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The dilemma of mental state in federal regulatory crimes: the environmental example.

I. Introduction

Federal courts have encountered difficulties in interpreting the mental state requirements of many environmental and other regulatory crime statutes.(2) Although the statutes often make it clear that the prosecutor must prove some "knowledge" on the part of the defendant, courts have been unable to agree about what, precisely, the defendant had to "know."(3) Recourse to legislative history and Supreme Court precedent(4) has not aided in resolving the dilemma, and commentators are just as confused about the issue as the courts.(5) However, as the use of regulatory criminal enforcement continues to grow exponentially,(6) it is becoming more essential to solve the problem of mental state requirements.(7)

The promise of this Article is that the current confusion about mental state results from the lack of a coherent jurisprudential framework for federal regulatory crimes. As the cases reviewed below indicate,(8) Since the middle of this century, the Supreme Court has increasingly interpreted regulatory crimes by reference to the traditional common-law notion of mens rea,(9) which it treats as a normative concept.(10) However, the Court's approach has had limited success in resolving the problem of mental state. Lower courts often fail to use the Supreme Court's approach,(11) and the approach itself is not yet well suited to answering some of the thorny questions that regulatory crime statutes present.(12)

This Article explores the issues first, in Part II, by using two environmental crimes statutes as examples of the types of mental-state problems that may arise. Part III describes the development of the Court's normative approach and places that approach in the context of traditional common law jurisprudence. The analysis concludes that some regulatory crimes are merely an application of traditional " specific intent" principles; others, which the Court terms "public welfare offenses,"(13) are best seen as modem versions of "general intent" crimes. Applying this expanded understanding to three environmental crimes statutes, Part IV reveals that current case law does not adequately take the Court's analytical paradigm into account. In addition, difficulties still exist with the Court's approach itself. While the approach resolves some problems, it has failed to give adequate attention to others: statutes regulating different types of activities; mistakes about the existence of permission; and application to statutes drafted from a "descriptive"(14) point of view. Some of these problems reveal possible disagreements between the Court's approach and the intent of Congress, and thus Part V of the Article addresses the issue of whether, and under what circumstances, the Court has the power to insert its interpretation into regulatory crime statutes.

II. Illustration of the Problem: RCRA and the MBTA

A. The Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA)(15) is an environmental protection statute that regulates the creation, storage, transportation, and disposal of hazardous waste.(16) Specifically, it identifies wastes as hazardous; requires written documentation of all waste shipments; and provides "certification, through a permit system, that performance standards for safe treatment, storage, and disposal are being met."(17) Section 3008(d) sets out the general criminal enforcement provisions of RCRA(18) in numerous subsections.(19) All require the government to prove that the defendant acted "knowingly." Two of these subsections--(d)(1) and (d)(2)(20)--have generated a great deal of litigation concerning just what knowledge the prosecution must prove.

In general, courts agree that the prosecution must prove the defendant's knowledge of two facts. First, the defendant had to be aware of engaging in the physical activity of handling a substance in the described manner.(21) Second, the defendant had to know the contents of the substance being handled(22) or the fact that the substance was "hazardous waste" in the colloquial, or nonlegal, sense of the term.(23) Most Courts also agree that the prosecution is not required to prove the defendant's awareness of the law, including the permit requirement.(24) Finally, there is consensus that the government must prove knowledge of the fact of permit status when it prosecutes under section 6928(d)(1),(25) and this interpretation also seems to apply to subsection (d)(2)(b) prosecutions.(26)

The fighting issue is whether the government, when it prosecutes under subsection (d)(2)(a), must prove knowledge that the facility in fact lacked a permit. The Third Circuit, for example, has held that the government must prove this; it based its conclusion on ambiguous statutory language, logic, and fairness.(27) In contrast, the Ninth Circuit concluded that statutory language, logic, and fairness reject such a knowledge requirement.(28)

It is a challenge to determine which of these approaches is correct. Both circuits use some combination of precedent, legislative history, logic, and statutory interpretation; however, in reaching opposite conclusions they place emphasis and priority on different aspects. Additionally, neither court discussed the broad sweep of Supreme Court precedent in regulatory crimes or offered a general jurisprudential context for resolving the tensions.

B. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA)(29) represents another example of the problems encountered in determining the mental state requirements of federal regulatory crimes. The MBTA prohibits a broad range of activities affecting migratory birds(30) but allows the National Fish & Wildlife Service to permit some of these activities under specific circumstances.(31) Section 707 under title 16 of the United States Code sets forth the criminal penalties under the MBTA: It is a felony to sell, barter, or offer protected birds or items or to take birds "by any manner whatsoever" with an intent to do so; a felon can receive up to two years in prison and a $2000 fine.(32) Any other violation is a misdemeanor with a maximum sentence of six months in prison and a $500 fine.(33)

As originally enacted, neither the substantive nor the penalty provisions of the Act contained words denoting a mental state requirement.(34) Consequently, the mental state requirement of the statute remained ambiguous, a problem reflected in a large number of opinions discussing prosecutions under section 703 and its accompanying regulations.(35)

These mental state cases arose in three contexts. First were cases in which the defendants had hunted in areas where someone had spread grain or decoys to bait the birds.(36) Second were the agriculture cases. In most of these cases, the defendant was a worker responsible for putting pesticide in fields in which migratory birds fed;(37) the birds were considered "taken" because they died from eating the pesticide.(38) Finally, there were cases in which the defendant sold bird parts or possessed bird parts for sale.(39)

These MBTA cases approached the mental state issue differently from the RCRA cases discussed in the previous section. RCRA contained the term "knowingly"(40) so it Was logical to ask what the defendant had to "know." Since the MBTA had no mental state words,(41) the courts asked whether the prosecutor had to prove scienter,(42) which most defined as awareness of whatever fact made it unlawful to "take" a bird.(43) However, the courts disagreed on whether the MBTA required scienter. A small group of courts(44) and judges(45) read a scienter requirement into the MBTA, but most courts did not.(46) Some of these courts that found no scienter requirement addressed the constitutionality of such a statute, and most upheld it.(47) However, one circuit court opinion--United States v. Wulff--found the MBTA to be unconstitutional absent a scienter requirement.(48)

Reacting to the Wulff opinion, in 1986 Congress amended the felony provision of the statute to include the mental state "knowingly"(49) thereby intending to add a "scienter" requirement to the Act.(50) According to the Senate report, the amendment would require the prosecution to prove "that the defendant knew (1) that his actions constituted a taking, sale, barter, or offer to sell or barter, as the case may be, and (2) that the item so taken, sold, or bartered was a bird or a portion thereof"(51) However, Congress did not mean to require proof of the defendant's knowledge that his actions violated the subchapter or "that the particular bird was listed in the various international treaties implemented by this act."(52) The Senate report did not address whether Congress intended the government to prove the fact that made the "taking" unlawful, the element that had been the focus of the pre-amendment case law.(53)

There are no reported felony prosecutions since the statute was amended.(54) Thus, it is difficult to know whether the courts would find that the "knowledge" requirement includes only those factors listed in the Senate report or also includes the factors in the pre-amendment judicial opinions. There is also no way to know whether the courts agree that Congress has succeeded in adding a scienter requirement to the MBTA.

III. THE JURISPRUDENTIAL CONTEXT FOR INTERPRETING THE MENTAL STATE OF FEDERAL REGULATORY CRIMES

A. The Jurisprudential Challenge of Regulatory Crimes

The problems illustrated by RCRA and the MBTA are merely recent examples of over one hundred years of judicial confusion on the subject of mens rea in regulatory crimes. To understand the nature of the problem and the attempts to resolve it, it is useful to explore the source of the confusion.

The traditional concept of "mens rea" reflects normative, or moral, notions.(55) Mens rea, the "evil-meaning mind," exists when a person consciously chooses to do wrong in the moral sense of the term.(56) Applying this concept to traditional crimes presents challenges,(57) but they have little to do with the basic moral underpinnings of the concept. Traditional common-law crimes--homicide, larceny, burglary, rape, and so forth--grew out of the strong moral convictions of a relatively homogeneous society in that these crimes reflected generally acknowledged sins.(58) The behavior at issue in these crimes was so antisocial and frightening that anyone aware of engaging in it was certainly aware of doing wrong.(59) If the prosecutor could prove that the defendant chose to engage in the behavior, the prosecutor had made out a basic case for mens rea.

Around the turn of the nineteenth century,(60) legislatures began to enact a new type of criminal statute. These new "light police offenses"(61) addressed behavior related to consumer protection, regulation of resources, business practices, and other similar problems.(62) The basic activities covered by these new criminal statutes were socially desirable.(63) True, people could conduct the activities in ways that might harm others (for example, selling spoiled milk could cause illness). However, people who chose to use questionable methods did not choose to do wrong in the traditional, sin-laden sense of the word; some, no doubt, thought they did not choose to do wrong in any sense at all.(64) Awareness of engaging in the behavior was not necessarily awareness of wrongdoing, and thus did not prove mens rea.

The moral ambiguity underlying these new crimes created a problem for judges needing to interpret the mental-state requirements of the new statutes.(65) Mens rea--the "evil-meaning mind"-involved behavior, circumstances, goals, or results that were immoral in the traditional sense.(66) The factual aspects of the new crimes reflected none of this, so how could mens rea exist? On the other hand, tradition required mens rea for a criminal conviction.(67)

As RCRA and the MBTA illustrate, federal judges are still trying to resolve the dilemma. However, the nature of the problem and the parameters of the attempt to resolve it were established in the nineteenth century. In an attempt to illuminate how we arrived at our present state of affairs, the next section traces the nineteenth-century approaches to the problem.

B. The Early Approach: The Development of Classic "Strict Liability"

Faced with the mens rea dilemma, nineteenth-century courts made some effort to shoe-horn the new crimes into common-law patterns.(68) A survey of the federal cases(69) reveals four different approaches. Under the first approach, some courts reasoned that regulatory crimes involved civil wrongs, civil wrongs must be immoral, and so awareness of committing a civilly wrong act amounted to mens rea.(70) A second approach focused on the mandatory presumption that the defendant was aware of the law.(71) Courts concluded that, given this presumption, the defendant must have been aware of violating the law, an awareness that amounts to mens rea.(72) A third technique was to treat Congress as the arbiter of the nation's morality, and to label an act immoral if Congress had declared it criminal; because the act was "immoral" in this sense, a person aware of committing it was aware of wrongdoing and demonstrated mens rea.(73) Finally, some judges dispensed with reasoning altogether and merely declared that the crime required mens rea of the "general intent" variety.(74)

It is unclear why courts abandoned these initial solutions. Perhaps the legal fictions were too strained for the courts to sustain. In any case, toward the end of the nineteenth century, some federal courts began to explore a fifth solution.

This exploration involved statutes regulating morally neutral actions performed in specified circumstances that were also morally neutral. Nevertheless, some courts concluded that when a person knew of the circumstances and failed to investigate the situation further before acting, that person was aware of wrongdoing in the mens rea sense.(75) The Supreme Court case of Felton v. United States(76) provides a good example.

In Felton, defendants were charged under a statute requiring liquor stills to be constructed in such a way that the output of liquor could be monitored for tax purposes.(77) Using the terms of the statute, the government alleged that the defendants "knowingly and wilfully" constructed a still to bypass the monitoring mechanism.(78) Defendants admitted the bypass but argued that it had been an emergency measure to prevent a threatened overflow caused by the use of new and unknown equipment.(79) The trial court convicted the defendants, ruling that it was enough to show an innocently motivated yet purposeful bypass of the mechanism.(80) The Supreme Court reversed, indicating that some moral dimension was required for conviction.(81) An emergency need to bypass the mechanism, arising as an accident, would not suffice.(82) However, the moral dimension would exist if the prosecution could prove an intention to evade the provisions of the statute.(83) The government could do this by offering proof that defendants knew that the new equipment was inadequate(84) or that defendants had been negligent in evaluating that equipment--that they failed "to use in good faith the ordinary means to secure utensils and machinery which will accomplish the end desired."(85)

The Court's assertion that "the moral dimension" could consist of an unreasonable failure to be aware of inadequate equipment seems curious. The Court evidently saw some link between inadequate equipment and moral wrong, but it did not articulate the link with any specificity. Mens rea could not consist of awareness of inadequate equipment alone, as it is not immoral to possess such equipment. Mens rea could arguably consist of awareness of evading the tax laws, on the theory that it is immoral to knowingly evade a government requirement.(86) However, without some fraudulent dimension, violating a rule does not seem wrongful in the traditional sense, and, as the facts of Felton demonstrate, awareness of evasion and intent to defraud are not necessarily the same thing. Finally, even if the logic works for a defendant who is actually aware of using faulty equipment and thus evading the monitoring requirement, the reasoning does not support the conclusion that mens rea consists of a person's negligence about the circumstances at issue.

The Felton "negligence" approach enjoyed some popularity in the lower federal courts(87) and was used again by the Supreme Court in a subsequent case.(88) However, the courts failed to explain the link between mens rea, morally neutral circumstances, and negligence. The omission is not surprising. To explain the link, courts would have had to articulate some widely held moral norms for the behavior under discussion. However, American judges and jurists at the end of the nineteenth century were not interested in doing this, and they shared this disinterest with many other Americans. People felt pressure to solve seemingly overwhelming social problems as quickly as possible.(89) Society had to seek solutions in an environment of general intellectual confusion and uncertainty.(90) Courts were beset by similar doubts about both the content of the law(91) and the role of judges.(92) The leading philosophers of the time were enmeshed in utilitarian, not normative, analysis;(93) they Were More interested in challenging old systems than in adapting them.(94) Law, being inherently conservative, lagged somewhat behind these developments; however, the trends became manifest in the utilitarianism and legal realism of Oliver Wendell Holmes, Roscoe Pound, and Louis Brandeis.(95) Rather than grapple with thorny normative questions, the courts came to treat regulatory crimes as crimes of strict liability,(96) imposing criminal sanctions without proof of mens rea.(97)

A good example of this classic "strict liability" is United States v. Balint.(98) In Balint, defendants were indicted under the Narcotic Act of December 17, 1914 for selling derivatives of opium and coca "not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue."(99) The trial court quashed the indictment because it "failed to charge that [the defendants] had sold the inhibited drugs knowing them to be such."(100) The Supreme Court reversed, indicating that "scienter" was not intended to be a necessary element of the offense.(101) Thus, the indictment did not have to allege that the defendants knew they were dealing in inhibited drugs.(102)

The Balint Court's analysis was strongly utilitarian. For example, the Court pointed out that the crime was one of the "regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as cases of mala in se."(103) The main purpose of the Act was to raise taxes "with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs."(104) Still, despite the utilitarian focus, the Court hinted that the drug-tax crime did have moral dimensions that it was choosing to ignore,(105) a suggestion borne out by at least one subsequent lower court decision.(106)

The "strict liability" approach caught on. After Balint, the federal courts often found that Congress had eliminated mens rea as a requirement in regulatory crimes.(107) However, in the early 1950s the suppressed moral issues began to reemerge. Once again the Supreme Court began to explore the issue of strict criminal liability and the role that morality should play in modem statutory crimes.(108)

C. The Modern Approach: Toward Regulatory Mens Rea(109)

The Court's renewed interest in the moral underpinnings of regulatory crimes was evident in three cases decided in the 1950s. Furthermore, comparison of these three cases indicates the complexity of the problem and the future direction of the Court's attempted resolution.

The first case was Morissette v. United States.(110) The case involved a statute based on the traditional common-law crime of theft.(111) The Court took the opportunity to contrast the interpretation of mental state in such a statute with its approach to a statute not based on the common law. With a statute based on the common law, the Court would assume that Congress meant to include a mens rea requirement.(112) For regulatory crimes, on the other hand, the Court would assume that mens rea was not involved.(113)

About two weeks later, the Court issued its opinion in Boyce Motor Lines, Inc. v. United States.(114) Boyce was charged under a statute requiring proof that it "knowingly violated" an Interstate Commerce Commission regulation requiring it to use the safest practicable route when transporting explosives.(115) The district court dismissed the charges on the ground that the statute was unconstitutionally vague.(116) Upon review, the Supreme Court disagreed.(117) The defendant evidently knew its truck carried explosives. The Court assumed the defendant knew of the requirement to use the safest route.(118) Interpreting the statute, the Court held that the government also had to prove that the defendant either knew of or was willfully blind to the existence of a safer route.(119) In other words, knowledge of carrying explosives plus assumed knowledge of the regulation plus knowledge or willful blindness about a safer route would amount to a mental state that the Court labeled "culpable intent." The statute required proof of "culpable intent" in this manner, and this requirement resolved the "notice" problem.(120) The Court did not mention Morissette, and it did not explain how "culpable intent" compared to the mens rea at issue in that case.

The third opinion was issued five years later and raised the same "notice" issue involved in Boyce. The defendant in Lambert v. California(121) was charged with violating an, ordinance making it a crime under certain circumstances for a convicted felon to fail to register with the Los Angeles police.(122) Unlike Boyce, the Lambert court agreed with the argument that notice was lacking. The defendant was evidently aware of her felony conviction and her presence in Los Angeles. Presumably, if anyone had asked she would have admitted awareness of not having registered. However, the ordinance did not require the City to prove that Lambert knew of the registration requirement, and the Court was unwilling to assume her knowledge of the law.(123) Without knowledge of the law being presumed or proved, the ordinance did not require "willfulness."(124) This being so, the ordinance provided insufficient notice to comport with due process.(125)

An attempt to harmonize these three cases produces interesting results.(126) The cases reveal three types of mental state requirements: mens rea (Morissette), "culpable intent" (Boyce), and knowledge that does not amount to either of these (Lambert). Boyce shows that "culpable intent" does not amount to mens rea but is enough to save a statute from a due process "notice" challenge. However, criminal statutes with the third type of mental-state requirement are, if Lambert is a guide, unconstitutional. Thus, it is important to know what type of knowledge amounts to "culpable intent." Here the three 1950s opinions offer little help. The most obvious difference between Boyce and Lambert is that the Court was willing to assume knowledge of the law in the former but not the latter case. In explaining its assumption of knowledge in Boyce, the Court emphasized the trucking industry's participation in developing the regulatory scheme. However, the Court did not say that Boyce itself had participated.(127) The Court hinted at a more general basis for the assumption in Lambert, where it refused to indulge it, when it said that strict liability crimes are acceptable in statutes involving "circumstances that should alert the doer to the consequences of his deed."(128) However, the Court did not explain just what type of circumstance meets this test. Almost fifteen years would pass before the Supreme Court would again take the opportunity to explore this precise issue.(129) Then, in a series of cases decided in the 1970s and 1980s, the Court gradually developed the broad outline of its current approach.

