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Strict liability offenses, incarceration, and the Cruel and Unusual Punishments Clause.

I.   The Setting: Strict Liability and
II.  The Birth and Growth of Strict Liability
III. The Problems with Strict Liability
IV.  Strict Liability Offenses and the Cruel
     and Unusual Punishments Clause
     A. Challenges to Strict Liability Offenses
     B. Defenses Against Eighth Amendment
        1. The Prevalence of Strict Liability
           Criminal Laws
        2. The Need for Deterrence
V.   The Remedy for an Eighth Amendment
VI.  Conclusion


The romantic vision of the criminal justice system is one of a decisive courtroom battle between an aggressive but virtuous prosecutor matching wits against a benighted and indefatigable defense counsel vigorously representing his innocent client before a fair, wise, dedicated judge, who vigilantly protects the defendant's rights at trial. The reality, however, is quite different. Actors in today's criminal justice system tend to follow a mundane path. More trials can be seen each week on prime time television than actually take place in most courtrooms during the same period. Roughly ninety-five percent of all prosecutions today result in plea bargains (1) that are negotiated between professional adversaries oftentimes too swamped with cases to include their clients--defendants or the public, including crime victims--in the pre-plea decisionmaking process. (2) Equally busy judges trying to manage crushing caseloads wind up blessing those agreements after a perfunctory review of the facts, even when a defendant pleads guilty while claiming to be innocent. (3) The romantic vision of the process is uplifting; the reality is not. (4)

Criminal justice scholars disagree over where the blame should lie. Some argue that the criminal justice system has become overwhelmingly mechanized. (5) They criticize the system for its willingness to treat cases like widgets wending their way down an assembly line. The overriding concern is not to separate the guilty from the innocent; the assumption is that every defendant is guilty of something. Instead of providing a forum for the purpose of finding the facts or exhibiting a morality play, the criminal justice system cares only about what can enable the professional insiders most efficiently to process the thousands of cases that the system must handle with little, if any, concern for the dignity of the real people involved in the process, particularly defendants and victims.

Other scholars believe that the fundamental problem with the criminal justice system is substantive, not structural or procedural. (6) They see a criminal justice system that has been captured by an illegitimate partnership between prosecutors and legislators who tacitly conspire to generate an overwhelming growth in the size and severity of the penal code. Legislatures continuously churn out superfluous or redundant, but always onerous, new criminal laws that prosecutors then use to stack charges against defendants to coerce guilty pleas. Legislators euchre the public into believing that they have reduced crime, while prosecutors bludgeon defendants into cooperating with investigations of bigger fish by pleading guilty and clearing a case from the docket, regardless of the legitimacy or strength of a defendant's belief in his or her own innocence.

Perhaps both critics are right. The public does not seem to care who is right or what is wrong so long as it can remain ignorant of the actual goings-on of criminal practice and not too many innocent parties wind up convicted--or at least so long as not too many of them show up on the nightly television news. The result is the absence of any public pressure to change the rules of the road (the subject of criminal law) or to fix the potholes along the way (the subject of criminal procedure).

Strict liability offenses--defined as infractions, violations, or crimes that can be committed without any intent to break the law, any knowledge of what the law is, or even any negligence in learning what the law prohibits (7)--enable the criminal justice system to combine the worst of both worldviews. As a substantive matter, those offenses eliminate any consideration of a person's moral blameworthiness by dispensing with any issue of his or her knowledge or intent. The government need not prove that someone intended to make an illegal U-turn, only that he or she did. Eliminating proof of mens rea may be as effective at expanding the reach of the criminal law as adding to the stock of offenses already on the books. It may even be more effective if strict liability attaches to conduct that would not be considered inherently harmful, dangerous, or immoral. In that case, individuals could unwittingly break the law while all the time believing that they were law-abiding citizens. We know that we should not murder, rape, or pillage; we may not know whether the garbage we throw out is "hazardous waste." (8)

As a procedural matter, strict liability offenses make charges remarkably easy to prosecute. (9) Establishing at trial the actus reus element of an offense ordinarily takes less work than proving the relevant state of mind. (10) Videotapes of the offense, fingerprints, DNA, and eyewitness testimony all identify the culprit and place him at the scene of the crime. The more difficult question often is: What was he or she thinking? (11) The result of forgoing any concern for a defendant's state of mind is to encourage him or her to plead guilty in order to lessen the sentence. When the only dispute is over punishment, rational defendants will want to minimize the cost of doing business (or whatever else they are doing). Strict liability crimes truly make the criminal process more closely resemble a Turkish bazaar than an episode of Perry Mason.

