability presumptions merits note. One version occurred when the Ohio Court of Appeals, in Ward, paraphrased the MPC presumption with the proposition that the "legislature has attached criminal liability to criminal conduct without the requirement of a culpable mental state." (79) Sometimes courts mischaracterize, or perhaps misunderstand, mental-state presumptions in their state codes. But some courts simply ignore them. A Texas appellate decision, Massey v. State, (80) provides a stark example of the latter tactic. In resolving the question of whether a sexual assault offense includes a mental-state requirement for the victim's age element, which triggers a grade and sentence enhancement, the court made no reference at all to the Texas statutes that codify mens rea rules based on the MPC. (81) Instead, it cited only a more attenuated authority from a jurisdiction without MPC presumptions--a U.S. Supreme Court decision interpreting a federal pornography offense--for the principle that "[a]n additional allegation of culpable mental state is not required for such an aggravating element." (82) Massey is not singular in this respect. (83)

Additionally, courts find more forceful ways to narrowly interpret culpability presumptions than in Denby, (84) in which the court's inference of clear legislative intent for strict liability did all of the work. (85) Some courts define offense components with labels that make the presumptions inapplicable. This was the Illinois court's tactic to reach the same strict-liability holding as Denby, Rutley, and Ward for the Illinois school-zone element of the drug offense. In People v. Pacheco, (86) the Illinois appellate court's analysis concluded that school proximity was not an element of the offense. It was instead "only an enhancing factor used to elevate the level of the felony to a Class 1 felony," (87) and the state code's interpretive presumptions speak only to culpability requirements "with respect to each element described by the statute defining the offense." (88) The court embraced this approach more recently for another offense. In People v. Stanley, (89) the statute read: "A person who possesses any firearm upon which any such importer's or manufacturer's serial number has been changed, altered, removed or obliterated commits a Class 3 felony." (90) Stanley's strained interpretation "discern[ed] that the elements of this offense are properly [1] the mens rea and [2] the possession.... Though the defacement unmistakably bears upon the commission of the offense, it is not an element of the offense." (91) Although an "enhancing factor" is not used or defined in the Illinois penal code, this distinction between factors and elements, which limits culpability requirements to elements, has persisted. (92) And it has done so despite the Illinois Supreme Court's earlier holding that a fact that raised theft from a misdemeanor to a felony is an element of that offense, with the result that the government must prove that element at trial rather than merely address it in a sentencing hearing. (93)

D. Counterexamples: Taking Culpability Presumptions Seriously

Not every state court adopts rationales to avoid legislative codification of culpability presumptions. Some courts take the enactment of these provisions as indicating legislative preference for mental-state requirements, and they apply them even with respect to statutes whose language, structure, or implied purpose would support strict-liability holdings in other jurisdictions and under non-MPC interpretive conventions. Despite its strict-liability decision in Rutley on the school-zone drug offense, the Oregon Supreme Court earlier in State v. Blanton (94) relied on presumptions in its state code to establish a culpability requirement to an age element in another drug offense. (95) Moreover, it did so when the culpability term "knowingly" appeared in the statute's first subsection and the minor's age element was placed in the fourth, (96) a structure that could be read to indicate strict liability. The separate age-element section increased the felony grade of the offense, but unlike Illinois and Ohio courts, Blanton inferred no distinction for "non-elements" or "enhancing factors." (97) Its reasoning relied entirely on Oregon's MPC-based statute, in which a "prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state." (98) Blanton found that the italicized clause (a revision of the MPC adopted by several states) to be "confusing" but concluded that culpability was "necessarily require[d]" for all elements save those for "jurisdiction, venue and the like" (99)--a reading that strengthens the provision's presumption for mental-state requirements. Instead of emphasizing an instrumental protective purpose from the offense definition, Blanton emphasized the legislative intent of the MPC-based culpability presumption, which it read as displacing the common-law canon actus non facit reum nisi mens sit rea. "A policy against criminal liability without fault need not go so far as to protect a culpable defendant from an unanticipated extent of liability," the court reasoned, but "the policy adopted by the legislature is to require a culpable mental state with respect to each element in the definition of an offense." (100) Much more recently, the Oregon appellate court read another youth-endangerment drug crime the same way. (101) A few other states had done so in the pre-MPC era. (102)

One MPC jurisdiction did the same even with its school-zone drug offense. Missouri codifies the school-zone element in a separate section from the basic drug offense and lacks an express culpability term:
   A person commits the offense [as prohibited in another section] of
   distribution of a controlled substance near schools if such person
   violates section 195.211 by unlawfully distributing or delivering
   any controlled substance to a person in or on, or within two
   thousand feet of, the real property comprising a public or private
   elementary or secondary school, public vocational school, or a
   public or private community college, college or university or on
   any school bus. (103)

The Missouri Court of Appeals in State v. White (104) found the mens rea question settled by the state's MPC-based statute that directs, "[I]f the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly." (105) That command, the court held, meant the state must prove a defendant's mental state as to the school-zone element. (106) It continued, "[I]n order for a defendant to be found guilty ..., he must have acted purposely or knowingly. A person acts 'knowingly' ... when, concerning his conduct or attendant circumstances, he is aware of the nature of his conduct or that those circumstances exist." (107) The legislature's placement of the basic offense and school-zone enhancement in separate sections did not affect the court's mens rea analysis. Neither did the statute's purpose to protect youth from drug markets, nor did the culpability provision's failure to specify that implicit mental-state requirements apply to all elements just as explicit ones do. Missouri's interpretation, however, is a singular outlier for these school-zone drug statutes. (108) Apparently no other state, MPC or non-MPC, has interpreted a similar drug offense to require proof of mens rea as to school proximity. (109)