The first of these cases was United States v. Freed.(130) Freed was charged with violation of the National Firearms Act, which made "it unlawful for any person `to receive or possess a firearm which is not registered to him.'"(131) The trial court dismissed the charges on two grounds, one being that no scienter was alleged.(132) The Supreme Court reversed, holding that no allegation of scienter was needed because the statute in Freed imposed strict liability.(133)

The Court's sense of strict liability reflected the distinctions it had begun to make in its 1950s cases. The Firearms Act imposed strict liability in the sense that it did not require traditional mens rea.(134) However, the Act did not impose strict liability in the absolute sense that had existed in the Lambert ordinance.(135) That statute had required awareness of an activity-being in Los Angeles--that "is not per se blameworthy."(136) The statute in Freed stood in between the two extremes of classic mens rea and absolute strict liability:(137) Although the activity in Freed was not blameworthy in the traditional sense, it was not entirely blameless.(138) The Court stated that the statute in Freed

is a regulatory measure in the interest of the public safety, which may well be

premised on the theory that one would hardly be surprised to learn that possession

of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint ....(139)

Following Freed, the Court next heard United States v. International Minerals & Chemical Corp.,(140) a case which, like Freed, also involved a statute in this middle range. The defendant there had been charged with shipping corrosive chemicals in interstate commerce without the proper paperwork.(141) In reversing the trial court's dismissal of the charges,(142) the Supreme Court framed the mental state issue as follows:

Here as in United States v. Freed ... strict or absolute liability is not imposed;

knowledge of the shipment of the dangerous materials is required. The

sole and narrow question is whether "knowledge" of the regulation is also required.

It is in this narrow zone that the issue of "mens rea" is raised ....(143) The Court held that the prosecution need not prove knowledge of the regulation because the shipping of dangerous material was not a completely innocuous act:

So far as possession, say, of sulfuric acid is concerned the requirement of

"mens rea" has been made a requirement of the Act as evidenced by the use of the word "knowingly." A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered.(144)

The Court's words reveal a significant shift in doctrine from previous cases, a shift best seen by comparing the approach taken in International Minerals with the approach taken in Balint. The statutes in these cases are similar in that both require proof that the defendant was aware of handling a certain type of dangerous and regulated substance.(145) If the Balint paradigm were still controlling, the Court would have said that this awareness sufficed because the statute is one of strict liability in which no mens rea is required. Instead, the Court indicated that this awareness satisfied the mens rea requirement. Furthermore, the International Minerals Court extended this revisionist explanation to the Balint case itself and others like it.(146) The Court stated:

In Balint the court was dealing with drugs, in Freed with hand grenades, in this

case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips

may also be regulated. But they may be the type of products which might raise

substantial due process questions if Congress did not require . . . "mens rea" as

to each ingredient of the offense. But where, as here and as in Balint and

Freed, dangerous or deleterious devices or products or obnoxious waste

materials are involved, the probability of regulation is so great that anyone who

is aware that he is in possession of them or dealing with them must be presumed

to be aware of the regulation.(147)

This language confirms the existence of a new type of mens rea based on some distinction between "innocent' and "dangerous" activities. However, the nature of that distinction is evident only from the examples used. In addition, the relationship between this new mens rea and the old, traditional approach is not explored at all.(148)

The third case in the 1970s was quite different. United States v. United States GYPSUM Co.(149) involved a criminal antitrust prosecution. Here, the Court held that in addition to proving the defendant's awareness of engaging in the activities at issue, the government must prove defendant's awareness that these activities would result in price fixing and restraint of trade.(150) The Court inferred the 'awareness of consequences" requirement from its presumption that Congress did not mean to eliminate mens rea.(151) The Court gave three reasons for this presumption. First, a mens rea requirement was the rule, rather than the exception in criminal law.(152) Furthermore, if mens rea were not an element of the criminal antitrust statute, "overdeterrence" would occur when business people refrained from engaging in "the gray zone of socially acceptable and economically justifiable business conduct."(153) Finally, the Court saw evidence that Congress intended more than regulation here; it intended punishment.(154) However, despite an "awareness of consequences" requirement, the government would not have to prove an actual purpose, or "conscious desire to bring [the likely effects] to fruition or to violate the law."(155)

In the mid-1980s, the Court interpreted another statute criminalizing relatively innocuous activities. In Liparota v. United States,(156) the defendant was charged with the felony of knowingly buying food stamps "in any manner not authorized by [the statute] or the regulations."(157) At trial, the government proved that Liparota was aware of buying food stamps for less than their face value, behavior that was indeed unauthorized.(158) However, the trial court did not require the government to prove that Liparota was aware that his behavior was unauthorized by the law.(159) Rather, the trial court held that all that was required was knowledge of the facts of the situation.(160) Liparota therefore was convicted.(161) On review, the Supreme Court rejected the trial court's views and interpreted the statute(162) to require "a showing that the defendant knew his conduct to be unauthorized by statute or regulations."(163) It took this position because a mens rea requirement is a "background assumption of our criminal law,"(164) because 'to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct,"(165) and because it could find no "indication of contrary purpose in the language or legislative history of the statute."(166) In addition, unlike its treatment of the firearm statute in Freed(167) and the "transportation of hazardous materials" statute in International Minerals,(168) the Court refused to categorize the food stamp statute as a "public welfare offense"(169) for which the Court does not require proof of awareness of the law.(170) This was because trading in food stamps was unlike behavior that "a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety."(171)

Taken together, the cases from the 1970s and 1980s establish a relatively clear protocol for interpreting the mental state requirement of regulatory crime statutes in which the mental state element is ambiguous. The Court established two categories of regulatory crimes and adopted a different interpretive presumption for each.

The Court labeled one category "public welfare offenses."(172) These statutes regulate behavior that "a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety.(173) With these statutes, the Court would assume that Congress meant to require proof of the defendant's awareness of engaging in the prohibited activity(174) (for example, awareness of possessing a hand grenade(175) or awareness of transporting hazardous chemicals(176). An examination of precedent shows that the Court had treated a number of statutes in this way, including those involved in United States v. Freed(177) (possession of a hand grenade), United States v. International Minerals & Chemical Corp.(178) (interstate shipment of dangerous materials without the proper paperwork), United States v. Dotterweich(179) (misbranded or adulterated food or drugs), and United States v. Balint(180) (transfer of narcotic drugs).

The second category remained unlabeled by the court but consisted of all other regulatory crimes. However, the nature of the Court's discussion makes it sensible to name this category "innocent activity offenses."(181) Cases with statutes in this category include Liparota(182) (the purchase of food stamps for less than their face value), United States v. United States Gypsum Co.(183) (criminal antitrust), and Lambert v. California(184) failure to register as a convicted felon). The Court would interpret ambiguous(185) federal(186) "innocent activity offenses" to require proof of the defendant's awareness of not only the activity but also something more. In United States Gypsum, the 'something more" was the defendant's awareness of the probable consequences of its activity;(187) in Liparota the "something more" was the defendant's awareness that the activity was prohibited by law.(188)

This newly articulated interpretive protocol is especially interesting when compared to the view of mens rea the Court began to develop in the 1950s. As noted above, that view included three types of mental state requirements:(189) 1) mens rea in the traditional, moral sense; 2) "culpable intent," or awareness of wrongdoing but not in the traditional sense; and 3) knowledge that does not amount to either of these. The new protocol reveals that "public welfare offenses" are the middle category: They require "culpable intent" not amounting to traditional mens rea; this "culpable intent" amounts to the intent to engage in an activity that "a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety."(190) The "innocent activity offenses" are more complicated. When they require mere knowledge of the morally innocent activity being conducted, they fall into the third category; when they are in this category they are constitutionally suspect, if not unconstitutional.(191) However, when they also require knowledge of the law or knowledge of certain consequences, they fall into the first category--that is, they become statutes requiring mens rea in the full, traditional sense of the term.(192)

Since 1991, the Court has taken several opportunities to reaffirm and refine its approach to interpreting regulatory crime statutes. First, the Court has added two crimes to the list of those where it will infer an awareness of the law" element: certain tax crimes(193) and a currency restructuring statute.(194) In addition, the Court has reaffirmed that mens rea in a regulatory crime sometimes consists of awareness of possible consequences of behavior.(195) Most importantly, the Court has made what may be a major modification to its definition of "public welfare offense." This refinement occurred by implication in Staples v. United States.(196) Staples involved a prosecution under the National Firearms Act,(197) Which the Freed Court had treated as a "public welfare offense."(198) In Freed, the defendant had possessed a hand grenade, and there was no claim that he was ignorant of the nature of this item.(199) In Staples, the defendant possessed an unregistered fury automatic weapon(200) but claimed he thought it was only semi-automatic.(201) He requested jury instructions requiring the government to prove his knowledge that the rifle was fully automatic.(202) However, the trial court refused, instructing the jury that it was sufficient for purposes of mens rea for the government to prove defendant's knowledge that he was "dealing with a dangerous device of a type as would alert one to the likelihood of regulation."(203) Subsequently, the Tenth Circuit affirmed,(204) but the Supreme Court reversed.(205)

Even though the statute was silent as to mental state, the Court assumed that it "must construe the statute in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded."(206) In contrast, the government argued that the Act was a public welfare offense which only required the prosecution to prove that the defendant was aware of dealing with a dangerous device; the government urged that because guns in general are dangerous, it needed to prove only that the defendant was aware of dealing with a gun.(207) However, the Court disagreed(208) and rejected the argument that all guns "alert their owners to the probability of regulation."(209) The Court explained that adopting the government's argument would result in a reversal of the Court's past efforts to avoid interpreting statutes to eliminate mens rea "where doing so would 'criminalize a broad range of apparently innocent conduct.'"(210) Some gun ownership must be considered innocent due to the "long tradition of widespread lawful gun ownership by private individuals in this country"(211) which indicated that "[g]uns in general are not `deleterious devices or products or obnoxious waste material.'"(212) According to the Court's analysis, some dangerous items may "be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation."(213) The Court, however, admitted that ownership of certain types of guns may be classified as noninnocent(214) and, if so, would fall under the scrutiny of the Act at hand; nevertheless, the government must still prove that the defendant knew he possessed a non-innocent type of gun.(215)

The Staples approach to the definition of public welfare offense is a radical departure from prior cases. First, in order to be a public welfare offense, a statute must now regulate art activity that is both dangerous and uncommon.(216) Yet, if this definition is maintained in general,(217) the mental state of numerous statutes--regulating guns and other items--will be at issue.(218) In addition, the Court clearly considered the mental state requirement in the Act to be a type of mens rea, saying that public welfare offenses do not impose either a rigorous, or "[t]rue strict liability"(219) Since mens rea was required for some elements.(220)

Since Staples, the Court has said no more about mental state in regulatory crimes.(221) Thus, the present structure for interpreting mental state in ambiguous federal regulatory crime statutes is as follows:

First: Some regulatory crimes are "public welfare offenses." These are crimes in which "a reasonable person should know [that the proscribed activity] is subject to stringent public regulation and may seriously threaten the community's health or safety."(222) For ambiguous statutes in this category, the Court presumes that the government must prove the defendant's awareness. of those aspects of the proscribed activity that provide notice of probable regulation: danger and uncommonness.(223) The Court considers such awareness to be a type of mens rea.

Second: Other regulatory crimes are "innocent activity offenses."(224) This category includes statutes regulating activities that are dangerous but commonplace, at least those having a long history of acceptance. Here, the presumption is that the statute requires traditional mens rea. At times, the requirement will be satisfied by defendant's awareness of a consequence of the proscribed activity.(225) However, other statutes may require proof that the defendant was aware of violating noncriminal law.(226)

While this structure is easy to summarize, it is difficult to apply and does not answer all of the mental-state questions raised by the environmental crimes statutes. The unanswered questions include:

* When is an activity "dangerous"(227) and "uncommon" enough to form the basis of a "public welfare offense"? Which, if any, of the environmental crimes fit here?

* If a crime is an 'innocent activity offense," when will awareness of a consequence suffice for mens rea? When must the government prove awareness of the law?

* How does the protocol resolve RCRA's "permit status" issue?

* What indications of congressional intent will overcome the Court's presumptions about mens rea?

The Court's struggles since the 1950s provide a guide for answering these questions, but the insights are hidden. The key lies in recognizing that the Court has been attempting to articulate a normative jurisprudence for regulatory crimes. The Court's categories focus on the innocence or blameworthiness of the situations being regulated, and they interpret mental-state requirements accordingly. If we can articulate the underlying normative jurisprudence more thoroughly, we will be better able to address the unanswered questions.

D. The Normative Jurisprudence of Regulatory Mens Rea

In attempting to articulate the jurisprudence of regulatory mens rea, the place to begin is with the common law. This is because mens rea is a common-law concept and, as noted above, because the nineteenth-century courts abandoned it in regulatory crimes without thorough exploration.(228) Furthermore, it is advisable to delve into common-law mens rea in some detail, that is, to explore the distinction between "general" and "specific" intent.(229) This common-law distinction resembles in some important ways the Court's distinction between "public welfare" and "innocent activity" offenses, thus throwing light on some of the more subtle issues involved.

By the beginning of the nineteenth century, courts had developed two categories of traditional mem rea: "general intent" and "specific intent."(230) These categories differ according to how the government proves the defendant's "evil-meaning mind." Neither category requires the government to prove that the defendant was aware of the law, because such awareness is assumed.(231) However, the categories differ significantly in other aspects that concern the nature of the defendant's culpability.

General intent involves culpability that is objectively assessed. "[I]t is sufficient to convict when the defendant did what in ordinary speech we would call simply an intentional action"(232) and was at least negligent about the circumstances made relevant by the definition of the crime.233 Another way to state this dynamic is to focus on how an accused defends against general intent. The defense can raise a relevant mistake of fact, but the mistake must be reasonable.(234) (Sketched generally in this way, the description of "general intent" strongly resembles the Court's approach to the problem in Felton v. United States,(235) the late nineteenth-century case discussed above.(236) Yet, as later discussion will illuminate, Felton did not involve "general intent."(237))

Specific intent involves culpability that is subjectively assessed. The prosecution must prove that the defendant engaged in the actions "with some specified further purpose in mind" or that the defendant was subjectively aware of some specific circumstance."(238) The emphasis is on the defendant's actual awareness; thus, the accused can defend by raising an honestly held, albeit unreasonable, relevant mistake of fact.239 At times, the common law adds a specific intent element to enhance the seriousness of the crime beyond that established by general intent.(240) However, some behavior would not be criminal at all absent proof of a specific intent. In other words, the behavior is such that awareness of it does not amount to general intent; thus, the specific intent requirement permits a finding of mens rea where none would otherwise exist.(241) It is this use of specific intent to create criminality vel non that is especially interesting to this analysis.

This structure of the common law illuminates much about regulatory crimes, but only if we delve beneath the traditional niles. So far, we have seen how the common law categorizes mens rea, but it is more important to understand why two categories developed and why a specific type of criminality fits into one rather than the other. Unfortunately, this aspect of the common law is rarely discussed. However, we can begin to understand the "why" of the common-law categories if we reexamine the definitions of general and specific intent and consider examples of crimes in each class.

General intent indicates that a person has an "evil meaning mind"(242) when he intentionally performs an act and is negligent (unreasonably mistaken) about the relevant surrounding circumstances. One example is common-law arson, the malicious burning of the dwelling of another."(243) If Tom intentionally bums a building he believes is his own garage, he has an "evil meaning mind" if the reasonable person would be aware that the building was Harry's house. Another example is common-law battery, the "intentional application of unlawful force to the person of another."(244) If Jane intentionally stabs Mary in the leg, she has an "evil meaning mind' unless she reasonably believes the leg to be her own.

A contrast is evident when we examine specific intent, at least when it is used to establish criminality vel non. Here, a person has an evil meaning mind" only when he intentionally performs an act and is actually aware of surrounding circumstances, has "some specified further purpose in mind," or both. An example is common-law larceny, "the trespassory taking and carrying away of the personal property of another with intent to steal the same."(245) If Harry carries off a book he knows belongs to Ann, he is guilty of no crime even though he has committed an intentional act aware of all relevant circumstances.(246) This is so because the trespassory taking of the property of another is not a crime at common law.(247) To convict Harry of a crime, the government must prove a specified further purpose in mind": his intent to keep Ann's book permanently. This intent to steal"--a specific intent"--is the element that makes Harry's activity criminal.

Why is it that battery and arson are "general intent" crimes, while larceny requires "specific intent"? Some useful insights are found in George Fletcher's Rethinking Criminal Law.(248) Fletcher distinguishes among various patterns of criminality, two of which are "manifest crimimality" and "subjective criminality."(249) The difference between the act elements in the two patterns is instructive.