One might assume that strict liability offenses are rarely found in the penal code and that the only penalty they carry is a fine. Yet strict liability offenses are not an uncommon occurrence in contemporary society. Consider just how often we run into this problem with our vehicles. Illegal or overtime parking, not signaling for a turn, not coming to a full stop, crossing the double line, not having a local tax sticker on the bumper or windshield--those and a host of other missteps can result in a monetary fine. Everyone has committed one or more of those violations at one time or another and has had to fork over whatever penalty a local ordinance requires. Because everyone has committed those infractions, no one sees them as the mark of Cain, and no one gets seriously upset about a law requiring parties to pay a fine. We accept those fines as a user fee or a tax that falls on someone engaged in a particular activity that (presumably) goes into a fund that underwrites the cost of one or more public services that everyone would otherwise be forced to subsidize with income taxes. (12)

But what if committing a strict liability offense could land someone in prison? Society might have a very different reaction. The public might find that such an unduly severe punishment does not fit the crime, that imprisonment should be reserved for "real" criminals--dangerous and morally blameworthy parties who intended to flout the law--not for people who unwittingly cross the line between lawful and illegal conduct without injuring or endangering someone else. Given the large number of federal and state prisoners confined today, (13) the public also might conclude that whatever trial efficiencies are gained by using strict liability crimes is more than offset by the expenses of incarcerating morally blameless parties, let alone the costs to them, their families, and their neighborhoods from tarring them with the label "ex-con." (14)

People who have that reaction would find themselves in good company. Anglo-American common law traditionally has required the combination of both an evil act and an evil intent for conduct to be made a crime. "Actus non facit reum nisi mens sit rea" (15)--a crime consists of "a vicious will" and "an unlawful act consequent upon such vicious will." (16) The criminal law historically has required the government to prove that a person acted with what everyday language would term the intent to break the law or knowledge of wrongdoing. (17) Only then would conduct merit criminal punishment. In Oliver Wendell Holmes's famous aphorism, "even a dog distinguishes between being stumbled over and being kicked." (18) Strict liability offenses, however, come from a different mold. If you commit a forbidden act, you are guilty, even if you intended to walk the straight and narrow and even if what you did was harmless and you are not likely to repeat that infraction. All that matters is that you crossed a line; now you must pay. "Go directly to jail. Do not pass 'Go.' Do not collect $200." (19)

However reasonable that result may be when a guilty party pays a fine, many, perhaps most, people would be likely to view imprisonment for a strict liability offense as quite troublesome. We have accepted strict liability offenses because society largely treats fines like taxes and, in the words of then-justice Holmes, "Taxes are what we pay for civilized society." (20) But society generally does--and should--distinguish between penalties that reduce your assets and ones that restrict your liberty, according the latter greater scrutiny. (21) That is appropriate here. Strict liability offenses may not be unconstitutional per se, but incarceration for committing such a crime should be. The burden of this paper is to explain why the courts should agree with that proposition.

Part II starts us toward that conclusion by explaining how strict liability offenses came to be part of the criminal law. Part III then argues why incarceration should be deemed an impermissible punishment for that category of crimes. Part IV.A. explains why the Eighth Amendment Cruel and Unusual Punishments Clause supplies a basis for challenging the incarceration of strict liability offenders. Part IV.B. addresses responses to the arguments advanced in Part IV.A. and explains why each defense of incarceration is unpersuasive. Part V discusses the appropriate remedy.


We ordinarily assume that tort liability rests on negligence, and, largely, it does. (22) Yet, strict liability is not an entirely novel feature of the law. Early tort law rendered a person liable for harming someone else or his or her property in order to keep the peace between individuals and their clans. (23) For centuries the common law adopted a rule approaching strict liability for trespass by livestock and certain abnormally dangerous activities, like setting fires. (24) Strict liability workers' compensation laws have been around for more than a century. (25) The rationale for that change has largely rested on increased humanitarian concern for the harms that industrialization can inflict on employees, consumers, and bystanders, as well as a decreased fear that expanding tort liability would retard economic growth. (26)