More broadly, Oregon and Missouri are outliers in the degree to which MPC presumptions lead them to avoid strict-liability holdings. (110) Despite a few strong applications of MPC culpability rules elsewhere, (111) state court interpretations of mental-state requirements under MPC rules mostly go the other way. Two primary impressions emerge from this survey of case law in MPC states. One is that, as an analytical matter, legislative specifications of culpability presumptions have not simplified statutory construction by displacing judicial use of other interpretive canons on mens rea questions. The second conclusion is more substantive: MPC-inspired statutory presumptions have proven to be weak mechanisms for shifting courts away from inferring strict liability in criminal offenses, even for elements that are the sole basis for increasing the felony offense grade and punishment severity.

E. Reasons for the Weak Effect of Culpability Presumptions

1. Legislative Drafting. Before taking a closer look at state MPC-based statutes for more explanations of this trend, there are a couple of reasons for the modest effect--or in some settings the failure--of the MPC culpability provisions. One is a product of legislative choice: state legislatures commonly have failed to follow MPC drafting conventions for crime definitions in the wake of adopting MPC general provisions on culpability in their codes. As a result, state offense definitions often are less clear than the MPC as to whether mental-state requirements apply to certain elements, especially those in separate subsections. (112) Poor drafting makes a state's culpability provisions harder to apply; (113) courts are less confident that exceptions will be truly explicit, so they resort more readily to common-law interpretive canons in search of statutory meaning and set a lower bar for "plain" indications of strict liability. Furthermore, some MPC states, including Ohio and Illinois, did not adopt the MPC provision that specifies how culpability requirements apply to grading elements, (114) which may give their courts further basis to invoke a traditional convention that mens rea does not attach to an "aggravating element" or "enhancing factor." This convention may undermine the basic code provisions defining a presumption of mens tea in the absence of any such term.

The last point supports a broader observation: even MPC-influenced legislatures that enacted the primary culpability presumptions may be neither as fully committed to mens rea requirements for all offense elements as codification of those presumptions might suggest, nor as committed to that position as advocates of the correspondence principle and the MPC are. Even when a legislature adopts these key provisions from the MPC, it does so in the context of a preexisting body of interpretive law and substantive criminal law. (115) MPC adoptions often occur without accompanying codification of all supporting provisions in the MPC, such as the grading-elements provision. (116) Furthermore, a culpability presumption in a real-world setting may legitimately be understood to mean something different from the same provision in the MPC itself. One reason for the modest influence of MPC-based culpability presumptions in state codes, then, may be that their adoption, without further and continuing indications of legislative commitment to their motivating principles, is an insufficient signal of a state's commitment to the MPC's culpability premises, particularly the proportional link of punishment to individual fault. (117) These indications of a legislature's commitment to the strength of its own MPC presumptions draw additional support, as described more in the next Part, from many states' revisions of the MPC's formulation of the general-part culpability rules.

2. Judicial Role--Inferring Intent Versus Enforcing Prior Commitments. Conventions of statutory interpretation reflect a particular vision of how courts should defer to the democratic legitimacy of legislatures. Traditional canons mostly aim to help courts determine and facilitate legislative intent even when intent is not clear. That vision of legislative deference entails a weaker presumption in favor of culpability requirements than the MPC provisions do. (118) In deferring to legislatures, courts making every effort to determine a statute's intended meaning set a comparatively low bar for how clear a legislature's rejection of a mens rea presumption must be, because courts might be confident that they can determine intent even when it is not clear.

By contrast, codification of mens rea presumptions should strengthen an inference of culpability requirements in ambiguous statutes and lead courts to require greater drafting clarity before finding that legislators intended to reject that presumption in a particular code section--more clarity than courts were able to find in decisions like Denby, Rutley, or Ward when using traditional canons. The New Jersey statute is an example of the clarity courts could require to avoid the general presumption of mens rea. (119) By requiring greater clarity, courts' interpretive process should serve to discipline legislative drafting and thereby reduce ambiguity regarding legislative intent. Requiring greater clarity would also hold the legislature to its own prior, codified commitment for culpability requirements for all offense elements, unless clearly rejected in a particular instance. (120)

MPC-inspired mens rea rules, in short, shift the institutional role of courts in the statutory-interpretation process. Under such rules, courts defer to legislatures not by making all efforts to infer intended meaning from particular offense definitions but by adhering to the legislature's general presumption of mens rea for all elements, as well as holding the legislature itself to that presumption. As the MPC intended, this approach would simplify judicial interpretation and make statutory meaning clearer and more predictable. Explanations for why many courts have not embraced this role, as discussed in Part IV, include the normative appeal of the strict-liability outcomes reached through traditional interpretive canons and courts' tendencies to join (or inability to resist) the political trend of the last generation toward harsher criminal law. In some MPC states, however, a simpler explanation may share some credit: the next Part surveys the explicit choices that many MPC-inspired legislatures made to retain strict liability and weaken general presumptions for culpability requirements.
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Title Annotation:Introduction through I. Judicial Inference of Culpability and Strict Liability, p. 285-316
Author:Brown, Darryl K.
Publication:Duke Law Journal
Date:Nov 1, 2012
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