According to Fletcher's analysis, crimes fit into the manifest criminality" pattern when they involve a situation--conduct and circumstances--"unnerving and disturbing to the community as a whole."(250) Anyone observing the situation immediately concludes that criminality is afoot. Because people usually know what they are doing, the actor must also be aware that he is doing wrong.(251) This explains why, in order to prove mens rea, the prosecutor merely has to show the defendant's conduct and the surrounding circumstances.(252)

As society became more complex,(253) the legal community came to see that this basic approach to mens rea was insufficient to deal with all types of criminality.(254) The approach could not deal, for example, with situations in which the act-circumstance combination appeared innocent on the surface but was conducted by a person secretly harboring criminal intent.(255) Take, for example, the person who rode off on a horse after agreeing with its owner to lease its services. This situation was not one to unnerve and disturb the community. People would be upset only if someone could show that the defendant acted with the intent never to return the horse to its owner. The elements of the crime had to include something more than the basic conduct-circumstance combination of "manifest criminality" crimes.(256) Thus, the law developed another approach to mens rea, one that focused on subjective criminality--on the government's need to prove what was really in the defendant's mind as opposed to what should have been there.

While Fletcher does not use the terms "general" and "specific" intent, the parallel between Fletcher's categories and those of the common law is striking. Furthermore, the notion of "manifest criminality" explains much about "general intent" crimes. General intent, as noted, permits proof of conduct and circumstances to suffice as proof of mens rea: The situation is inherently wrongful, so awareness of engaging in it is presumptively awareness of wrongdoing. The manifest criminality" notion explains why this dynamic works: Conduct-circumstance combinations that, immediately upon view, cause horror and fright in the community are inherently wrongful in a deep, shared, virtually Biblical"(257) sense; because everyone knows the behavior is seriously wrongful, anyone aware of engaging in it has an "evil meaning mind." On the other hand, an actor who made a factual mistake(258) and thought the situation was innocent would not be aware of wrongdoing. However, the notion of "manifest criminality" also explains why general intent requires a mistake to be reasonable.(259) When the observable situation gives enough clues for a reasonable person to avoid making a mistake, a person has an "evil-meaning mind" in falling to take account of those clues. Finally, the manifest criminality" notion also helps define the limits of general intent' crimes: A crime cannot fit into this category unless it punishes a conduct-circumstance combination that fits into this dynamic.(260)

The crux of the specific intent" category is different. When used to define criminality vel non, "specific intent" encompasses act-circumstance combinations that seem innocent when viewed objectively. A person aware of the manifest situation alone is not aware of wrongdoing; instead, awareness of wrongdoing exists only in the knowledge of some special circumstance, goal, or motive that itself denotes moral wrong. Again, the morality at issue has to be basic and commonly shared for awareness of the circumstance, goal, or motive to amount to mens rea.

When we express general" and specific intent' in terms of the objective situations involved, the parallel to the Court's regulatory crime categories is evident. The public welfare offense' category is at least superficially similar to "general intent" in some striking ways. "General intent" crimes encompass conduct-circumstance combinations that are so unsettling that everyone knows they are criminal. Public welfare offenses encompass conduct-circumstance combinations that are so dangerous(261) and uncommon(262) that everyone should know they are regulated. Given this similarity, it is perhaps valid to say that public welfare offenses also reflect deeply held moral values in modem society. Perhaps public welfare offenses' are the general intent' crimes of the modem era.

There are even more competing parallels between "innocent activity offenses" and "specific intent" crimes. "Specific intent," when used to establish criminality vel non, involves a conduct-circumstance combination that, when viewed objectively, appears completely innocent; some extra, hidden, actual awareness supplies the "evil-meaning mind." Federal "innocent activity crimes' operate in the same way, with one difference. In traditional "specific intent," the defendant is subjectively aware of a circumstance, goal, or motive that is immoral in the traditional sense. This may also be true in "innocent activity offenses" when the "something extra" is the defendant's awareness of violating the law, as in Liparota:(263) Although awareness of violating the law was rarely if ever a specific intent requirement at common law, such awareness arguably amounts to awareness of wrongdoing. However, the parallel to common law is not immediately clear in the regulatory crime cases where the "something extra" has been awareness of probable consequences because price-fixing(264) and using

and using prohibited drugs(265) are not traditionally immoral activities.(266) On the other hand, perhaps these "extra" dimensions have unexplored modem moral meanings.

In sum, a comparison with the common law leads to the same question for each regulatory crime category: What modem moral consensus, if any, lies beneath regulatory crimes? The Court has not addressed this question for "innocent activity offenses." However, it has begun to do so for public welfare offenses." In limiting these offenses to dangerous" and "uncommon" activities, the Court is looking for a common moral denominator--a set of characteristics that will evoke a normative consensus similar to the consensus underlying common-law "general intent" crimes. What is more, it is fair to conclude that the Court has been relatively successful in its efforts.

The Court comes closest to the mark when it limits public welfare offenses to certain dangerous activities. These activities--transferring narcotics,(267) marketing food and drugs,(268) possessing certain firearms,(269) and transporting dangerous chemicals(270)--all threaten the community's health and safety(271) in a particular way: Each one presents a nonspeculative(272) risk of direct physical harm to people or their property.(273) These activities are not immoral in the sense that killing, theft, assault, and rape are immoral. Yet, there is a moral resonance274 that comes from the real, direct threats these activities pose to human beings.(275) This type of threat is far more unnerving--and thus more morally charged--than sharp economic practices or nonviolent insults to government authority.(276) Still, the Court's thinking about these activities as a basis for public welfare offenses has fallen short in one regard. This will be seen and discussed later when we apply the category to environmental climes.(277)

It is harder to understand the basis for the Court's recent addition of the criterion "uncommon" to the definition of "public welfare offense."(278) This is because the "uncommonness" factor is hard to reconcile with some already existing public welfare offenses. For example, the marketing of food and drugs, an extremely commonplace activity, is the basis of a public welfare offense.(279) It is difficult to find a persuasive way to harmonize this treatment with that accorded to gun possession, deemed too "common" to give notice of regulation. The Court has hinted that the intensity of regulation may make a difference,(280) but has not yet explored the nature of different levels of intensity.(281) It is possible that a distinction can be built on the fact that food and drug marketers are mainly business people, while gun owners include both businesses and private citizens. It is also possible, however, that the Court will use the label "commonplace" when the activity is one that, although dangerous, is nevertheless morally ambiguous--that is, where large segments of the community are willing to overlook the danger in the interest of some other agenda.

The Court has also given scant attention to the question of what normative consensus underlies the element of "awareness of probable consequences" required in some "innocent activity offenses." In United States Gypsum, for example, the Court required proof of the defendant's awareness that the activities would result in price finding and restraint of trade.(282) It is not obvious why knowledge of probable price fixing should amount to mens rea, or an "evil-meaning mind." Fixing prices and restraining trade are not immoral in the traditional sense. Neither are they immoral in the public welfare offense sense of threatening physical danger to persons or property. The Court's treatment of the antitrust statute could be based on its acceptance of a third moral category-a third way to be aware of wrongdoing. Perhaps antitrust problems have been around long enough for our society to have developed a consensus that restraint of trade is morally wrong. Another possibflity is that morality" can be assessed for a relevant sub-group rather than for society as a whole; if the business community" were to qualify as such a sub-group, the moral dimensions of price fixing and restraint of trade might be clearer.(283)

However, it is unlikely that the Court is exploring a third type of moral category. This is because the "probable consequence" cases can actually be placed into one of the already existing categories. The Court's reasoning in United States Gypsum, for example, amounts to notbing more than a vailation on Liparota's requirement that defendants be aware of violating the law. In Liparota,(284) the statute prohibited transferring food stamps "in any manner not authorized by [tlie statute] or the regulations."(285) This reference to the statute and regulations was a sort of shorthand: a substitute for listing or describing all the urdawful ways to deal with food stamps.(286) United States Gypsum's reference to price fixing and restraint of trade involves the sarne basic dynamic, except in reverse. That is, instead of generally prohibiting all activities unauthorized by noncriminal law, and thus using short-hand, the statute specifically narnes the prohibited activities of price fixing and restraint of trade, thus articulating tile content of tlie law.(287)

To summarize, the Court has developed a protocol for interpreting the mental-state requirement in aiinbiguous regfflatory crimes, a protocol based on a coherent extension of traditional normative jurisprudence. The Court examines the conduct-circumstance combination defined by the statute. If the Court can say that the situation is physically dangerous; and uncommon enough to cause widespread community concern, the crime is a "public welfare offense." In those cases, mens rea consists of the defendant's awareness of engaging in that conduct under those circumstances. For other statutes, the crime is an "innocent activity offense"; mens rea therefore consists of the defendant's awareness of the conduct, the factual circumstances, and either the law or a probable unlawful consequence.

With the Court's current approach thus summarized, we are ready to address the unanswered questions revealed by some environmental crime statutes. These questions are 1) Which conduct-circumstance situations quality for "public welfare offense" treatment? 2) How does the protocol deal with the issue of permit status? 3) What is the result when Congress unambiguously denotes a mental state that does not amount to mens rea as the Court now understands that concept?

IV. The Court's Unsolved Problems and Environmental Crimes

A. Dangerous " and "Uncommon" Activities

As noted above, "public welfare offense" activities have two characteristics: They are "dangerous" in the sense of presenting a nonspeculative risk of direct physical harm to people or their property, and they are uncommon in the sense that they lack longstanding public acceptance or some other reason to overlook any danger they pose. Which environmental crimes are "public welfare offenses"

1. Dangerousness: The Migratory Bird Treaty Act and the Clean Water Act

It is easy to conclude that the MBTA is not a "public welfare offense." The Act prohibits activities such as taking or selling migratory birds.(288) On the surface, the taking or selling of migratory birds threatens no real danger to the health and safety of people or property. Thus, on "dangerousness" grounds alone,(289) the criminal provisions of the MBTA fall squarely in the "innocent activities" category.(290)

Some might disagree with this analysis, arguing, for example, that the "taking" of birds could result in the extinction of species; such extinction could have ecological consequences that would cause widespread physical harm to persons or property from which individuals could not adequately protect themselves. Nevertheless, it is likely that this assertion would be debated on several grounds. Some would say that the physical mechanisms underlying the prediction of human harm are unproved. Others would argue that even though the mechanisms might be valid, the occurrence of the harm is too far in the future to carry much moral weight. Still others would say that wildlife is a "natural resource" whose use by human beings is a moral good, not a moral wrong.(291) The contentiousness of the issue indicates that while some people raise the protection of animals to the level of a traditional (even religious) moral imperative,(292) this attitude does not yet encompass widespread societal consensus; in fact, it is probably safe to conclude that most people in our society are still basically anthropocentric in their moral views.(293) The moral ambiguity surrounding the issue(294) prevents inclusion of the MBTA in the "public welfare offense" category.(295)

Nonetheless, many courts have labeled the MBTA a "public welfare offense,"(296) reflecting a failure to restrict the category to activities posing a threat of physical harm to people or property. For example, in United States v. Engler,(297) the Third Circuit implied that the MBTA in general was "a regulatory measure in the interest of public safety."(298) The court focused on a distinction between active and passive behavior,(299) used only part of the "public welfare" definition,(300) and noted that ([tlhe prohibition of such sales [of protected birds] furthers 'a national interest of very nearly the first magnitude.'"(301) On this last point, Judge Higginbotham's concurrence was correct in pointing out that the national interest at stake in "public welfare offenses" is different from that identified by the majority.(302)

It is true that in some instances a focus on the specific facts of the case rather than on the statute itself would quality a violation of the MBTA as a "public welfare offense." For example, both Engler and Corbin Farm Service(303) dealt with "taking" birds by killing them with pesticides. Use of pesticides is an activity that could be said to threaten risk. of physical harm to persons and property.(304) Thus, one could label the crime a public welfare offense by focusing on the facts of the case and the actions the defendants used to "take' a bird, instead of focusing on the words of the MBTA statute. However, this is probably not what the Court had in mind.

Rather than focusing on the facts in determining public welfare offense status, the Court has consistently focused on the definition of the crime found on the abstract face of the statute.(305) This may be because if evidence is the unit of inquiry, then at times a statute may be a "public welfare offense" and at other times an "innocent activity offense."

However, the problem of dual categorization is not always averted by focusing on the face of the statute. The Clean Water Act (CWA)(306) is a case in point. The basic felony provision of the CWA imposes sanctions on any person who "knowingly" violates specific sections of the Act or the regulations implementing those sections.(307) The few cases that have interpreted the mental state provision of this section agree that the Act is a public welfare offense requiring the prosecutor to prove only awareness of discharging pollutants.(308) This conclusion makes sense when the CWA criminalizes unpermitted discharges of hazardous pollutants.(309) However, section 309(c)(2) also criminalizes activities involving relatively innocuous materials.(310) Even if a court focuses only on the face of the statute, the statute will still punish some "dangerous' activities and some 'innocent" activities.(311) So to be true to its interpretive protocol, the Court, based on the face of the statute, will sometimes impose a specific intent requirement (when section 309(c) applies to filling activities or pollution activities that are common) and sometimes will not (when the statute applies to uncommon pollution activities). While this is not an impossible state of interpretive affairs, it is' definitely a difficult one to administer.

2. Commonplaceness: The Resource Conservation and Recovery Act

In Staples v. United States,(312) the Court suggested that even dangerous activities give no notice of regulation if they are commonplace.(313) These activities therefore, would be considered "innocent."(314) Thus, following Liparota,(315) and absent explicit congressional direction to the contrary, the government would be required to prove mens rea in the form of awareness of the law.(316)

The issue of commonplaceness has potentially grave consequences for the application of RCRA.(317) On the face of the statute, RCRA felonies seem to be "public welfare offenses"(318) because they involve activities connected with handling hazardous wastes that threaten the physical health and safety of persons and property.(319) However, some of the activities regulated by RCRA can be characterized as commonplace.(320) For example, RCRA applies to some generators of hazardous waste(321) who clean and maintain buildings, clean and launder clothing, construct buildings, repair equipment, refinish furniture, maintain vehicles, and operate printing equipment.(322) Is RCRA a public welfare offense in these situations? The answer depends upon what the Court means by "commonplace." RCRA is not a "public welfare offense" if the term is meant literally; it may be a "public welfare offense" if the term is a label put on dangers society is simply willing to overlook.(323)

RCRA's regulation of arguably "commonplace" activities raises a problem similar to that of the MBTA(324) (Since commonplaceness may vary with the facts) and the CWA(325) (since all basic RCRA crimes are dealt with in one statute). In addition, RCRA highlights another problem that is particularly pressing in the context of regulated activities that are factually dangerous but, because they are common, are considered legally "innocent." If the government has to prove the defendant's knowledge of the law too frequently, will there be any viability left to RCRA criminal enforcement provisions? Will the "specific intent" requirement make it harder to convict and, therefore, harder to use the criminal sanction to protect the environment and public safety?

There is no doubt that the additional requirement makes it technically more difficult to prosecute a RCRA violation. However, in reality, the government should often have little trouble proving a defendant's awareness of the law. As noted in United States v. Liparota, such awareness may be proved by circumstantial evidence such as sneaky behavior.(326) Similar circumstantial evidence in the RCRA context might include such behavior as concealing or falsifying information in reports, tampering with monitoring equipment, or handling wastes furtively. In addition, the government will often be able to prove a defendant's awareness of the law by showing previous interactions with agency staff performing instructional or civil regulatory fractions. However, in those cases in which the government cannot prove awareness of the law, one must ask whether felony sanctions truly are appropriate. If. such sanctions carry any sense of moral opprobrium, which they traditionally do, what is wrong with asking the government to prove the basis of that stigma? As to protecting the environment, when the moral basis for felony sanctions is lacking, civil enforcement mechanisms still exist to give the regulatory structure some teeth.(327)

B. "Knowledge" in "Public Welfare Offenses"

This section addresses the prosecutions in which RCRA and the CWA fit into the category of "public welfare offenses." In such cases, the government will have to prove that the defendant was aware of engaging in the activity giving notice of regulation, namely the activity that is dangerous and uncommon. Does this requirement mean that the government must prove awareness of lack of permit?

1. The Basic Problem: Awareness of Permit Status

When a regulatory statute criminalizes dangerous activities that are not common, it is a "public welfare offense."(328) To convict under such a statute, the government is not required to prove awareness of the law, but only awareness of engaging in the prohibited activity.(329) In the context of RCRA and the CWA, this means that the government need not prove the defendant's awareness of the permit requirement--it is presumed.(330) This presumption, that the actor is aware of regulation, makes sense for "public welfare offenses' since logic dictates that one should assume that dangerous and uncommon activities will be regulated.(331) As noted above, this reasoning is similar to the reasoning underlying "general intent' crimes, where the inherent immorality of the activity makes it logical to assume that the actor knew it was unlawful.(332)

However, the Court has also said that "public welfare offenses" do not require the defendant to be aware of all the factual elements of the crime. For example, in Freed, the Court held that the government did not have to prove the defendant's knowledge that the hand grenade was unregistered.(333) Yet, the Court concludes that public welfare offenses require some type of mens rea even though the statute does not require awareness of permit status.(334) This is tantamount to saying that a person is aware of doing a moral wrong merely by being aware of engaging in an uncommon activity that threatens the health and safety of the community.

This conclusion is troublesome because it is not always morally wrong to threaten the safety of persons or property. For example, at common law a person who presents a risk of physical harm but does not realize the risk is guilty of an "inchoate" crime,(335) in which the government must prove a specific intent to achieve the target harm.(336) This is so even when the risk of physical harm is quite real.(337) Until the government proves the specific intent to achieve the harm, it has not sufficiently established mens rea. Similarly, public welfare offense activities are 'inchoate' as to any physical harm to persons or property.(338) However, unlike common-law inchoate crimes, they do not require specific intent to cause physical harm; awareness of engaging in the activity is sufficient.(339) Thus, common-law inchoate crimes are treated quite differently from public welfare offense inchoate crimes.340 Common-law inchoate crimes are harder to prove.