Since the advent of industrialization, legislators have become increasingly troubled by unsafe working conditions and products such as defectively manufactured automobiles, mislabeled pharmaceuticals, or unavoidably created toxic wastes that can generate new, manifold, severe, unforeseeable, and almost entirely unpreventable risks for the public. In response, legislators have sought to increase the pressure on businesses to produce less dangerous products in facilities that comply with health and safety rules. Believing that those concerns were of the utmost importance and concerned that nineteenth century tort law doctrines stood in the way of achieving them, (27) legislatures gradually decided to shift a greater amount of the burden of preventing injuries to businesses because they were deemed to be the party best able to avoid them. (28) Civil damages liability was a traditional mechanism for remedying injured parties and deterring dangerous conduct, so legislatures set about altering the rules of tort law. Legislatures adopted mandatory safety device requirements; (29) they abolished certain common law defenses, such as the fellow-servant rule; (30) and in some instances they even eliminated the requirement that an employee prove negligence on his or her employer's part to recover for an injury. (31) To be sure, negligence never completely went out of style. But as legislatures and courts began to tinker with the rules of tort liability, the law showed some signs of turning back toward its strict liability origins by placing an increasing burden on businesses to safeguard the public from harm.

Although society traditionally has distinguished between the civil and criminal laws, Progressive Era efforts to expand corporate civil liability gradually began to bleed over into the criminal law. Legislatures saw courts uphold the constitutionality of statutes that imposed new forms of tort liability, that modified many of the defenses that an employer or business could assert, or that imposed penalties for noncompliance that were paid to the government, not to injured parties as compensation. (32) Legislators listened when the courts said that legislatures may revise tort law rules because no one enjoys a property interest in the common law. (33) Legislatures therefore came to believe that they had the power to eliminate whatever common law rules stood in the way of public safety. They also began to see the criminal law as just another tool that they could use to prod businesses into promoting public safety objectives and to penalize them when they failed.

Legislators began to chip away at the mens rea doctrine. Beginning in the 1840s, Parliament, Congress, and state legislatures enacted laws that imposed strict criminal liability for violating assorted health and safety laws. Those assemblies enlarged the statute books, originally designed simply for demarking and punishing morally blameworthy behavior, through new legislation enlisted for the modern purpose of regulating business activities. Originally called "regulatory offenses" in England and "public welfare offenses" in this nation, these crimes initially were limited to the sale of impure or adulterated food and alcohol. But the list of strict liability offenses grew over time. In retrospect, the shift seems inevitable.

Early in the twentieth century, the list of strict liability offenses expanded to include building code offenses, traffic violations, and sundry other similar low-level infractions. (34) The process picked up speed in the first few decades of the twentieth century (35) and has grown apace since then to keep up with the growth in size and complexity of the administrative state. Today the corpus of regulatory offenses is considerably larger than anyone initially envisioned. (36) Environmental laws, for example, came on stream later in the twentieth century, and they can impose strict criminal liability. (37) The creation of regulatory agencies also added a new feature to the category of public welfare offenses: crimes defined by regulations. Nowadays, a strict liability crime can consist in the violation not merely of a federal statute, a state law, or a municipal ordinance, but also of an administrative rule. That has considerably increased the size of the problem. (38) Yet, regulations themselves also do not exhaust the number and type of administrative dictates that can define criminal liability. Agencies often construe their regulations in the course of applying them, and the interpretations that agencies give to their own rules receive a great degree of deference from the courts. (39) The result is the development of a body of agency "case law" that a person must know to be aware of the full extent of his or her potential criminal liability.

Just as the English and American courts upheld legislative revision of tort law, so too did they permit legislatures to dispense with any proof of mens rea as an element of a crime. Starting in the mid-nineteenth century, the courts began to shift their views about the importance of scienter as a means of limiting the reach of the criminal law and approved the use of strict liability crimes, at least for relatively minor offenses. (40) The Supreme Court joined in that chorus. Throughout the first half of the twentieth century the Court resolved several cases in which the defendant challenged the constitutionality of certain state and federal laws creating public welfare offenses. The principal decisions were Shevlin-Carpenter Co. v. Minnesota (41) United States v. Balint, (42) and United States v. Dotterweich. (43) Shevlin-Carpenter involved a trespass onto government land, while Balint and Dotterweich involved the sale or distribution of pharmaceuticals. In each case, the relevant statute made it a crime to commit the prohibited conduct without regard for the defendant's state of mind. In each case, the defendant argued that the statute violated the Due Process Clause because it did not require the government to prove, as an element of the offense, that the defendant acted with a "guilty mind." And in each case, the Supreme Court rejected that argument and declined to impose a mens rea requirement on the criminal law under the federal constitution. Despite the impressive pedigree that the mens rea doctrine had at common law, the Court's opinions surprisingly gave short shrift to the defendants' due process claims. (44)