It might be possible to explain this difference by arguing that society considers public welfare offense activities to be inherently more wrongful than activities addressed by traditional inchoate crimes. This argument is probably most persuasive when directed to activities such as the transportation of dangerous chemicals or hazardous waste. For one thing, these activities seem to be accompanied by a sense of inevitability or fatalism, that sooner or later some degree of harm will come about even if due care is exercised.(341) In addition, a chemical spill threatens harm that is widespread in nature, affecting many people at once--even whole communities.(342) Finally, many people feel unable to protect themselves from the harm threatened by a chemical spill despite all reasonable efforts.(343)

These heightened fears may enhance the moral resonance of public welfare offense activities(344) to the degree that awareness of engaging in the activity equals awareness of wrongdoing despite the fact that the actual harm is not realized. It is unlikely, however, that this conclusion is accurate because we allow and even encourage people to engage in public welfare offense activities.(345) While society sees the risk involved in transporting dangerous chemicals, we do not want to give up our dependence on them; they must therefore be transported and we want people to do the job. The same conclusion applies to environmental crime statutes. Given our dependence on certain types of products, at some level we want people to generate, transport, store, and dispose of hazardous waste. Similarly, our activities and biological functions result in the need for sewage disposal; given imperfect systems and economic constraints, we realize that occasionally treatment plants must be able to discharge untreated sewage into the ocean.

The truth of the matter is that a person engaged in a public welfare offense activity is aware of committing a "wrong" in only two situations. First, of course, the person is doing "wrong" when he is carrying out the activity incorrectly; by extension, regulatory mens rea exists when a person is aware of or negligent about carrying out a public welfare offense activity incorrectly.(346)

The second situation is more complicated. To encourage the proper people to engage in correct public welfare offense behavior, society requires those people to have documentation (licenses, permits, registrations, and so forth).(347) Acquiring such documentation is tantamount to giving assurances that one will carry out the activity in a safe and proper manner. This is, in turn, a signal to the world at large, if only symbolically, that what appears to be a dangerous activity is relatively safe. Thus, when a person is aware of carrying out a dangerous and uncommon activity, and also is aware that the proper documentation is lacking, that person has an "evil-meaning mind" in the modem moral sense.(348)

A corollary to this proposition is that a person lacks mens rea when he reasonably(349) thinks he has the proper documentation or permission. In the regulatory context, a person might reasonably think he has permission in two situations: 1) when he reasonably believes a permit exists (even though it does not), and 2) when he correctly knows a permit exists and reasonably believes the permit allows him to conduct the activity in the manner at issue (even though it does not). However, courts have rejected both approaches.

For example, the Ninth Circuit rejected the second approach in United States v. Weitzenhoff.(350) Weitzenhoff involved a prosecution under the CWA. Defendants, managers of a sewage treatment plant, claimed to believe that their permit allowed them to discharge the quantity of sewage at issue. It did not. The jury did not have a chance to determine the honesty, let alone the reasonableness, of the defendants' belief, as the court deemed awareness of permit conditions an irrelevant issue. But if these defendants reasonably did did that the discharges were permitted, they were not aware of doing anything wrong.(351)

Freed itself represents a rejection of the first approach. The Court said that awareness of registration status was irrelevant in a National Firearms Act prosecution. Thus, a defendant charged under that Act can not introduce evidence of even a reasonable belief that the firearm was registered. Another example is possible in the context of the RCRA provision under consideration in this Article. Consider a plant foreman who is instructed to store hazardous waste in a certain manner that violates RCRA. The foreman asks management whether the plant has a permit that allows such storage and is told that it does. If this information is incorrect, the Freed approach prevents the foreman from defending by arguing even a reasonable mistake about permit status.

If regulatory crimes have a normative basis, it is difficult to justify the rejection of the "permit status" defenses in cases such as Weitzenhoff, Freed, and the hypothetical. This is so because a defendant who reasonably believes the activity is permitted is not aware of wrongdoing. To maintain consistency and jurisprudential integrity, the Court would seem to have two choices. One option is to admit that "public welfare offenses" as currently conceived do, in fact, impose strict liability; this option would probably force the Court eventually to face the implication made in Lambert that true strict liability crimes have constitutional problems.(352) The other option is to require the government to prove awareness of permit status. This option, of course, will require overruling Freed.(353) It will also require the Court to face the possibility that its ruling will make it more difficult for the government to get convictions in environmental crimes and other regulatory cases.

This problem is similar to the concern explored above in the context of awareness of the law.(354) Again, the actual threat to enforcement capabilities is probably less than what is feared. For one thing, it is not necessarily easy for a defendant to introduce convincing evidence of an honest belief that a permit existed. For example,(355) to prove the act component of a RCRA prosecution, the government will offer proof that the defendant in fact disposed of hazardous waste without a permit.(356) As with a traditional general intent crime,(357) if the jury believes the evidence, it can also infer(358) the mens rea,(359) that is, the defendant's awareness that the substance was dangerous(360) and that there was no permit.(361) The jury is likely to make this inference and thus to convict, unless the defendant's role in the operation obviously precluded him from having access to permit-status information.(362) Of Course, the defendant could try to challenge the inference by introducing affirmative evidence of an honest belief that a permit existed. To be successful, this evidence would probably have to be more than the defendant's mere claim. A defendant who merely assumed the existence of a permit is unlikely to be credible because, if the activity is dangerous, the defendant knows a permit is required.(363) The defendant's honest belief is more convincingly shown by proving actual steps to confirm permit status, but such proof will often require the defendant to take the stand and be cross-examined.

In addition, even if the jury accepts that the defendant honestly made a mistake about the permit, the government still can convict. As we have seen, jurisprudentially "public welfare offenses" are analogous to common-law "general intent" crimes. This being so, it is logical to require that mistakes of fact be reasonable to provide a defense.(364) In other words, the government should be allowed to convict by showing negligence about permit Status.(365) In many cases, the government will have few problems doing this.(366) If the defendant did not make any inquiries about permit status, it is surely unreasonable for him to believe that his activity was permitted.(367) The more difficult cases will involve situations in which the defendant did make permit-status inquiries. These cases can be divided into two categories.

First are the cases in which the defendant tried to determine permit status and did not receive an answer. In this case, the defendant knows that he does not know whether permission exists. Given the dangerousness of the activity and the central role of permission in its social acceptance, it should not be difficult to convince a jury that it was unreasonable for defendant to assume that permission existed. In fact, the situation is not far removed from one in which the defendant fails altogether to inquire about permit status.(368)

The second type of case occurs when the defendant investigated permit status and received information that a permit in fact existed. The question here will be whether it was reasonable for the defendant to depend upon this information. The answer is likely to vary with the facts--including the circumstantial evidence(369)--and the question may be close in some cases. Is it enough to ask the boss? Must the actor actually see the permit? Must he read it? Can the actor trust that the permit shown is valid, or is it necessary to check with the issuing agency? If the permit terms are unclear, who is it reasonable to consult about them? Can one rely on information from an EPA employee? What clues must an actor be alert for in determining whether information obtained from these sources is correct? While litigating these issues will be time consuming, this is not a good reason to reject the "reasonableness" approach. If awareness of permission is the issue in culpability, this is precisely where judicial resources are most valuably focused. People engaged in handling hazardous waste have a right to know how much effort they must put forth to determine whether a permit exists and what it means.

In fact, when we examine the impact of legal standards on the class of potential defendants, requiring the government to prove an unreasonable mistake about permit status makes even more sense. The choice between the strict liability Freed approach and the "general intent" reasonableness approach really reflects a policy choice about whether and when to punish people for not examining a situation before acting--that is, a choice about the value of action versus investigation.(370) The issues are perhaps more clearly illustrated with a basic, nonregulatory hypothetical.

Take, for example, a situation in which a person removes a coat from a coat rack in a restaurant. The coat belongs to someone else, and the actor is charged with taking the property "of another."(371) There may have been subtle clues in the situation to indicate that the coat was not the actor's--the feel was somewhat wrong, the color slightly off, subtle identifying markings were present or absent. The defendant, though, argues that he thought the coat was his.

If awareness of the circumstance of ownership is treated as a specific intent, the actor could overlook the clues with impunity as long as the jury believed that he honestly did so. The actor is not punished for failing to examine the situation further before acting. The law, seemingly, values the person's freedom of action more than anything else. This "specific intent" approach is, of course, not even under consideration in the public welfare offense situation.

The other extreme exists if the circumstance is treated as a strict liability element. Now the actor could have noticed the clues, examined the coat carefully--done everything a reasonable person would do. Although it was reasonable to conclude the coat was his, in fact it was not. The actor came to the wrong conclusion, and he is therefore guilty. The actor is punished for acting at all, even though he acted as carefully as he could have. In this approach, the law values protection of property more than the individual's freedom to make an efficient decision.

The middle ground exists when awareness of ownership is treated as part of the general intent. The actor can make a mistake, but it must be reasonable. He must notice the clues. He must examine the coat carefully before he puts it on and walks out of the restaurant. If he pays the kind of attention a reasonable person would pay and comes to a reasonable conclusion, he has a defense even if the coat belongs to someone else. The law is now striking a balance. It is saying that protection of property is important, but not at the cost of paralyzing the actor's ability to get on with the day.

The same type of analysis works in the context of disposal of hazardous waste. We reject a rule allowing an honest mistake about permit status (that is, treating the issue as specific intent) because society does not want people to dispose of the waste with little or no investigation of the' permit. But adopting the other extreme of strict liability is tantamount to instructing people not to dispose of hazardous waste until they have obsessively investigated permit status, or not to take on the job at all.(372) Given the importance of waste disposal to society,(373) it is more sensible to encourage people to make some investigation of permit status but to get on with the job in a relatively efficient manner, if this is so, the issue of permit status should be part of the general intent, where reasonableness is the standard.

In fact, the common law of crimes often makes reasonableness the issue when society wants a person to investigate carefully but be able to act efficiently. Over the years, and in other contexts, society has concluded that sometimes people must be permitted to engage in activities that are not only risky, but downright harmful to life or property.(374) Killing in self-defense is an example.(375) Someone who kills in self-defense has engaged in a morally wrong activity (killing), but has permission to do so self-defense). Of course, killing in self-defense is different from handling hazardous waste. Among other things, society needs hazardous waste handling to occur on a much broader scale. The law reflects this difference in scale by how it treats the circumstance of permission--as an element of the crime or as an extrinsic defense.(376)

Where permission is relatively unusual, as in self-defense, it is not an element of the crime; it is a collateral issue on which the defendant may bear the burden of production or persuasion.(377) Where permission is relatively common, as in handling hazardous waste, it is an element of the crime and the prosecution has to disprove its existence.(378) Although the circumstance of permission is placed differently for efficiencies of proof, the circumstance has the same substantive function, making an otherwise wrongful activity acceptable. In the self-defense context, a defendant is innocent if he reasonably believes permission to kill exists.(379) There is no particular reason to depart from this standard of culpability when permission is treated as an element of the crime.

2. A Complication: The Clean Water Act

The previous section concluded that, in ambiguous "public welfare offenses," the government should be required to prove the defendant's knowledge of all the facts, including whether or not permission existed to engage in the regulated activity. This conclusion is a corollary to using the "background rules of the common law"(380) to interpret public welfare offense crimes. However, this conclusion raises a new problem for a statute such as the CWA.(381)

The "criminal penalties" provision of the CWA has two subsections. The first punishes "knowing" violations by imposing felony sanctions.(382) Under this section, the government would have to prove that the defendant's factual mistakes were unreasonable. An unreasonable mistake is a negligent mistake, and herein lies the problem. The other subsection of the "criminal penalties" provision punishes "negligent" violations by imposing misdemeanor sanctions for a first offense.(383) Applying the common-law-based interpretation of mens rea to the CWA, then, seems to erase the only difference between the lesser and greater criminal provisions. When Congress added the current criminal provisions to the CWA, it used the terms "knowingly" and "negligently" to distinguish between more and less culpable violators.(384) The previous discussion demonstrates that this distinction does not make sense in terms of common law. It does, however, make sense in terms of the Model Penal Code (MPC),(385) and herein lies a major problem in interpreting federal regulatory crimes. The MPC is quite explicit about mental state. The MPC uses only four carefully defined mental-state words.(386) It assumes that the government must prove one of these mental states for every conduct, circumstance, or result element described in the definition of a crime.(387) To determine which mental state "goes with" each act element, the MPC sets forth a comprehensive interpretive protocol.(388) Adoption of the MPC's approach requires adoption of all three aspects: the definitions, the assumption, and the protocol. A legislature using the MPC approach establishes a mental state requirement through its use of both the mental-state words(389) and other techniques of legislative drafting, such as commas, semi-colons, and subdivisions.(390) If the legislature is basing crime definitions on notions of traditional morality, its drafting can reflect these notions. However, the MPC is not, in essence, a normative system. That is, while the MPC presumes a legislature will require awareness of something,(391) it does not presume the legislature will require awareness of moral wrongdoing.(392) In its essentially descriptive nature, then, the MPC is the diametric opposite of the assumption made by the common law and the Court--that awareness of moral wrong is the essence of criminality.

While neither Congress nor the Supreme Court has officially adopted the MPC approach, both have flirted with it. As illustrated by the CWA, Congress has used mental-state words as though they carried MPC meanings. The Court, for its part, has occasionally used MPC definitions(393) and the assumption that every act element has a separate--and possibly different--mental-state requirement.(394) However, rather than turn to the MPC's interpretive protocol to determine the appropriate requirement, the Court turns to traditional touchstones such as the goal of the legislation.(395) Even more schizophrenically, the Court continues to assert the normative concept of mens rea as the final arbiter of legislative intent.(396) The result is total confusion.(397) Congress and the Court do not agree upon one approach, and so, do not collaborate in the drafting-interpreting project.(398) Furthermore, on its own, each institution varies between the two paradigms, picking and choosing elements from which ever one meets the current need. The Court's recent mental-state cases may indicate that it has decided to reaffirm its commitment to common-law-based interpretation, at least until Congress formally adopts the MPC.(399) If this is so, the Court will want to respect Congress's distinction between greater and lesser culpability, but do so in common-law terms. To avoid interpreting both subsections as criminalizing the same situation,(400) the Court might conclude that, in the context of this particular statute, "knowingly" means specific intent and "negligently" means general intent. That is, in order to obtain a conviction for a "knowing" violation under section 1319(c)(2), the government would have to prove more than awareness of all the facts including permit status; it would also have to prove an awareness that the activity was contrary to the law. In other words, the government would no longer get the benefit of a conclusive presumption that the defendant was aware of the regulation, rather, it would have to prove such awareness.

The problem with this solution is that it could make it harder for the government to get a conviction under subsection (c)(2). Of course, the Court has downplayed the additional burden that specific intent presents in the context of "innocent activity" crimes.(401) However, in some situations it may be impossible for the government to prove specific intent in a CWA prosecution. Where this is so, the inability may indicate that felony sanctions are inappropriate. Nevertheless, the water pollution laws can still be enforced criminally through the general-intent misdemeanor provisions.(402)

V. WHO'S IN CHANGE, CONGRESS OR THE COURTS?

The Court's use of the "background rules of the common law"(403) to infer a mens rea requirement in felony regulatory crimes is an exercise in statutory interpretation.(404) Congress can achieve a different result by clearly stating that mens rea is not a requirement for a particular felony provision.(405) Absent such explicit direction, the Court will interpret the statute to include the mental state element it considers necessary to mens rea.(406) It is fair to say that, in adopting this approach, the Court, without actually engaging in constitutional judicial review,(407) is inserting its own values into the interpretation of regulatory crime statutes.(408) Consequently, it is legitimate to ask the source of the Court's authority to engage in this process.

The issue is fairly easy to resolve when both the text and the legislative history of the statute are ambiguous about mental state, as they arguably are under RCRA's section 6928(d)(2)(a).(409) This is because when courts apply statutes, they must come up with some interpretation. If Congress has given no clear guidance, it is logical and necessary for the courts to fill in the gaps as they think best. Since Congress has not adopted the MPC, it makes some sense for the Court to ground its interpretation in the common-law tradition.

Resolving the problem of the Court's authority would also be easy if the Court were dealing with a statute that unambiguously required a mental state that did not comport with the Court's notion of mens rea.(410) The Court has hinted that such statutes might be unconstitutional.(411) If the Court faced those issues and declared the statute to be unconstitutional absent normative notions of mens rea, its authority to do so would not be open to question.(412)

The question of the Court's authority is most acute when, as with the MBTA, the text is ambiguous but the legislative history indicates Congress's intention to require a mental state that does not amount to the Court's notion of mens rea. The authority issue arises if the Court ignores the legislative history and interprets the statute according to its mens rea protocol.(413) In fact, the issue may be presented soon because, despite language to the contrary in Liparota,(414) the Court has more recently suggested that it would adopt this very approach.

The suggestion came in the course of the Court's discussion in Staples, the recent National Firearms Act case.(415) There, the Court said that "if Congress thinks it necessary to reduce the Government's burden at trial to ensure proper enforcement of the Act, it remains free to amend [it] by explicitly eliminating a mens rea requirement."(416) This approach sounds a great deal like a rule requiring a "`clear statement' on the face of the statute to rebut a policy presumption the court has created."(417) Such "clear statement rules" are increasingly used by the current Court.(418)

Where does the Court get authority to require Congress to make a clear statement? While a thorough exploration of this complex issue is outside the scope of this Article, some brief observations are in order. To begin, it is instructive to consider the Court's possible motives for using a "clear statement" requirement. For one, it is possible that the Court is using the approach to avoid actually deciding whether or not mens rea is constitutionally required. This possibility seems valid since clear statement rules are one way to avoid invalidating a statute while still protecting any constitutional norms that might be involved,(419) such as norms protecting the rights of individuals.(420) However, there are other more conventional ways of achieving this same end.(421) In fact, the Court is more likely to use rules of construction such as a "clear statement rule" to protect constitutional structures such as federalism than to protect individual rights.(422) This fact leads to the suspicion that the Court could be using the "clear statement" requirement to assert that the judiciary has a role in the development of federal criminal law outside the context of constitutional judicial review--that is, to assert its own values into the process of crime creation.(423) This interpretation is also supported by the fact that courts often resort to common-law principles to resolve structural issues,(424) and by recent judicial assertions about the importance of court-made law.(425)

Whichever of these motives is correct, both possibilities reflect a Supreme Court that is checking Congress's legislative power without actually declaring a statute unconstitutional. This situation gives some cause for concern, as there are good reasons to question the legitimacy of the Court's approach. For one thing, the Court itself long ago eschewed reliance on the common law of crimes specifically as a way to emphasize Congress's legislative role in the constitutional scheme.(426) More broadly, however, even outside the context of criminal law, it can be strongly argued that the Constitution limits the Court's anti-majoritarian role to the practice of constitutional judicial review.(427) From this perspective, unless the Court declares a properly enacted statute to be unconstitutional, it has no business substituting its values for those of the majority as reflected by Congress.(428) Of Course, there are also those who support an increased sub-constitutional role for the federal courts.(429) Ultimately, the insertion into regulatory crimes of the Court's version of normative principles may be a function of the Court's willingness to face constitutional issues on the one hand and the prevailing view of political theory on the other.

VI. CONCLUSION

This Article has addressed and offered some solutions to the problem of mental state in federal regulatory crimes. Until recently, such crimes were widely considered to impose "strict" criminal liability. However, the latest Supreme Court cases have taken a traditional, common-law, normative approach that reads a "specific intent" requirement into statutes criminalizing "innocent" activities. This Article suggests that the same approach has influenced the Court's treatment of "public welfare offenses," and that these can be analogized to traditional "general intent" crimes. Although the Court's analysis is incomplete and not coherently articulated, careful consideration shows that the common law can provide an insightful source of principles that address the complexities of mental state in an intellectually satisfying and consistent manner. While use of common-law principles may make convictions more difficult to come by, it will ensure that convictions that do occur are consistent with the moral stigma that traditionally accompanies a felony label. Nevertheless, the Court still has problems to resolve before common-law principles are fully integrated into the interpretation of regulatory crimes. Unless Congress clearly indicates that the common-law approach is misplaced, the Court will likely proceed to address these problems on a case-by-case basis. If Congress does clearly indicate a contrary approach to regulatory mental state--one that eliminates a normatively based mens rea--the Court will have to decide at last whether awareness of moral wrongdoing is a constitutionally required condition for conviction of serious crimes. (1) Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974, 988 (1932). (2) See, eg., infra part II.A-B (discussing how the courts have struggled to interpret the mental state requirements in the criminal provisions of the Migratory Bird Treaty Act, 16 U.S.C. [sections] 707(b) (1994), and the Resource Conservation and Recovery Act, 42 U.S.C. [sections] 6928(d) (1988)). Later parts of this Article also discuss aspects of the problem as it exists in the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. [sections] 1319(c)(2) (1988 Supp. V 1993); see infra parts IV.A (discussing difficulties in determining whether a statute prohibits a "dangerous" activity), IV.B.2 (discussing problems in interpreting what Congress meant by using the word "knowingly" in the statute).

Courts have dealt with a similar issue in other environmental crimes statutes. See Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. [sections] 1361(b)(1)-(2) (1994) (knowing violation of any provision or subchapter is a misdemeanor); United States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal.) interpreting the knowledge element of FIFRA), aff'd per curiam on other grounds, 578 F.2d 259 (9th Cir. 1978); see also Clean Air Act (CAA), 42 U.S.C. [sections] 7413(c)(1) (1988 & Supp. V 1993) (knowing violation of various provisions is a felony); United States v. Buckley, 934 F.2d 84, 86-89 (6th Cir. 1991) (stating that the CAA requires knowledge only of unlawful emissions, not knowledge of the statute or of the hazards that emissions pose); the Rivers and Harbors Act (Refuse Act), 33 U.S.C. [sections] 407 (1988) (no mental state word is included in the Act); United States v. White Fuel Corp., 498 F.2d 619, 622 (1st Cir. 1974) (noting that the government does not have to prove mens rea for a Refuse Act violation).

While no reported cases exist, other environmental protection statutes may also present the problem of interpreting mental state requirements. See, e.g., the Toxic Substances Control Act, 15 U.S.C. [sections] 2615(b) (1994) (knowing or willfull violation of any provision of section is a misdemeanor); the Endangered Species Act, 16 U.S.C. [sections] 1540(b) (1994) (knowing violation of any provision of chapter, permit, or certain regulations is a misdemeanor); the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. [sections] 1415(b)(1)-(2) (1988 & Supp. V 1993) (knowing violation of subchapter, regulations, or permit is a misdemeanor, or a felony if medical wastes are involved); the Safe Drinking Water Act (Public Health Service Act), 42 U.S.C. [sections] 300j-23(c) (1998) (knowing violations constitute a felony); the Federal Land Policy and Management Act, 43 U.S.C. [sections] 1733(a) (1988 & Supp. V 1993) (knowing and willful violation of the regulations is a misdemeanor).

Supreme Court cases have addressed the issue outside of the environmental and natural resources area. See cases discussed infra part III.C. (3) A separate but related issue is the definition of the terms "know," "knowingly," "with knowledge," and the like. One commentator gives five common meanings of knowledge" as a mens rea requirement ... : (1) Guilty knowledge. Awareness of the fact as a result of personal observation. (2) Guilty belief which is correct. (3) Guilty avoidance of knowledge.... (4) Bona-fide belief contrary to fact resulting from criminal negligence.(5) Bona-fide belief contrary to fact but based upon reasonable grounds (or resulting from only slight negligence). Rollin M. Perkins, Criminal Law 779 (2d ed. 1969). (4) See discussion infra part II.A-B (showing that courts have resorted to these traditional devices but still have not agreed on an interpretation). (5) See infra note 10 (explaining that much of the confusion results from the tension between a "normative" and a "descriptive" approach to mental state). (6) See generally Dick Thomburgh, Criminal Enforcement of Environmental Laws--A National Priority, 59 Geo. Wash. L. Rev. 775 (1991) (commenting on the growing need for regulatory criminal enforcement). (7) In addition, the mental state issue has implications for other related criminal law doctrines, such as the "responsible corporate officer" doctrine. United States v. Dotterweich, 320 U.S. 277, 285, reh'g denied, 320 U.S. 815 (1943) (reinstating the conviction of a pharmaceutical company president under the Federal Food, Drug, and Cosmetic Act for his company's shipment of misbranded drugs); United States v. Park, 421 U.S. 658, 673-74 (1975) (concluding that the government under the Federal Food, Drug, and Cosmetic Act demonstrates a prima facie case with "evidence sufficient to warrant a finding . . . that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so" ; see generally, e.g., Kathleen F. Brickey, Criminal Liability of Corporate Officers for Strict Liability Offenses--Another View, 35 Vand. L. Rev. 1337 (1982) (discussing the relationship between corporate officer liability and the mental state requirement of the criminal statute). As part of its reasoning in Dotterweich, the Court inferred from the imposition of strict liability that corporate officers have a duty to seek out and prevent violations within their scope of corporate responsibility. 320 U.S. at 281-85. Hence, it appears that interpreting a regulatory statute as a "strict liability" statute may be basic to the "responsible corporate officer" doctrine. (8) See infra parts II.A-B, III.B-C. (9) The term comes from the phrase actus non facit reum nisi mens sit rea, or, an act does not create guilt without a guilty mind. See Sayre, supra note 1, at 974. The concept of mens rea became important in the seventeenth and eighteenth centuries, although the origin of the maxim itself is unclear. Stanislaw Frankowski, Mens Rea and Punishment in England: In Search of interdependence of the Two Basic Components of Criminal Liability (A Historical Perspective), 63 U. Det. L. Rev. 393, 421 (1986). Frequently used synonyms are "scienter" and "criminal intent." Eg., Holdridge v. United States, 282 F.2d 302, 309 (8th Cir. 1960); Perkins, Supra note 3, at 744, 771; Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law 192 (1972), Gerhard O.W. Mueller, On Common Law Mens Rea, 42 Minn. L. Rev. 1043, 1051-52 (1958). (10) Much of the confusion in the case law and commentary exists because not all lawyers and judges assign the term "mens rea" a normative meaning. A term is used normatively when it implies a moral value judgment about blameworthiness. George P. Fletcher, Rethinking Criminal Law 396 (1978). In its traditional sense, mens rea has a morally based meaning. See infra part III.A (discussing different definitions of mens rea). However, a number of modem lawyers give the term a "descriptive" meaning that implies no moral judgment. See Fletcher, Supra, at 396-401 (defining the "descriptive" approach and discussing the "tensions ... between the descriptive and normative uses of the same terms," and categorizing a number of well-known commentators according to whether they take a descriptive or a normative view of mental state issues); cf. Harry W. Jones, An Invitation to Jurisprudence, 74 Colum. L. Rev. 1023, 1035-36 (1974) (comparing two approaches to judicial decision-making: Dewey's normative and Holmes's descriptive approach); Mueller, supra note 9, at 1052 (citing confusion between mens rea as a normative concept and "the mental process ingredient of act"). In addition, confusion exists in use of mental-state terms because the normative and descriptive approaches have not developed separate vocabularies; thus, it is often difficult to understand whether a lawyer is using a term with the normative or the descriptive meaning. See Fletcher, Supra, at 396-401 (discussing the "tensions ... between the descriptive and normative uses of the same terms").

The existence of these two fundamentally different approaches to mens rea has contributed to the Supreme Court's inconsistent use of the phrase, e.g., Staples v. United States, 114 S. Ct. 1793, 1814 n.25 (1994) (Stevens, J., dissenting), and to the failure of Congress and the Court to collaborate in the enterprise of drafting and interpreting statutes. See infra part IV.B.2.

Many commentators writing on mental state in regulatory crimes seem to take the morally neutral, "descriptive" approach. Thus, they assume that any type of knowledge or awareness automatically amounts to mens rea. Examples of this include E. Devitt et al., Federal Jury Practice and Instructions [paragraph] 17A.01 (4th ed. 1992); Frederick W. Addison, III Elizabeth E. Mack, Creating an Environmental Ethic in Corporate America: 7he Big Stick of Jail Time, 44 Sw. L.J. 1427, 1435 (1991) (citing Black's Law Dictionary 1207 (5th ed. 1979)); M. Diane Barber, Fair Waning: The Deterioration of Scienter Under Environmental Criminal Statutes, 26 Loy. L.A. L. Rev. 105, 123-24 (1992); Jane F. Barrett & Veronica M. Clarke, Perspectives on the Knowledge Requirement of Section 6928(d) of RCRA after United States v. Dee, 59 Geo. Wash. L. Rev. 862, 872-73 (1991); Andrea M. Fike, A Mens Rea Analysis for the Criminal Provisions of the Resource Conservation and Recovery Act, 6 Stan. Envtl. L.J. 174, 176-80 (1986-87); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1392 n.2 (1986), Truxtun Hare, Comment, Reluctant Soldiers: The Criminal Liability of Corporate Officers for Negligent Violations of the Clean Water Act, 138 U. Pa. L. Rev. 935, 937, 951-52, 958 (1990); Christopher Harris et al., Criminal Liability for Violations of Federal Hazardous Waste Law: The "Knowledge" of Corporations and Their Executives, 23 WAKE FOREST L. Rev. 203, 215 n.75, 219 (1988); Robert A. Milne, Comment, The Mens Rea Requirements of the Federal Environmental Statutes: Strict Criminal Liability in Substance But Not Form, 37 Buff. L. Rev. 307, 324-28 (1988); Alan Saltzman, Strict Criminal Liability and the United States Constitution: Substantive Criminal Law Due Process, 24 Wayne L. Rev. 1571, 1577-1602 (1978); Richard G. Singer, 7he Myth of the Doctrine of the Responsible Corporate Officer, 6 Toxics L. Rptr. 1378, 1379 (1992) [hereinafter Singer I], Richard G. Singer, The "Responsible Corporate Officer Doctrine" in Environmental Cases, 6 Toxics L. Rptr. 1405, 1407 (1992) [hereinafter Singer II]; Rebecca S. Webber, Element Analysis Applied to Environmental Crimes: What Did They Know and When Did They Know It?, 16 B.C. Envtl. Aff. L Rev. 53, 61 (1988). (11) For example, in 1985 the Court issued a major decision in the area, Liparota v. United States, 471 U.S. 419 (1985). However, of the thirteen circuit court cases to subsequently consider RCRA, only four mentioned Liparota. See, e.g., United States v. Self, 2 F.3d 1071, 1090-91 (10th Cir. 1993); United States v. Dean, 969 F.2d 187, 192 (6th Cir. 1992), cert. denied, 113 S. Ct. 1852 (1993); United States v. Speach, 968 F.2d 795, 796 (9th Cir. 1992); United States v. Baytank Inc., 934 F.2d 599, 612-13 (5th Cir. 1991). Furthermore, there is only one Migratory Bird Treaty Act case that cites Liparota: United States v. Engler, 806 F.2d 425, 432, 437-38 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987). (12) See discussion infra part IV.A-B. (13) See infra note 172 (noting that the Court's use of the term "public welfare offenses" differs from that of traditional commentators). (14) See supra note 10. (15) 42 U.S.C. [sections][sections] 6901-6992k (1988 & Supp. V 1993). (16) Fike, supra note 10, at 174. (17) Frederick R. Anderson et al., Environmental Protection: Law and Policy 558 (1984). (18) 42 U.S.C. [sections] 6928(d) (1988 & Supp. V 1993). RCRA also contains criminal sanctions for anyone who knowingly endangers a human being by violating any of the regulatory provisions. Id. [sections] 6928(e)-(f). This Article will not address the "knowing endangerment" provision itself, even though the provision builds upon and may be affected by the other subsections that are discussed. (19) Id. [sections] 6928(d)(1)-(2). Subsections (d)(1) and (2) deal with various aspects of the domestic handling of hazardous waste. The other subsections deal with omitting or falsifying certain information in specified documents, id. [sections] 6928(d)(3), violating record-keeping requirements while dealing with hazardous waste or nonhazardous used oil, id. [sections] 6928(d)(4), knowingly transporting hazardous waste or nonhazardous used oil without a manifest, id. [sections] 6928(d)(5), exporting hazardous waste without complying with the subsection, id. [sections] 6928(d)(6), and violations in storing, treating, or transporting nonhazardous used oil, id. [sections] 6928(d)(7). (20) Id. [sections] 6928(d)(1), (2)(A)-(B). These provisions authorize criminal sanctions for any person who

(1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit ...,

(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter--

(A) without a permit ... ; or

(B) in knowing violation of any material condition or requirement of such a permit. Id. (emphasis added). (21) United States v. Laughlin, 10 F.3d 961, 965 (2d Cir. 1993), cert. denied, 114 S. Ct. 1649 (1994); United States v. Dean, 969 F.2d 187, 189 (6th Cir. 1992), cert. denied, 113 S. CL 1852 (1993); United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 40 (1st Cir. 1991); United States v. Baytank, Inc., 934 F.2d 599, 611 (5th Cir. 1991); United States v. Greer, 850 F.2d 1447, 1451-52, reh'g denied, 860 F.2d 1092 (11th Cir. 1988); United States v. Johnson Towers, Inc., 741 F.2d 662, 667-68 (3d Cir. 1984), cert. denied, 469 U.S. 1208 (1985). (22) For example, the defendant must know the substance being handled was toluene, not milk. (23) United States v. Self, 2 F.3d 1071, 1091 (10th Cir. 1993) (holding that "the government was required to prove that the Defendant knew the material was ... harmful to [people] or the environment" under RCRA); United States v. Goldsmith, 978 F.2d 643, 646 (11th Cir. 1992) (concluding that the "defendant need not know the exact identity of the chemicals disposed of, but only that the chemicals have `the potential to be harmful'"); Baytank, 934 F.2d at 613 (concluding that the defendant needs to know that the chemicals he has stored are potentially harmful and not necessarily "hazardous under the RCRA"); MacDonald Walson, 933 F.2d at 42 (finding there was sufficient evidence to support the jury's determination that the defendants had knowledge that the substance they were handling was hazardous). For other cases holding the same, see United States v. Dee, 912 F.2d 741, 745-46 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990); see also Greer, 850 F.2d at 1452 (concluding that there was sufficient evidence to show that the defendant knew his dumping was harmful to the environment or others); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1505 (11th Cir. 1986) (holding that there was sufficient evidence to show that the defendant "knowingly transported hazardous waste"); Johnson & Towers, 741 F.2d at 668 (holding that "knowingly" as used in RCRA in "subsection (A), must also encompass knowledge that the waste material is hazardous"); United States v. Gratz, No. 92-141, 1993 U.S. Dist. LEXIS 629, at *5 (E.D. Pa. Jan. 25, 1993) (noting that the government had the burden of proving that the defendant knew he was dealing with hazardous waste and could not rely simply on the fact that it was listed as such). (24) See United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994) (holding that the government does not have to prove defendant's knowledge of the permit requirement), Laughlin, 10 F.3d at 965 (holding that the government did not have to prove defendant's awareness that the regulations listed the substance as "hazardous"), Goldsmith, 978 F.2d at 645 (determining that the government does not have to prove that a defendant was aware of the Environmental Protection Agency's classification of a particular chemical as "hazardous waste"); Dean, 969 F.2d at 190-192 (concluding that knowledge of the permit requirement is not an element of a RCRA prosecution); Baytank, 934 F.2d at 613 (holding that the prosecutor did not have to prove the defendant's knowledge that the substance he was storing was listed by RCRA as "hazardous waste"); Dee, 912 F.2d at 745 (holding the government did not need to prove defendants knew "that a regulation existed listing and identifying [their chemicals] as RCRA hazardous wastes"); cf. Hayes Int'l, 786 F.2d at 1503 (concluding that neither the defendant's ignorance of RCRA permit requirement nor classification of paint as a hazardous waste would provide a defense to a RCRA prosecution). Notably, the courts in these cases are addressing the defendant's knowledge of noncriminal laws and regulations. On this issue, the Third Circuit stands alone in holding that in a RCRA prosecution the government must prove the defendant's awareness of noncriminal law such as the permit requirement. See Johnson & Towers, 741 F.2d at 669 (requiring the government to prove that each defendant knew the company was required to have a permit but did not). Although Johnson Towers was an early case, it is still good law in the Third Circuit. Gratz, 1993 U.S. Dist. LEXIS at *5 (citing Johnson & Towers).