The result is this: Regulatory criminal laws have become a settled feature of modern-day statutory codes, and they often impose criminal liability for a host of actions that historically would have been considered only civil infractions. Rather than use the administrative state to sanction regulatory violations only through penalties such as fines, debarment, or license revocation, legislatures have conscripted the criminal justice system-police officers, prosecutors, judges, and jailers--to regulate business by punishing as crimes a broad range of conduct not considered inherently evil, dangerous, or blameworthy. Strict liability, although a relatively recent addition, is no longer a complete oddity in the criminal law. It is just another tool in the toolkit. The result is that we have reached the point where it can be difficult to distinguish the substantive criminal law from tort law save for one distinguishing feature of the former: Only the criminal law is used to incarcerate offenders. (45)


Legal commentators have consistently denounced strict criminal liability on a variety of grounds. (46) Critics maintain that holding someone liable who did not flout the law cannot be justified on retributive, deterrent, incapacitative, or rehabilitative grounds. By dispensing with any proof that someone acted with an "evil" intent, strict liability ensnares otherwise law-abiding, morally blameless parties and subjects them to conviction, public obloquy, and punishment--that is, it brands as a "criminal" someone whom the community would not label as blameworthy. (47) By imposing liability for conduct that no reasonable person would have thought to be a crime, strict liability also denies an average person notice of what the law requires. The result is to violate a principal universally thought to be a necessary predicate before someone can be convicted of a crime (48) and to rob people of the belief, necessary for the law to earn respect, that they can avoid criminal punishment if they choose to comply with the law. (49) By making into criminals people who had no knowledge that their conduct was unlawful, strict liability violates the utilitarian justification for punishment, since a person who does not know that he is committing a crime will not change his behavior. (50) Lastly, strict criminal liability flips on its head the criminal law tenet that "[i]t is better that ten guilty per sons escape than that one innocent suffer." (51) Strict liability accomplishes that result because it sacrifices a morally blameless party for the sake of protecting society. (52) In sum, by punishing someone for unwittingly breaking the law, strict criminal liability statutes mistakenly use a legal doctrine fit only for the civil tort purpose of providing compensation as a mechanism for imposing criminal punishment. By so doing, they unjustifiably impose an unnecessary evil. (53) Strict liability for a criminal offense is, in a phrase, fundamentally unjust. (54)

Strict criminal liability's defenders--a category that includes the Supreme Court, by the way (55)--argue that it is necessary to use the criminal justice system to enforce regulatory programs and to have the strict liability doctrine available for that purpose. (56) In a modern industrial society, businesses will engage in various enterprises that are legitimate but inherently dangerous or potentially hazardous. (57) Those corporations are in a far better position than the public to prevent the harm that can result from, for example, the improper manufacture of drugs or disposal of hazardous waste, so it is reasonable to place on those businesses the burden of preventing injury to the public. (58) Criminal prosecution is a necessary weapon because society needs the additional deterrent effect of criminal sanctions in order to protect the citizenry. The risk of strict criminal liability will have that effect in two ways: It will dissuade a party who is not committed to scrupulous compliance with safety protocols from entering potentially dangerous lines of work, and it will ensure that anyone who does engage in such an activity steers clear of the line dividing lawful from unlawful conduct. (59) Moreover, anyone engaged in a highly regulated field or endeavor (60) or in an inherently dangerous activity (61) is likely to know that there are legal requirements defining safe and unsafe conduct so that it is reasonable to presume that everyone engaged in that line of work has knowledge of the law or to demand that they acquire it. (62) In addition, the number of violations is so great that requiring the government to prove some mens rea element, including mere negligence, would so tax the criminal justice system as to make it impossible for the criminal law to have the necessary deterrent effect. (63) Finally, strict liability powerfully signals society's intolerance for certain conduct by making irrelevant any issue other than whether the defendant committed it. (64) In sum, strict criminal liability is a legitimate and reasonable regulatory tool. While strict criminal liability imposes costs on society, it also has benefits, and in a democracy we permit legislatures to balance the costs and benefits that legislation imposes on the public. (65)

Debate over the philosophical question of whether the criminal justice system should use strict criminal liability will not come to rest any time soon, if ever. Part of the reason is that reasonable people can disagree over the issue of whether strict criminal liability materially advances the purposes of criminal punishment--retribution, deterrence, incapacitation, education, rehabilitation, and the like. (66) Part of the reason is that many of the judgments we make about what to define as a crime and how to punish what we have outlawed rest on moral judgments, not empirical analyses, and so cannot be resolved in a democracy by means other than majority vote. (67) And part of the reason is that the private participants in this debate, the public policymakers who seek to influence its course, and the government officials who must make the relevant decisions not only represent very different interests, but also approach the matter from very different perspectives. (68) There may be new facts and claims advanced in support of one position or another, the extant arguments may be sharpened through debate, and the weight given to the theoretical niceties and practicalities of the situation may vary over time, but the philosophical disagreement likely will continue because neither side will be able to oust the other from the field of battle.