The courts have not addressed whether a defendant had to know the alleged conduct was criminal; however, the criminal law does not normally recognize defenses based on mistake or ignorance about the criminality of conduct. See, e.g., Joshua Dressler, Undertanding Criminal Law [sections] 13.01-.02 (1987) (noting the general rule that ignorance or mistake as to criminality is a defense only to the extent that an "official interpretation" exception is recognized).

Commentators debate whether RCRA's legislative history supports an awareness of the law requirement. Compare Fike, supra note 10, at 188-92 (arguing that RCRA's legislative history does not support an awareness of the law requirement) with Kevin A, Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes for a Flawed System, 7 Toxics L. REP. 994, 1001 (1993) (arguing that RCRA's legislative history reflects some support for an awareness of the law requirement). (25) United States v. Speach, 968 F.2d 795, 796 (9th Cir. 1992), MacDonald & Watson, 933 F.2d at 4748 (dictum); Hayes Int'l, 786 F.2d at 1503-05. (26) See Self, 2 F.3d at 1091 ("[T]he second `knowing' requirement of [sections] 6928(d)(2)(B) ensures that a good faith belief that a permit allows [the activity] ... is a defense to a criminal charge."). (27) The Third Circuit ruled on this issue in Johnson & Towers when it held that the term "person" in section 3008(d)(2)(A) was not limited to owners and operators. 741 F.2d at 667. The court reasoned that limiting potential defendants to owners and operators would undermine the purposes of the legislation because others also have responsibilities for handling regulated wastes. Id. This expanded definition of the term "person" left open the possibility that even low-level employees, who were not themselves in a position to obtain the necessary permit or know one was required, could be found guilty of violating section 3008(d)(2)(A). Id. The court concluded that it "would be arbitrary and nonsensical" to convict such persons without requiring proof that they knew a permit was lacking. Id. at 668. In support of its position, the court stated the following:

It is unlikely that Congress could have intended to subject to criminal prosecution those persons who acted when no permit had been obtained irrespective of their knowledge (under subsection (A)), but not those persons who acted in violation of the terms of a permit unless that action was knowing (subsection (B)). Thus we are led to conclude either that the omission of the word "knowing" in (A) was inadvertent or that "knowingly" which introduces subsection (2) applies to subsection (A). Id.

The court also pointed out that the requirement did not place a heavy burden on the government because it could use the defendants' positions in the company as circumstantial evidence of their knowledge. Id. at 669-70.

The Fifth Circuit has also ruled that knowledge of permit status is required, although it has not explained its reasoning. See Baytank, 934 F.2d at 613 (concluding that in order to be found guilty, a defendant must have known that he did not have the permit required by section 3008(d)(2)(A)). (28) In United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990), the Ninth Circuit refused to read the word "knowing" into section 3008(d)(2)(A) and pointed out that

The absence of the word "knowing" in subsection (A) is in stark contrast to its presence in the immediately following subsection (B). The statute makes a clear distinction between non-permit holders and permit holders, requiring in subsection (B) that the latter knowingly violate a material condition or requirement of the permit. To read the word "knowingly" at the beginning of section (2) into subsection (A) would be to eviscerate this distinction. Thus, it is plain that knowledge of the absence of a permit is not an element of the offense defined by subsection (A). The statute is not ambiguous. On the contrary, "[t]he language is plain and the meaning is clear. Our statutory construction inquiry, therefore, is at an end." Id. at 1037 (citation omitted).

The Ninth Circuit went on to state that the Third Circuit's approach violated basic rules of statutory interpretation by reducing the word "knowledge" in (2)(B) to surplusage. Id. at 1038. The Ninth Circuit also found it logical that the two subsections,(2)(A) and (2)(B), required different mental states as to permit status. It explained:

The statute requires knowledge of violation of the terms of a permit under subsection (B) but omits knowledge that a permit is lacking as an element of disposing of hazardous waste without a permit under subsection (A). There is nothing illogical about this. Knowledge of the location of hazardous waste, from its generation through its disposal, is a major concern of RCRA. Those who handle such waste are, therefore, affirmatively required to provide information to the EPA in order to secure permits. Placing this burden on those handling hazardous waste materials makes it possible for the EPA to know who is handling hazardous waste, monitor their activities and enforce compliance with the statute. On the other hand, persons who handle hazardous waste materials without telling the EPA what they are doing shield their activity from the eyes of the regulatory agency, and thus inhibit the agency from performing its assigned tasks. Id. at 1038-39.

Other courts have adopted the Hoflin conclusion that the government need not prove a defendant's knowledge as to permit status. Laughlin, 10 F.3d at 966 (adopting the reasoning of Hoflin and the majority of circuits); Dean, 969 F.2d at 191 (holding that RCRA's plain language was determinative and that the Hoflin court adequately addressed the reasons Congress may have had for drafting the statute not to require a showing of defendant's knowledge of permit status).

For criticism of the Ninth Circuit's approach and its conclusion that section 3008(d) is not ambiguous, see Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S. C. [sections] 6928, 6 Tul. L.J. 187, 215-229 (1993). (29) 16 U.S.C. [sections][sections] 703-712 (1994). (30) The Act sets out prohibited activities in 16 U.S.C. [sections][sections] 703, 705. Both sections pertain to birds (and their parts, nests, and eggs) that are included in certain conventions between the United States and other countries. Id. [sections][sections] 703, 705. Section 703 prohibits individuals from engaging in a long list of activities that include capturing, killing, possessing, and exchanging protected birds or items. Id. [sections] 703. Section 705 prohibits individuals from shipping, transporting, or importing the birds when capturing, killing, or transporting them is unlawful in their place of origin. Id. [sections] 705. (31) See id. [sections] 703 (prohibiting the taking, killing, or possession of migratory birds "except as permitted by regulations" ; id. [sections] 712 (authorizing the Secretary of Interior to issue regulations necessary to implement treaties); 50 C.F.R. [subsections] 13.1-.50 (1994) (regulating permit procedures in general), 14.1-.23 (regulating imports, exports, and transportation of wildlife), 20. 1-.155 (regulating migratory bird hunting), 21.1-.30 (regulating migratory bird permits), 32.1-.8 (regulating hunting and fishing in wildlife preserves). (32) 16 U.S.C. [sections] 707(b)(1)-(2) (1994). (33) Id. [sections] 707(a). (34) The felony provisions were added by amendment in 1960, but no scienter requirement was included. Act of Sept. 8, 1960, Pub. L. No. 86-732, 74 Stat. 866 (1960), reprinted in 1960 U.S.C.C.A.N.N. 3459 (codified as amended at 16 U.S.C. [sections] 707 (1994)); United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987). The Sixth Circuit opined that "[i]t [was] quite likely that Congress omitted to require proof of scienter due to oversight." United States v. Wulff, 758 F.2d 1121, 1124 n.1 (6th Cir. 1985). (35) See infra note 288 and accompanying text (discussing section 703 of the Nhgratory Bird Treaty Act). (36) United States v. Chandler, 753 F.2d 360, 363 (4th Cir. 1985) (holding defendants liable for hunting migratory birds in a baited area in violation of the MBTA); United States v. Jarman, 491 F.2d 764, 766, 768 (4th Cir. 1974) (holding defendants liable for shooting migratory birds over a baited area within the prohibited 10-day period following removal of the bait); United States v. Ireland, 493 F.2d 1208, 1208-09 (4th Cir. 1973) (per curiam) (holding defendant liable for "aiding and abetting the taking of migratory birds with the aid of bait on and over a baited area? even though the defendant may not have been the one to shoot the birds or bait the area); United States v. Sparre, 339 F.2d 495, 495 (4th Cir. 1964) (per curiam) (convicting defendant for hunting migratory birds in a baited area). Other circuit courts have also imposed liability on defendants who hunted migratory birds in baited areas. See, eg., United States v. Sylvester, 848 F.2d 520, 525 (5th Cir. 1988); United States v. Manning, 787 F.2d 431, 433 (8th Cir. 1986); United States v. Cadett, 747 F.2d 1102, 1103, 1105 (6th Cir. 1984), cert. denied, 471 U.S. 1074 (1985); United States v. Brandt, 717 F.2d 955, 956-59 (6th Cir. 1983); United States v. Delahoussaye, 573 F.2d 910, 912-13 (5th Cir. 1978); United States v. Green, 571 F.2d 1, 1-2 (6th Cir. 1977); United States v. Wood, 437 F.2d 91, 92 (9th Cir. 1971).

In addition, various district courts have also decided "baited fields" cases. See, e.g., United States v. Ardoin, 431 F. Supp. 493, 494 (W.D. La. 1977) (holding defendant liable for hunting migratory birds in a baited area), United States v. Bryson, 414 F. Supp. 1068, 1073-74 (D. Del. 1976) (finding defendant not guilty of hunting migratory birds in violation of the MBTA because he had no knowledge of, or connection with, the corn spill that attracted the geese to the area in which he was hunting); United States v. Swann, 377 F. Supp 1305, 1308 (D. Md. 1974) (affirming defendant's conviction by a magistrate for assisting the illegal taking of migratory birds through the use of bait); United States v. Tarmon, 227 F. Supp. 480, 482 (D. Md. 1964) (finding two out of four defendants guilty of hunting migratory birds in a baited area); United States v. Schultze, 28 F. Supp. 234, 235-36 (W.D. Ky. 1939) (finding defendants guilty of taking migratory birds with the aid of bait); United States v. Reese, 27 F. Supp. 833 (W.D. Tenn. 1939) (holding that the government is not required to allege or prove defendant's knowledge of the bait under the MBTA).

Outside of the "baited field" area, one hunting case involved regulations regarding the tagging of birds. United States v. Ray, 488 F.2d 15, 17-18 (10th Cir. 1973) (affirming defendant's conviction for not tagging nine migratory game birds at his campsite). Another case involved hunting and killing wild ducks from a powerboat. United States v. Olson, 41 F. Supp. 433 (W.D. Ky. 1941). (37) Eg., United States v. Rollins, 706 F. Supp. 742, 743-44 (D. Idaho 1989) (farmer applied pesticide to grainfield, killing birds that fed upon it). An exception to the notion that the defendant is often the worker responsible for putting the pesticides in fields is found in United States v. FMC Corp., where the defendant, a pesticide manufacturer, was found to have pesticide present in its run-off ponds. 572 F.2d 902, 905, 908 (2d Cir. 1978) (holding defendant strictly liable under the MBTA). (38) Eg., United States v. Corbin Farm Serv., 444 F. Supp. 510, 531-32 (E.D. Cal.), aff'd per curiam, 578 F.2d 259 (9th Cir. 1978) (poisoning is a form of killing and is therefore prohibited). (39) United States v. Engler, 806 F.2d 425, 427 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987); United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir. 1985); United States v. Hamel, 534 F.2d 1354, 1355 (9th Cir. 1976) (per curiam); Rogers v. United States, 367 F.2d 998, 999 (8th Cir. 1966), cert. denied, 386 U.S. 943 (1967); United States v. St. Pierre, 578 F. Supp. 1424, 1425 (W.D.S.D 1983). (40) 42 U.S.C. [sections] 6928(d)(1)-(2) (1988). (41) See supra note 34 (discussing the MBTA's legislative history). (42 )See supra note 9 (explaining that the courts sometimes use the synonyms mens rea or criminal intent for scienter). (43) Most of the courts interpreting the MBTA defined mens rea or scienter as awareness of the circumstance that made the activity unlawful. In hunting cases in which the defendants knew that hunting would affect migratory birds, the issue was whether the defendants had to know of the presence of bait or decoys (the affecting medium). See United States v. Chandler, 753 F.2d 360, 363 (4th Cir. 1985) (holding that in a baited field case, "a connection of the offender with the bait" is not required (citation omitted)); United States v. Jarman, 491 F.2d 764, 766-67 (4th Cir. 1974) (holding that scienter is not required for a violation under the MBTA); see also United States v. Ardoin, 431 F. Supp. 493, 495 (W.D. La. 1977); United States v. Schultze, 28 F. Supp. 234, 236 (W.D. Ky. 1939); United States v. Reese, 27 F. Supp. 833, 836 (W.D. Tenn. 1939). In the agriculture situation in which the defendants knew of the affecting medium, the issue was whether defendants had to know the pesticide's effect on birds. United States v. Rollins, 706 F. Supp. 742, 744-45 (D. Idaho 1989) (implying that scienter amounted to awareness that pesticide would harm birds). Courts discussing scienter in the commercial context rarely address the question of what knowledge is encompassed by the term. Eg., United States v. Engler, 806 F.2d 425 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987); United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985). However, one court implies that scienter would consist of defendant's knowledge that the item being sold caine from a protected species. United States v. St. Pierre, 578 F. Supp. 1424, 1428 (W.D.S.D. 1983). While the courts noted above focused on actual awareness, one circuit has held that scienter existed if the defendant should have knoum of the presence of the key eircumstance. United States v. Sylvester, 848 F.2d 520, 522 (5th Cir. 1988); United States v. Delahoussaye, 573 F.2d 910, 912 (5th Cir. 1978). (44) Delahoussaye, 573 F.2d at 912 (imposing a 'should have known' standard as a minimum for scienter, thereby equating scienter with negligence); United States v. FMC Corp., 572 F.2d 902, 907-08 (2d Cir. 1978) (applying a variation of a negligence approach in imposing liability, but labeling it strict liability and not scienter); United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal. 1978), aff'd on other grounds, 578 F.2d 259 (9th Cir. 1978) (imposing a negligence type requirement, but labeling it strict liability rather than mens rea). (45) Of the judges, Judge A. Leon Higginbotham, Jr., in his concurrence in Engler, voiced the strongest position. Relying on laparota v. United States, 471 U.S. 419 (1985), and the MBTA's legislative history, he concluded that a scienter requirement is necessary to save the constitutionality of the MBTA's felony provisions. Engler, 806 F.2d at 437-41 (Higginbotham, J. concurring). (46) See, e.g., United States v. Manning, 787 F.2d 431, 438 (8th Cir. 1986) (holding scienter was not necessary to convict in hunting cases under the MBTA); Chandler, 753 F.2d at 363 (holding that "a hunter is strictly liable for" hunting in violation of the MBTA); United States v. Catlett, 747 F.2d 1102, 1104 (6th Cir. 1984), cert. denied, 471 U.S. 1074 (1985) (holding that knowledge is an unnecessary element in hunting cases under the MBTA); Rogers v. United States, 367 F.2d 998, 1001 (8th Cir. 1966), cert. denied, 386 U.S. 943 (1967) (holding that no proof of a defendant's "guilty knowledge or specific intent to commit [a commercial MBTA] violation" is necessary for conviction). (47) See Engler, 806 F.2d at 436 (commercial felony); United States v. Brandt, 717 F.2d 955 (6th Cir. 1983) (hunting misdemeanor; constitutional issue obliquely addressed); United States v. Ray, 488 F.2d 15, 19 (10th Cir. 1973) (hunting; probably a misdemeanor); United States v. St. Pierre, 578 F. Supp. 1424, 1429 (W.D.S.D. 1983) (commercial misdemeanor). (48) 758 F.2d 1121, 1125 (6th Cir. 1985) (holding that to convict someone under the MBTA without proof of scienter would violate the Constitution's Due Process Clause); accord St. Pierre, 578 F. Supp. at 1428-29 (holding that because the MBTA does not require showing of intent, it violates the Due Process Clause). (49) The amended statute reads as follows: Whoever, in violation of this Subchapter, shall knowingly-- (1) by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or (2) sell, offer for sale, barter or offer to barter, any migratory bird shau be guilty of a felony and shall be fined ... or imprisoned ... or both. 16 U.S.C. [sections] 707(b) (1994) (emphasis added). (50) S. Rep. No. 445, 99th Cong., 2d Sess. 16 (1985), reprinted in 1986 U.S.C.C.A-N. 6113, 6128. (51) Id. (52) Id. (53) The report said only the following By adding the modifier "knowingly" to the statute, this amendment will cure the unintended infirmity [identified in United States v. Wulff, 758 F.2d 1121, 1124 n.1 (6th Cir. 1985); see supra note 34]. Further, the amendment will require proof that the defendant knew (1) that his actions constituted a taking ... and (2) that the item so taken ... was a bird .... Id. (emphasis added); see supra note 43 (describing judicial interpretation of pre-amendment MBTA). (54) The post-amendment misdemeanor prosecutions do not depart from the pre-amendment cases on the issue of mental state. United States v. Javier Angueira, 951 F.2d 12, 15 (1st Cir. 1991) (assuming, but not deciding, that scienter is required but finding sufficient evidence to show that defendants knew the field was baited); United States v. Van Fossan, 899 F.2d 636, 638-39 (7th Cir. 1990) (noting that "intent," or knowledge of the species or migratory nature of the bird, need not be proved if the statute establishes a strict liability offense); United States v. Bookout, 788 F. Supp. 933, 936 (S.D. Tex. 1992) (recognizing that the government must prove at least that the defendant should have known the field was baited; failure to do so results in acquittal); cf. United States v. King, Crim. A. No. 88-511, 1992 WL 73358, at *4 (E.D. La. 1992) (noting that evidence was sufficient to show that defendant should have known the area was baited). (55) The meaning of the term "mens rea" is somewhat obscure. See Dressler, supra note 24, at 95-96; Sanford H. Kadish, The Decline of Innocence, 26 Cambridge L.J. 273, 273 (1968) ("The term "mens rea," is rivalled only by the term `jurisdiction' for the varieties of senses in which it has been used and for the quantity of obfuscation it has created." ; Sayre, supra note 1, at 1016 ("[I]t seems clear that mens rea ... has no fixed continuing meaning."). One reason for the obscurity may be that the search for general rules of criminal law, as opposed to specific dynamics of each crime, is a relatively recent phenomenon. See Fletcher, supra note 10, at 393 (placing the search within the last 100 years); Sayre, supra note 1, at 1023-26 (attributing the search for general mental-state principles to commentators writing since the mid-eighteenth century, and attributing obscurity in mental-state principles to "varying conceptions of the scope covered by the term mens rea"). Despite the obscurity, it is safe to say that mens rea is traditionally a normative term, signifying the personal blameworthiness that results from engaging in conduct with an immoral "motive, a 'vicious will,' or an 'evil-meaning mind.'" Dressler, supra note 24, at 96; see also Frankowsld, supra note 9, at 406-07 (stating that the concept of mens rea historically involves personal, moral guilt); Jerome Hall, General Principles of Criminal Law 70-72 (2d ed. 1960) (stating that the original meaning of the term "mens rea" is normative, connected to morality); Mueller, supra note 9, at 1057, 1060 (finding the crux of the common-law concept of mens rea in an awareness of evil). Sayre agreed that mens rea started out with a normative meaning but claimed that its meaning had become descriptive. Sayre, supra note 1, at 1016-17 (concluding that mens rea "is coming to mean ... an intent to do that which unduly endangers social or public interests"). (56) See Sanford H. Kadish & Stephen J Schulhofer, Criminal Law and Its Processes: Cases and Materials 217 (5th ed. 1989) (characterizing mens rea as the choice "to commit a criminal wrong"). (57) See id. at 217-18 (explaining that mens rea in its broadest sense includes not only standard mental-state defenses such as mistake of fact, but also such defenses as involuntary act, duress, and insanity); see also id. at 229-31 (describing the difficulties in using the common-law terms "general" and "specific" intent). (58) See Sayre, supra note 1, at 989 ("The early felonies were roughly the external manifestations of the heinous sins of the day."); Mueller, supra note 9, at 1058 (discussing the ethico-legal concept of mens rea" at common law). (59) Fletcher, supra note 10, at 232-33 (observing that manifestly criminal conduct is "unnerving and disturbing to the community as a whole"). Fletcher categorized this type of criminal behavior as "manifest criminality," because the danger to the community was immediately obvious to anyone observing the behavior. Id. at 115-16 ("[T]his basic pattern of liability is that the commiission of the crime be objectively discernable at the time that it occurs."). (60) Eg., Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L Rev. 55, 62 (1933) (describing the 1816 judicial interpretation of a state statute regulating the Sunday carriage hire trade). (61) Id; at 67. (62) See, e.g., Potter v. United States, 155 U.S. 438 (1894) (banking); Felton v. United States, 96 U.S. 699 (1878) (operating stills); United States v. Bayaud, 16 F. 376 (S.D.N.Y. 1883) (removing tax stamps from commercial goods); United States v. Thomson, 12 F. 245 (D. Or. 1882) (transporting immigrants to the United States); United States v. Thompson, 28 F. Cas. 98 (C.C.D. Mich. 1853) (No. 16,490) (cutting timber on federal lands); United States v. Leathers, 26 F. Cas. 897 (D. Nev. 1879) (No. 15,581) (selling alcoholic beverages); United States v. Learned, 26 F. Cas. 893 (E.D. Nhch. 1870) (No. 15,580) (issuing credit slips to workers). Discussing similar statutes in England and the American states, Sayre explained that this new class of offenses resulted partially from a "shift of emphasis from protection of individual interests" to "protection of public and social interests." Sayre, supra note 60, at 67. (63) Because upstanding citizens could and did engage in these acts, the criminal statutes were not intended to halt these types of activities, but rather to affect how citizens conducted them. However, because people did not consider these activities to be immoral in the traditional sense, it was difficult for courts to fit these crimes into the traditional mens rea analysis without requiring proof of actual awareness of violating the law. See, e.g., Chicago, St. P. M. & O. Ry. Co. v. United States, 162 F. 835, 842 (8th Cir. 1908), cert. denied, 212 U.S. 579 (1909). (64) One historian has noted that `The Nineteenth-century American' believed that "[w]hatever promised to increase wealth was automatically regarded as good, and the American was tolerant, therefore, of speculation, advertising, deforestation, and the exploitation of natural resources, and bore patiently with the worst manifestations of industrialism." Henry steel Commager, The American Mind: An Interpretation of American Thought and Character Since the 1880's, at 7 (1950). In addition, "[tlhe American's attitude toward authority, rules, and regulations was the despair of bureaucrats and disciplinarians ... [T]o the American a rule was at once an affront and a challenge." Id. at 19. On the other hand, nineteenth-century Americans tended to conform with traditional, Puritan morality. Id. at 22-23. Addressing the full-blown dilemma at the end of the century, Commager noted, "[t]here was the ethical problem which arose from the attempt to apply the individualistic moral code of the eighteenth and early nineteenth centuries--a moral code in which good and evil were significant terms, and responsibility personal--to the complex, impersonal practices of a twentieth-century economic order." Id. at 49. (65) See infra note 91. (66) See supra note 56 and accompanying text. (67) See, e.g., Dressler, supra note 24, at 95 (explaining that the principle that "an act does not make [a person] guilty, unless the mind be guity" has been a part of Anglo-American criminal law since about the thirteenth century). (68) Sayre points out that while regulatory statutes existed in the early 1800s, courts did not adopt a strict liability interpretation of the statutes until later in the century. Sayre, supra note 60, at 62. Moreover, "[b]efore the midddle of the nineteenth century there seem[ed] to be no thought on the part of American judges of relaxing the general requirement of mens rea even in the case of violations of regulatory statutes." Id. (69) The following material discusses the trend as manifested in the federal courts. Similar reactions occurred in many jurisdictions. See generally Sayre, supra note 60, at 56-57 (noting the same reactions in both British courts and in state courts in the United States, and tracing the development of public welfare offenses). But see Richard Singer, 7he Resurgence of Mens Rea: II--Hnest but Unreasonable Mistake of Fact in Self Defense, 28 B.C. L. Rev. 459, 461-70 (1987) (arguing that there was not really any strict liability in public welfare-type offenses in England and that the application of strict liability to public welfare offenses did not truly occur until the late nineteenth century in the United States). Sayre noted that when courts were first called upon to interpret the new statutes, they required the prosecution to prove criminal intent. See Sayre, supra note 60, at 58. However, this requirement began to disappear in the mid-nineteenth century in both England and the United States. Id. at 56-67. Sayre traced this change in England to an 1846 case in which the defendant possessed adulterated tobaacco that he believed to be pure; nonetheless, the Court of Exchequer held him liable for possession of adulterated tobacco. Id. at 58 (citing Regina v. Woodrow, 15 M. & M. 404 (Exch. 1846)). Sayre found that 20 years after the Woodrow case, there was a "conscious ... movement to do away with the requirement of mens rea for petty police offenses." Id. at 59. This trend was evidenced by a rapidly increasing number of cases spread across a variety of fields of concern. Id. at 59-62. While Sayre traced the fact that courts abandoned the scienter requirement in regulatory crimes, he did not provide much insight into why this abandonment took place. Id. at 55-63. (70) E.g., United States v. Thompson, 28 F. Cas. 98 (C.C.D. Atch. 1853) (No. 16,490). The statute in Thompson prohibited cutting timber on federal land. Id. at 99. Charged with violating this statute, the defendant objected that "there [was] no act set forth [at that time], from which the law will presume a 'criminal intent.'" Id. at 100. In response, the court agreed that in order to convict, the government was required to prove "a wrongful intention"; however, the court did not expect this intent requirement to hamper the prosecution in the present case. Id. The court explained its position as follows: An unlawful act is alleged; and consequently an unlawful intention will be presumed, on the proof of such unlawful act. Prove the allegata, and the intention is established, to be rebutted by the defense. This principle is as old as the criminal law. The act of homicide implies malice, because the act is proof of the intent. Id. The defendant objected that the analogy to homicide was inapt because the act of killing was fraught with moral turpitude while the act of cutting trees was not. Id. Nevertheless, the court held its position and replied that "although the act was not before punishable by indictment, yet, it was in itself a wrongful, yea, an immoral act, an evil of itself, and for which the trespasser was answerable in damages recoverable by civil action." Id. (71) The presumption that everyone knows the law is a black-letter rule of the common law. Eg., Dressler, supra note 24, at 141 (explaining that the doctrine that ignorance of the law excuses no one is "deeply imbedded in Anglo-American criminal jurisprudence"). But ef. id. at 144-52 (describing the limited, recently recognized exceptions to the general rule). The rule makes sense when the law is based on a broad moral consensus and extremely immoral behavior, see infra note 231, but the nile is artificial outside of that context, as the case summarized in the following footnote illustrates, see infra note 72. (72) E.g., United States v. Learned, 26 F. Cas. 893 (E.D. Mich. 1870) (No. 15,580). The defendants in Learned were convicted of issuing an instrument (financial contractual agreement) without the required tax stamp. Id. at 893. In rejecting their motions to set aside the verdict and for a new trial, the court first determined that the document at issue was, in law, an agreement that required a tax stamp. Id. at 895. The court next determined that the defendants were aware of the contents of the document and the fact that it had been issued without a stamp. Id. The court then strung together the necessary presumptions by declaring that because the defendants knew the facts about the document, they were presumed to know that the law made it an "agreement," and because they knew it was an "agreement," they were presumed to know that the law imposes a duty to have it stamped. Id. Hence, the court concluded that because everyone is presumed to intend the logical consequences of their acts, the defendants must be presumed to have intended to evade the provisions of the law. Id. Furthermore, the court rejected the defendants' argument that they, in fact, lacked moral turpitude because they were honestly unaware that the document was legally an "agreement" requiring a stamp. Id. at 896-97. (73) E.g., United States v. Harmon, 45 F. 414 (D. Kan. 1891), rev'd on other grounds, 50 F. 921 (1892). In Harmon, the defendant was charged with the felony of "depositing an obscene publication in the United States post office." Id. at 414. The defendant admitted mailing the newspaper with awareness that it contained an article, purportedly written by a physician, describing various types of sexual practices. However, he argued that "he was actuated solely by a purpose to improve the sexual habits, to correct its abuses, and thereby better the human race." Id. at 415. He urged that his innocent motive should provide a defense, as it showed a lack of "evil design." Id. at 419. Rejecting this argument, the court said that the statute was one where the criminal intent "is inferred from doing the act." Id. at 420. The court implied that any law regarding obscenity was based on "universal consensus that such things are impure ... and hurtful to the public morals." Id. at 421. In addition, the court concluded that the defendant's act was clearly wrong because society had given the legislature the power "to prescribe what is right and prohibit what is wrong." Id. at 422. (74) E.g., United States V. Jackson, 25 F. 548 (W.D. Tenn. 1885). In Jackson, the defendants were charged with neglecting their duties as elections officers by failing to keep adequate watch over a ballot box, failing to open the box and count the ballots at the end of the voting period, and allowing the ballots to be removed from the box before they were numbered and counted. Id. at 550-51. However, the defendants were not charged with having acted or failed to act "with the intent to affect the election, or the result thereof." Id. at 551. Even so, the court held that the indictment was sufficient because the crime was one of general rather than specific intent:

[I]t is only where the legislature accompanies its prohibition of particular conduct with a declaration that the inhibited act shall be done with a specified intent, that that intent need be either specifically averred by the indictment or specifically proved on the trial. In other cases the wrongful intent inheres in the act itself, is charged by an averment of the doing of the act, and is proved by evidence showing that the act was done. It consists in a violation of the statute, and proves itself when the violation is shown. Id. at 550. (75) See, e.g., id. at 551 (implying that an elections officer had a duty to ascertain the validity of the election before certifying it); United States v. Bayaud, 16 F. 376, 384 (S.D.N.Y. 1883) (stating that a person opening a stamped cask of liquid had a duty to ascertain whether or not it contained distilled spirits); United States v. Thomson, 12 F. 245, 248-49 (D. Or. 1882) (noting that ship captain had a duty to ascertain the number of immigrants on board before transporting them to the U.S.). (76) 96 U.S. 699 (1877). (77) Id. at 701 (stating that the statute was meant 'to guard against frauds upon the revenue"). Punishment involved a $1000 fine and forfeiture of property. Id. at 700. (78) Id. at 700 (statute punished any distiller who "`knowingly and wilfully' omitted, neglected, and refused" to do or cause to be done anything required by law in conducting his business). (79) Id. at 700-01. (80) Id. at 701. The court instructed the jury members that if they determined that the defendants had "designedly open[ed] the low-wine receiver" to bypass the monitoring system, they could find defendants guilty. Id. (81) Id. at 703-04 (holding that the defendants had not intended to commit fraud). (82) Id. at 701 (stating that Felton appealed because the jury found merely a technical violation of the law and not an intention to defraud). The Court, in clarifying the issue on appeal, stated: [T]he law ... is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions, and the usual means to comply with them are adopted. All punitive legislation contemplates some relation between guilt and punishment. To inflict the latter where the former does not exist would shock the sense of justice of every one. Id. at 703. (83) Id. at 702. The Court held that Congress did not mean to keep distillers from preventing waste and destruction in the face of "unforeseen contingencies" and recognized that accidents may make it necessary and desirable to bypass the monitoring mechanisms. Id. The Court explained that "[t]he offence, therefore, of the defendants consisted [not in their drawing off the liquor, but] in their omission to have a receiver of sufficient capacity to hold the [overflow of] low wines ....." Id. (84) Id. The Court explained this position by concluding that "[t]hey must have knowingly and wilfully' omitted to furnish a receiver of sufficient capacity .... Doing or omitting to do a thing knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it." Id. (85) Id. at 703. The Court specifically stated: All that the law does require or can require of [distillers], to avoid its penalties, is to use in good faith the ordinary means--by the employment of skilled artisans and competent inspectors--to secure utensils and machinery which will accomplish the end desired. If defects should then exist . . . the parties cannot be charged with "knowingly and wilfully" omitting to do what is required of them. Id. (86) The defendants did not assert that they were unaware of the monitoring requirement. Id. (87) United States v. Bayaud, 16 F. 376 (S.D.N.Y. 1883). The defendant, Bayaud, was convicted of removing tax stamps from casks of distilled spirits without destroying the stamps. Id. at 377-78. The court fint stated that the statute set forth a general intent crime. Id. at 383. Perhaps inconsistently, the court then treated as a separate issue the objection that the indictment failed to allege that the defendant "knew that the casks contained distilled spirits." Id. at 384. The court held that proof of such knowledge was not necessary to a criminal conviction for removing the tax stamp because [statutory crimes where knowledge or intent are not ingredients of the offense are common. The rule applied in such cases is that where a statute forbids the doing of a certain act under certain circumstances without reference to knowledge or intent, any person doing the act mentioned is charged with the duty to see that the circumstances attending this act are such as to make it lawful; and under such statutes a conviction may be had upon proof of doing the forbidden act, without proof of knowledge by the accused of the circumstances specified in the statute. Id.; see, e.g., United States v. Thomson, 12 F. 245, 24849 (D. Or. 1882) (holding that the master of a ship had a duty to be aware of the number of passengers on the ship); United States v. Baldridge, 11 F. 552, 555-56 (N.D. Ala. 1882) (holding that in charging federal elections officers with "fraudulently [making] a false certificate of the result of the election," it was sufficient for the government to prove their negligence with regards to the contents of the ballot box). (88) Twenty years after Felton, the Court adopted the Fetton; approach to interpret a statute that previously had been read to require proof of defendant's actual awareness of the morally charged attendant circumstance. Spurr v. United States, 174 U.S. 728 (1899). Spurr involved a bank manager's willful and knowing endorsement of a certified check for which there were insufficient funds. Id. at 729. The statute at issue stated that "any officer of any national banking association who shall wilfully violate the provisions of [the Act] or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer ... shall be deemed guilty of a misdemeanor." Id. Five years earlier, in considering the same statute, the Court had required the prosecution to prove the defendant's actual awareness of insufficient funds. Potter v. United States, 155 U.S. 438, 446-48 (1894). However, in Spurr the Court focused on the defendant's duty to be aware of the adequacy of the check drawer's account and stated the following: The wrongful intent is the essence of the crime. If an officer certifies a cheque with the intent that the drawer shau obtain so much money out of the bank when he has none there, such officer not only certifies unlawfully, but the specific intent to violate the statute may be imputed. And so evil design may be presumed if the officer purposely keeps himself in ignorance of whether the drawer has money in the bank or not, or is grossly indifferent to his duty in respect to the ascertainment of that fact. 174 U.S. at 735 (emphasis added). (89) Commager, Supra note 64, at 4146, 50. Furthermore, Sayre adds the following: The decisions permitting convictions of light police offenses without proof of a guilty mind came just at the time when the demands of an increasingly complex social order required additional regulation of an administrative character unrelated to questions of personal guilt; the movement also synchronized with the trend of the day away from nineteenth century individualism toward a new sense of the importance of collective interests. The result was almost inevitable. Sayre, supra note 60, at 67. Commager notes that nineteenth-century Americans were impatient with normative exploration and unwilling to spend much energy engaging in it. Commager, supra note 64, at 3-11. (90) In addition, people were confused and doubtful about the ethical rules for modern life. Commager, supra note 64, at 47-49. Commager concluded that "[t]here was the ethical problem which arose from the attempt to apply the individualistic moral code of the eighteenth and early nineteenth centuries-a moral code in which good and evil were significant temis, and responsibility personal-to the complex, impersonal practices of a twentieth-century economic order." Id. at 49. (91) In part, the jurisprudential problem resulted from the traditional equation between serious immorality and criminality. This equation was behind the notion that a person aware of moral wrongdoing was presumed to be aware of criminality. See infra notes 231 and 257 and accompanying text. Defendants charged with new crimes wanted to argue that since the activities were morany ambiguous, they were not aware of wrongdoing; since they were not aware of wrongdoing they were not aware of criminality. However, the general moral ambiguity of the times raised the specter that this type of reasoning could be extended even to the activities involved in more traditional types of crimes. A similar fear was expressed in United States v. Harmon, in which a defendant was indicted for "depositing an obscene publication in the United States post-office." 45 F. 414, 414 (D. Kan. 1891), rev'd on other grounds, 50 F. 921 (1892). The publication in question was a newspaper in which defendant discussed sexual matters. Id. In his defense, Harmon argued that while some of the language might have been considered obscene by current standards, use of the language was necessary to achieve his morally upstanding goal of educating the public and correcting problems of sexual commerce. Id. at 421-22. The court responded as follows: In short, the proposition is that a man can do no public wrong who believes that what he does is for the ultimate public good. . . . [This position] leaves out of view the existence of the social compact, and the idea of government by law. If the end sought justifies the means, and there were no arbiter but the individual conscience of the actor to determine the fact whether the means are justifiable, homicide, infanticide,

pillage, and incontinence might run riot; and it is not extravagant to predict that the

success of such philosophy would remit us to [a] barbaric condition .... Id. at 422.