The Supreme Court is not likely to squelch that debate for all time by ruling that the Constitution prohibits any use of strict criminal liability on the ground that it does not serve a legitimate purpose of the criminal law. The Court has left to the political process the judgment as to what is necessary to safeguard the public and has displayed considerable deference to whatever judgments legislatures make. (69) To be sure, the Court has been reluctant to interpret federal criminal statutes as imposing strict liability unless no other reading is possible and therefore has construed various laws to require mens rea elements that reflect the need for proof of culpability. (70) Some criminal statutes, however, cannot be read in that manner. When that is the case, the Court has upheld strict liability criminal statutes over due process challenges in a number of instances over the last seventy years without suggesting that those laws were arbitrary exercises of legislative power. (71) It would be a big step for the Court now to conclude that those precedents were not merely wrongly decided, but were way off the mark. That would entail deciding, for example, that strict liability makes no measurable contribution to deterrence, a proposition that would be difficult to defend when put that starkly. (72) Throughout the period in which it has approved strict liability, the Court also has consistently made it clear that issues such as the effectiveness of particular sanctions are ones best left to legislatures initially and the public ultimately to resolve through the democratic process. (73) Accordingly, there is little to no likelihood that the Court would condemn strict liability offenses on much the same grounds that philosophers have offered in their critiques.

But the question whether strict liability offenses provide adequate notice of prohibited conduct is different in kind from the issue of the jurisprudential legitimacy of this particular legal tool. Just as the Court almost entirely has left to legislatures the decision whether particular criminal laws make a material contribution to a legitimate purpose of the criminal law, so too the Court has consistently held that, whenever the government makes that decision and enacts a new statute, the legislature must identify clearly whatever conduct it places out of bounds and will punish through the criminal justice system. (74) The source of that notice requirement is the Due Process Clause, (75) and two related doctrines enforce its command. The "void-for-vagueness doctrine" requires criminal statutes to define criminal conduct with sufficient clarity so that an average person without legal training can readily understand them. (76) The "unforeseeable expansion doctrine" prohibits courts from interpreting a criminal statute in a manner that results in an unforeseeable expansion of what the law makes a crime. (77) The Supreme Court has scrutinized criminal statutes under one doctrine or the other for a century. Deciding whether a criminal law affords the public adequate notice therefore is not an academic exercise; it is everyday fare for the Supreme Court. (78)

The criticism that strict liability offenses provide inadequate notice of criminal conduct is a particularly cogent one today. Use of the criminal justice system to enforce federal regulatory programs is heavily freighted with problems that do not arise when the only penalties at stake are administrative or civil. In fact, many of the features that make the administrative process a desirable, and sometimes necessary, means for implementing acts of Congress render inappropriate use of the criminal process as an enforcement mechanism. For example, Congress may use a broadly defined term (for example, "solid waste") (79) in a statute (for example, the Resource Conservation and Recovery Act) (80) that delegates to an agency (for example, the EPA) the power to implement that law by elaborating or refining the definition of a term (for example, "hazardous waste"), (81) by creating a list of specific examples of what that term means (for example, "listed hazardous wastes"), (82) or by specifying exemptions from the term (for example, "recyclable materials"). (83) By legislating in that fashion, Congress can grant the executive branch considerable regulatory flexibility. An agency can adapt existing regulations or promulgate new ones whenever necessary to address worsening or newly emerging hazards without having to return to Congress for specific supplemental regulatory authorization. That practice also enables the agency to invoke its superior technical and scientific expertise regarding a particular substance, production process, or medical risk whenever a new problem pops up or an old one takes a turn for the worse. Broadly written regulatory statutes granting administrative agencies room to maneuver are valuable because society wants agencies to be able to respond quickly (for instance) to serious health threats by revising the rules necessary to forestall or remedy a problem.

At the same time, the freedom to respond quickly can place individuals at risk of criminal punishment for guessing mistakenly about what the law requires because regulatory developments can outpace their knowledge of the law. Historically, mens rea requirements have mediated between the need for flexibility and the duty to notify the public what the law forbids by limiting criminal liability to someone who intentionally violates a known legal duty or commits easily recognizable blameworthy conduct. Strict liability offenses eliminate that protection, however, leaving it to prosecutors to decide who is and is not a proper subject of conviction, a proposition that should be anathema to anyone committed to the principle that ours is "a government of laws, and not of men." (84)

To some extent, the notice-and-comment requirements of the Administrative Procedure Act (85) have the potential to reduce this risk, because an agency must afford the public notice of a proposed rule before promulgating any new regulation. But that requirement likely will not benefit every private party equally. The average person reads the local newspaper, not the Federal Register. Of course, large corporations have in-house staff or lawyers on retainer devoted to the task of staying on top of agency developments. Personnel at small companies, however, cannot specialize in regulatory programs because they must play multiple roles. And most individuals lack even the remote familiarity with the law that someone can pick up just by working daily in a particular field. The average person does not have those opportunities. He or she learns what the law forbids from family members, church, school, and (albeit often mistakenly) popular culture. Said differently, the average person learns the law from other average persons, not from individuals educated, trained, and experienced in what a technical regulatory scheme forbids.

Society has been willing to accept broad prosecutorial charging discretion because the criminal law has served as a vehicle for enforcing the moral code for most of Anglo-American legal history. (86) In England, the Norman kings adopted a centralized criminal justice system to solidify their control of the countryside by creating an alternative to the decentralized interclan retaliation and warfare stemming from crimes such as murder and theft. (87) The penal laws merely carried forward the moral code that had served as the simple, universally understood basis for ordering pre-Norman English society. The crimes defined at common law and their modern-day counterparts all involve conduct that can ruin the person or property of others and is universally seen as immoral. Moreover, the common law reasonably assumed that everyone knew what a crime was (88) because the law was patterned on the well settled, widely accepted contemporary moral code. (89) As long as that proposition was true, there was little risk of convicting a morally blameless individual. Unfortunately, however, that assumption no longer is true, as the existence of strict liability offenses proves. The upshot is that strict liability crimes pose a considerable risk that the criminal law will be misused. (90)

To start with, there are too many laws today that expose someone to criminal liability for the average person to know them all. Some commentators have estimated that there are more than 4450 federal criminal statutes and more than 300,000 federal regulations that define conduct as criminal or otherwise bear on the proper interpretation of the laws that do. (91) No one--no lawyer, judge, or law professor--has that knowledge. As the distinguished academic and late Harvard Law School professor William Stuntz put it: "Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn't criminal in their jurisdictions." (92) Permitting the government to rest criminal liability on the fiction that the average person is conversant with the ins and outs of federal regulatory statutes, let alone the thousands of potentially relevant regulations, borders on the obscene. (93)

Administrative regimes do not necessarily correspond to ethical codes. (94) Regulatory laws deal with the actual or potentially injurious sequelae of industrialization regardless of whether the risks are ones that the average person would know from his or her common experience. In fact, it may well be that only experienced subject matter experts know the most serious risks. Congress establishes administrative programs because it has identified an important social or economic subject in need of regular supervision (for example, pharmaceuticals). To monitor that conduct, Congress creates an administrative agency (for example, the Food and Drug Administration), authorizes the agency to hire expert staff (for example, biochemists), directs it to monitor and govern that field and its participants (for example, manufacturers), and empowers the agency to deal with old or new problems through moral suasion, legal rules, or enforcement actions (for example, press releases, regulations, seizure of adulterated drugs). But the highly scientific or technical nature of the subjects involved, as well as the evidence that must be considered in deciding whether regulation is necessary and appropriate, demands a level of education and training far above what the ordinary person possesses. It is reasonable to expect that the average person knows not to murder, rape, rob, or swindle someone else. It is unreasonable to assume that that average person has the same legal knowledge as an attorney, let alone that he has as much scientific expertise as an agency official with a doctorate in biochemistry.

That knowledge differential becomes particularly acute when lawmakers seek to deal with scientific or technical issues through the criminal law. Congress may use expansive language in a regulatory statute in order to delegate broad implementing authority to an agency so that it has the flexibility to respond to ongoing advances in medical knowledge. To ensure that the regulated community knows exactly what is forbidden and demanded, the agency in turn frequently uses technical or scientific terminology in its implementing regulations. It may take a team of lawyers and scientists to understand exactly what those regulations mean and precisely how to comply with them. That burden may not be onerous for a Fortune 100 company that has ample resources to retain attorneys and technicians for advice-giving purposes, but the difficulty of finding and understanding the relevant regulations can unfairly tax a small firm or the average person. In many cases it may be too much to expect that a reasonable person would be able to comprehend exactly what is and is not a crime.

This creates a serious problem in criminal law. Penal code statutes that cannot be understood without consulting an attorney are traps for anyone who cannot afford legal advice before acting, a category that includes the vast majority of the public. Unduly complex criminal laws also violate the elementary constitutional law principle that the government must afford everyone notice of what the law forbids. (95) "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." (96) Note the significance of who must be able to understand the criminal law: "a person of ordinary intelligence"--not a lawyer or biochemist of ordinary intelligence. Strict liability criminal laws governing complex scientific fields make it difficult to meet that notice standard.

Indeed, it is fair to say that many regulatory statutes are categorically different from criminal laws. The latter altogether forbid identified types of actually or potentially harmful or dangerous conduct, while the former allow certain types of such conduct to occur in limited amounts, at particular times, or by certain parties. The environmental laws, for example, allow manufacturers to discharge certain pollutants into the air, water, or land so long as a responsible party has a permit for that activity and does not exceed the maximum authorized amount each period. (97) By contrast, no one can obtain a permit to commit a bank robbery, and there is no maximum number of burglaries that a person can commit during a calendar year. If pollution is unavoidable and generating X amount of it can be and is expressly permitted, we cannot persuasively argue that pollution is as morally wrong as murder, rape, or robbery and that the criminal law must treat each harm as seriously as it treats these. Moreover, given that generating X amount of pollution is lawful, it is difficult to argue that X + Y always and everywhere is clearly wrongful, particularly when Y is small, when it is unduly onerous (or expensive) to identify precisely the exact difference between those two outputs (and their effect), or when it is equally difficult to know exactly when someone crosses the line between them. The result is that the average person would not necessarily know that the actus reus-or "guilty act"-element of a regulatory offense is a crime. If you also consider that the subject matter being regulated is one requiring specialized scientific or technical knowledge in order to understand the process at issue or the difference between outputs X and X + Y, the likelihood could approach a certainty that eliminating a mens rea element would result in the conviction of a morally innocent party. (98)

The environmental laws are a prime example of the problems that strict liability criminal statutes generate. (99) Pollution is unavoidable in an industrial society. (100) Trying to return America's twenty-first century economy to a pre-industrial Revolution state would be like trying to disinvent the wheel. Even if it were possible, no one seriously urges that we pursue that goal. That proposition is an important one in this context. It supplies the background against which to determine whether environmental offenses are the same as common law crimes.

Congress has enacted numerous statutes in the last forty years to protect public health and the environment from being degraded or destroyed by pollution of the air, water, and land. The challenge of identifying environmentally damaging products or activities is more than Congress itself can handle, however, so Congress has enlisted the aid of executive branch components such as the Environmental Protection Agency. (101) The EPA, in turn, has promulgated thousands of implementing regulations. To take advantage of agency expertise, Congress has granted the EPA power to investigate companies for violating the environmental laws. Congress ordinarily empowers federal agencies to impose administrative penalties or seek civil relief in federal court for environmental infractions, but those are not the only weapons available to the executive branch. Many federal environmental statutes authorize criminal punishment for violations. (102) Congress created a criminal investigation program at the EPA to investigate federal environmental crimes: the Office of Criminal Enforcement, Forensics, and Training. (103) The mission of the Environmental Crimes Section of the Justice Department's Environment and Natural Resources Division is to insure that environmental crimes are prosecuted. (104) The federal government apparently is as committed to the investigation and prosecution of federal environmental violations as it is to classic federal crimes such as mail fraud or bank robbery. (105)

The environmental laws, however, do not follow the classic criminal law model. (106) Unlike common law crimes, which focus on the here-and-now harms that individuals can inflict on each other, environmental laws seek to protect entire communities against the dangerous short- and long-term hazards of industrialization. Those laws also do not target only conduct that anyone would know is criminal. "Early instances of criminal environmental enforcement focused on 'midnight dumpers,' but today's federal, state, and even local officials devote even more time and resources to the criminal prosecution of individuals and companies that run afoul of complex regulatory requirements." (107) Environmental laws also differ in their treatment of scienter. Some federal criminal environmental statutes require proof of the same "wicked" state of mind demanded by common law crimes, (108) but most can lead to a conviction if a person merely knew what he was doing, even if he did not know that it was illegal or wrongful. (109)

Proof that someone intended to flout the law may be unnecessary when the conduct itself is obviously and intentionally physically harmful or morally abusive. The same is not true for many strict liability crimes. Recordkeeping requirements, for example, may help regulatory officials keep track of the products that manufacturers purchase, use, create, or transport, but it is difficult to deem technical paperwork violations as heinous.

It is no argument that a person always can consult with a lawyer in order to know where the line falls between legal and illegal conduct. The Due Process Clause takes as a given the proposition that legal advice, though potentially valuable, is never a prerequisite to avoiding criminal liability. The Constitution places on the government the burden to guarantee that the average person can understand the criminal code. The Supreme Court has repeatedly made it clear, in cases involving challenges to criminal statutes on the ground that they are "void for vagueness," that the standard all criminal laws must pass is whether a person of "ordinary" or "common" intelligence can readily understand what has been made a crime. (110) That standard leaves no room for an obligation to consult with a lawyer before a person can make a decision. That may explain why the Court has never suggested that the government can avoid its obligation to enact readily understandable criminal laws by demanding that a member of the public obtain legal advice or take the risk of breaking the law.

Nor is it a defense that prosecutors can be trusted to charge only parties who defied the law. "It is inevitable that some U.S. Attorneys or Justice Department Divisions will pursue a case that the Attorney General never would prosecute. Some targets will prove just too tempting for a prosecutor to pass up." (111) Moreover, our system rests on the principle that the law should protect individuals against the risk of arbitrary or mistaken judgment by government officials. As noted elsewhere:
   One of the virtues of our system is that no one has to rely on
   the judgment of a benevolent king or fear the wrath of a malevolent
   one. Marbury made clear that it is the function of the
   written law to protect us against the mistakes of the former
   and the wickedness of the latter. (112)

Henry Hart said it well when he wrote that the notion that a person must rely for his freedom on the discretion of a prosecutor, rather than the clarity of the law, is "immoral." (113)

There are, of course, remedies for those problems. One would be to require the government to prove that a person acted "willfully"--that is, with the intent to violate a known legal duty. (114) Another remedy would be to recognize a mistake of law defense. That defense would exonerate a defendant if no reasonable person would have thought that the charged conduct was a crime and if the defendant himself did not know that those actions were illegal. (115) Either option would limit criminal liability to parties who seek to flout the law, thereby exculpating someone who made an erroneous but reasonable judgment as to what the law permits. (116) Of course, those remedies would do more than salve a wound; they would eliminate the disease entirely. (117) Eliminating strict liability from the criminal law may be a sound policy, and that may be the ideal course in some cases, (118) but reading the Due Process Clause always to require one remedy or the other would effectively foreclose any use of strict liability crimes regardless of the benefits to regulatory enforcement that such offenses might offer.

Banking on the Supreme Court to jettison strict criminal liability, however, is risky. The Court has shown its willingness to reconsider and overrule precedents that are superseded by intervening decisions, reflect an outdated societal consensus, or sometimes were just wrongly decided. (119) But the Court may not be willing to do so here. After all, the Due Process Clause is an odd place to look for a limitation on the legislature's lawmaking power, especially in the area of criminal law. The text of the clause does not limit a legislature's power to define a crime. In fact, with the exception of treason, (120) the Constitution does not define or regulate the elements of any criminal offense. The history of the clause reveals that the Framers' principal concern (some would say exclusive) was to prevent the executive, not Congress, from acting arbitrarily. (121) Finally, the text of the clause is exceptionally vague, so vague that courts and commentators have read into it everything from a restriction on the government's ability to detain alleged enemy combatants to a right to an abortion. (122) True, the Court has held that the Due Process Clause prohibits the government from acting in a wholly arbitrary manner (123) and includes a substantive limitation of legislation affecting the areas of "marriage, family, procreation, and the right to bodily integrity." (124) But the Court also has been reluctant to use the clause as an all-purpose backstop for constitutional doctrines that have a home elsewhere in that document and that are better resolved by considering one of the Constitution's more specific provisions. (125) Given its precedents, it is doubtful that the Court would make an exception in this context and flatly outlaw any and all use of strict criminal liability, however persuasive the Court might have found the argument against strict criminal liability to be if it had arisen for the first time today.

The Due Process Clause, however, does not stand alone. As just noted, the Court has expressed a willingness to consider arguments based on other, more specific constitutional provisions. The question, then, is whether there is such a different, specific provision restricting a legislature's authority over the use of criminal punishment in the criminal law. It turns out that there is.
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Title Annotation:I. The Setting: Strict Liability and Incarceration through III. The Problems with Strict Liability Offenses, p. 1065-1101
Author:Larkin, Paul J., Jr.
Publication:Harvard Journal of Law & Public Policy
Date:Jun 22, 2014
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