The Court went on to give examples of behavior that some considered moral although "civilized" society considered otherwise, including "[t]he Hindu mother [who] cast[s] her babe to the [devouring] Ganges to appease the gods ...[,] [t]he Mormon [who] contends that his religion teaches polygmey [sic) [,] ... and ... so-called `modern thinkers' who would abolish monogamy, and erect on the ruins the flagrant doctrine of promiscuity, under the disguise of the affinities." Id. The court concluded:

Society is organized on the theory, born of the necessities of human well-being, that

each member yields up something of his natural privileges, predilections, and indulgences

for the good of the composite community ... and ... the law-making power,

within the limits of constitutional authority, must be recognized as the body to prescribe

what is right and prohibit what is wrong. Id. (92) For example, true common-law crimes were created by judges in reaction to the desire of the masses to punish certain behavior. See Sayre, supra note 1, at 975-76 (stating that early common law developed out of the desire for vengeance); Fletcher, supra note 10, at 116 (explaining that the concept of criminality stems from community experience). However, some judges may not have felt as certain about the moral basis of crimes created by the legislature. Cf. Fletcher, supra note 10, at 117 (noting that the "modern view [is] that the criminal law is imposed on the community by the courts or the legislature"); id. at 406-08 (discussing the connection between perspectives on the role of the legislature and perspectives on the normative content of criminal law). (93) See Commager, supra note 64, at 91-100 (explaining that society was experiencing a shift in the emphasis of philosophy from the salvation of the individual to the reconstruction of society"). Commager focused on William James's philosophy of "pragmatism [which] was a philosophy of experience ... [that] put ideas to work and judged them by their results," and John Dewey's philosophy which "put philosophy to the service of society" so that" [t]he, ends he sought were public, not private." Id. at 95, 99. Consequently, for Dewey, truth was what worked for the group and not just for the individual, such that "[m]orality was social, not individual." Id. at 99; see also Fletcher, supra note 10, at 100-102 (discussing the nature of utilitarian philosophy and its influence on criminal law). (94) Commager, supra note 64, at 102, 106; Fletcher, supra note 10, at 101, 119. (95) See Commager, supra note 64, at ch. XVII, XVIII (discussing how Holmes, Pound, and Brandeis viewed the evolution of American law). (96) The lower court in Felton took the position that no moral dimension was involved in that crime. The Supreme Court, though, rejected the lower court's position as too extreme. Felton v. United States, 96 U.S. 699, 703-04 (1877). See supra text accompanying notes 81-83. Shortly after Felton, nonetheless, some lower federal courts, especially in cases dealing with commercial transactions with Indians, held that other regulatory crimes lacked a moral dimension. E.g., Feeley v. United States, 236 F. 903, 906 (8th Cir. 1916) (stating that the knowledge or intent of the offender is irrelevant when the statute does not require a certain mental state); United States v. Anderson, 189 F. 262, 265 (D. Or. 1911) (concluding that a statute prohibiting the purchase of certain cattle from Indians did not require knowledge to constitute a violation), rev'd on other grounds, 228 U.S. 52 (1913); United States v. Miller, 105 F. 944, 947 (D. Nev. 1901) (stating that the intent of a defendant in giving liquor to the Indians is irrelevant because the statute did not contain requirements as to mental state); United States v. Leathers, 26 F. Cas. 897, 901 (D. Nev. 1879) (No. 15,581) (describing certain cases that subject violators to penalties irrespective of their intent to violate or their knowledge of the law). The Supreme Court itself adopted the strict liability approach as early as 1907 in Ellis v. United States, 206 U.S. 246, 257 (1907) (Speaking for the Court, Justice Oliver Wendell Holmes explained that as long as the defendant acted, and that act was "forbidden by the law," the defendant can be found guilty.); see also Armour Packing Co. v. United States, 209 U.S. 56, 85 (1908) (stating that some statutes may not require "turpitude or moral wrong" to make violation of the law a crime). The Court confirmed its abandonment of a mens rea requirement for regulatory crimes in United States v. Balint, whose paradigm controlled the area until the middle of the twentieth century. 258 U.S. 250, 253-54 (1922). See infra notes 14548.

Sayre's summary of the mature strict liability doctrine displays the nature of the Court's rationalizations:

In such cases convictions based upon mere forbidden conduct irrespective of intent

may be had if the statute violated is of a purely regulatory nature, and if the injury is

of a widespread and public character,--particularly in cases where the ascertainment

and proof of guilty knowledge would be so difficult that to require it would practically

prevent convictions. Sayre, supra note 60, at 62. (97) Sayre, supra note 60, at 56-67 (detailing the development of public welfare offenses in England and the United States from about 1850 on).

However, a type of strict liability could result in another way. For example, in Regina v. Prince, 13 Cox's Crim. Law Cases 138 (1875), the defendant was convicted of taking an unmarried girl under the age of 16 years "out of the possession, and against the will of her father." Id. On review, Judge Bramwell created a kind of strict liability by allowing the conviction to stand despite the defendant's reasonable belief that the girl in question was over sixteen years old; he reasoned that it was immoral in general to take a girl from her father's possession without consent. Id. at 141-42 (Bramwell, J., concurring). Judge Brett pointed out in his dissent that without proof that defendant was aware of all the facts that constituted the violation, conviction would be without mens rea. Id. at 149-56 (Brett, J., dissenting); see also Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. CT. Rev. 107, 140-42 (discussing statutory rape and bigamy as strict liability crimes). (98) 258 U.S. 250 (1922). Singer notes that Balint's holding is technically limited to the pleadings. Singer 1, supra note 10, at 1379. However, as Singer also points out, the language of the case is broader, and the Court has treated it as a substantive decision. Id. (99) Balint, 258 U.S. at 251. (100) Id. (101) Id. at 251, 253-54. The Court conceded that the "general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime." Id. at 251. However, this general rule had been modified "in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement." Id. at 252. It did not seem to trouble the Court that enforcement of any statute is made more difficult by a scienter requirement. The Court held that conviction without proof of scienter was consistent with due process because requiring citizens to act at their own risk was sometimes necessary to further public policy. Id. (citing Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70 (1910)). (102) Id. at 254. The holding in Balint meant that the prosecutor did not have to prove the defendant's awareness of wrongdoing; however, this did not necessarily mean that the prosecutor was excused from proving any awareness whatsoever. One interpretation is that the Court requires the government to prove defendant's awareness of selling some kind of drug as opposed to, say, sugar. This interpretation works because awareness of selling drugs in general does not amount to awareness of wrongdoing in the traditional, common-law sense of that term, and thus does not amount to mens rea.

Some commentators have interpreted Balint differently. Eg., Saltzman, supra note 10, at 1572 (arguing that Balint's holding would allow the conviction of a person who honestly and reasonably believed he was selling sugar); Singer, supra note 69, at 468 n.58 (concluding the same); Webber, supra note 10, at 56 (concluding the same); cf. Barber, supra note 10, at 125 (explaining that mistake of fact is not a defense to mala prohibita and "public welfare" crimes). These interpretations seem to be based on a descriptive approach to mens rea, which equates the lack of a "mental element" with the lack of any awareness whatsoever. See supra note 10. However, the Balint Court was operating in a time when the notion of mental state had normative meaning, and so its phrase "no mental element" arguably means "no mens rea." Accord Nigro v. United States, 4 F.2d 781, 784 (8th Cir. 1925) (noting that Balint held that scienter is not required); id. at 784-85 (holding that although the Balint Court found section 2 of the Act did not require scienter, the Balint reasoning did not apply to section 1 of the same Act because it is assumed that people coming under section 2 would know that the substance was some kind of drug). Similarly, the statement that strict liability crimes "consist only of forbidden acts or omissions" could just as easily mean that the prosecutor has to prove acts and some awareness, just not an awareness amounting to mens rea. See Staples v. United States, 114 S. Ct. 1793, 1798 n.3 (1994); cf. United States v. International Minerals & Chem. Corp., 402 U.S. 558, 562-65 (1971) (comparing Balint to a prosecution for transporting dangerous chemicals contrary to regulation and stating that a person who thought that he was transporting distilled water would not be covered by the statute). (103) Balint, 258 U.S. at 252. (104) Id. at 253 (citing Supreme Court precedent on the Narcotic Act). The Court found that the Act

merely uses a criminal penalty to secure recorded evidence of the disposition of such

drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require

every person dealing in drugs to ascertain at his peril whether that which he

sells comes within the inhibition of the statute, and if he sells the inhibited drug in

ignorance of its character, to penalize him. Id. at 254. (105) The Court specifically made the following observation reflecting the moral dimensions involved:

Congress weighed the possible injustice of subjecting an innocent seller to a penalty

against the evil of exposing innocent purchasers to danger from the drug, and concluded

that the latter was the result preferably to be avoided. Doubtless considerations

as to the opportunity of the seller to find out the fact and the difficulty of proof

of knowledge contributed to this conclusion. Id. (emphasis added). (106) Nigro, 4 F.2d at 794-85. The defendant in Nigro was charged with purchasing narcotic drugs that had counterfeit internal revenue stamps, but the court held he could not be convicted without proof of scienter, that is, knowledge that the stamps were counterfeit. Id. An opposite ruling, the court felt, would make a criminal out of an innocent purchaser. Id. (107) Cf. Singer, supra note 69, at 338 (stating that by the mid-twentieth century, courts were often too willing to treat crimes as imposing strict liability). For a more complete review of the Supreme Court's early twentieth century strict liability cases, see Packer, supra note 97, at 110-19. A good example of the Supreme Court's willingness to impose strict liability under a regulatory statute is United States v. Dotterweich, 320 U.S. 277, reh'g denied, 320 U.S. 815 (1943). In Dotterweich, the Court took for granted that as a "familiar type of legislation whereby penalties serve as effective means of regulation," section 3d(a) of the Federal Food, Drug, and Cosmetic Act "dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing" and consequently imposed strict liability upon the defendant. Id. at 280-81. (108) See Packer, supra note 97, at 110-19 (agreeing that Morissette v. United States, 342 U.S. 246 (1952), signaled a change in approach). Packer also observed that "Morissette may represent a turning point of sorts in judicial attitude toward mens rea. If it does, we must recognize how far we had come down the road to obliterating any general principles in the substantive criminal law." Id. at 121. (109) A number of commentators have reviewed some or all of the cases that will be covered in this section of the paper, treating them as examples of classic "strict liability" and discussing various ramifications of that approach. See Barber, supra note 10, at 111-26 (discussing various doctrines); Saltzman, supra note 10, at 1592-1615 (arguing that strict liability should be rejected as unconstitutional); Singer I, supra note 10, at 1378-80 (focusing on corporate officers); Webber, supra note 10, at 55-63 (tracing the development of public welfare offenses); cf. Vitiello, supra note 28, at 235-245 (talking a descriptive approach and finding that the Court was inconsistent in its use of background assumptions of the criminal law). However, the purpose of the review that follows here is to take a normative approach that will illuminate the nonstrict liability aspects of the cases. (110) 342 U.S. 246 (1952). (111) Id. at 255-61. In Morissette, the defendant removed and sold spent bomb casings from an uninhabited, wooded area formerly used as an Air Force bombing range. Id. at 247. He was charged with "unlawfully, wilfully and knowingly" stealing and converting United States property, a misdemeanor carrying a maximum prison sentence of one year. Id. at 248. (112) Id. The trial court excluded evidence that Morissette thought the casings were abandoned and that he did not intend to steal them, explaining that "[t]he question on intent is whether or not he intended to take the property." Id. at 249 (quoting unpublished lower court opinion). The court added that felonious intent "is presumed by [the defendant's] own act." Id. (quoting unpublished lower court opinion). The court of appeals affirmed the conviction on the ground that 'this particular offense require[d] no element of criminal intent" because Congress had failed "to express such a requisite." Id. at 250. The Supreme Court reversed, noting the historic importance of the "mental element" in criminal law. Id. at 250-52. This history provided the context in which the current statute was to be interpreted. Id. at 261-62. The focal question was whether or not the legislature had based the statute on the common law. Id. at 262. If it had, the "mere omission ... of any mention of intent will not be construed as eliminating that element from the crime[] denounced." Id. at 263. Turning to the statute at issue, the Court found that it had been adapted from the common law. Id. at 270-73. In addition, there were "no grounds for inferring any affirmative instruction from Congress to eliminate intent" from the offense. Id. at 273. Therefore, the Court assumed that proof of "intent" was required. Id. at 268-73. It concluded that because Morissette's intentions were an element of the crime and a question of fact, he should have been allowed to present proof of his intent to the jury. Id. at 274-76. (113) Id. at 252-56. The Court added that such statutes "belong to a category of another character, with very different antecedents and origins [than statutes based in the common law]" and that these crimes "depend on no mental element but consist only of forbidden acts or omissions." Id. at 252-53. It used the drug offense in Balint as an example of a statute not based in the common law but developed during the last century to regulate dangers associated with industrialization and urbanization. Id. at 253-54. In adopting such statutes "lawmakers . . . ha[d] sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions." Id. at 254-55. (114) 342 U.S. 337 (1952). (115) The defendant, Boyce, had allegedly violated an Interstate Commerce Commission requirement that transporters of explosives and similar items avoid certain routes "so far as practicable and, where feasible, by prearrangement." Id. at 339. The underlying statute authorized punishment for "whoever knowingly violates" the regulation. Id. Boyce was charged with three separate violations, the last of which resulted in an explosion injuring sixty people. Id. at 339-40. (116) The trial court held that the regulation was unconstitutional because it was 'so vague and indefinite as to make the standard of guilt conjectural." Id. at 33940 (quoting unpublished lower court opinion). (117) The Court affirmed the Third Circuit's reversal of the district court's decision. Id. at 343. (118) The Court reviewed the "long history of regulation of the exportation of explosives and inflammables" and noted that "[t]he trucking industry participated extensively in the process" of the most recent amendment to the regulation in question. Id. at 341-42. In addition, another provision required defendant's personnel to be familiar with the regulations. Id. at 342 n. 15. While the court did not state that these factors provided a basis for assuming defendant's knowledge, of the regulation, it did assume such knowledge without any other explanation. Id. at 342.

It was unclear how the Court would deal with a defendant who actually claimed not to know about the requirement. Such a claim would be troublesome because, as the dissent pointed out, without actual knowledge of the regulation the "lack of notice" problem persists. Id. at 345 Jackson, J., dissenting. ; accord Packer, supra note 97, at 123. Furthermore, without actual knowledge there would seem to be no "culpable intent": driving down any particular street is arguably a completely innocent act, unless a trucker knew of the requirement to seek an alternate route. In the face of this, at least some commentators have concluded that Boyce supports a requirement that the government prove defendant's awareness of the law. See Packer, supra note 97, at 145 n.140 (indicating that the statute at issue required proof of awareness of the law). (119) Boyce, 342 U.S. at 342. The government had to prove "that petitioner knew that there was ... a practicable, safer route and yet deliberately took the more dangerous route ... or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route." Id. (120) Id. (121) 355 U.S. 225 (1957), reh'g and modification denied, 355 U.S. 937 (1958). (122) Id. at 226. The municipal ordinance made it a crime for a convicted felon to be in Los Angeles for more than five days without registering with the police. Lambert, a Los Angeles resident and convicted felon, had not registered. Id. (123) Id. The Court, in making its decision, assumed that the defendant 'had no actual knowledge of the requirement ... as she offered proof of this defense which was refused [at trial]." Id. at 227. However, the Court's refusal to presume knowledge was based, at least in part, on the nature of the ordinance. In order to distinguish Lambert from those cases that allowed the imposition of strict liability under a criminal regulation, the Court stated the following:

[W]e deal here with conduct that is wholly passive--mere failure to register. It is

unlike the commission of acts, or the failure to act under circumstances that should

alert the doer to the consequences of his deed. The rule that "ignorance of the law will

not excuse" is deep in our law .... On the other hand, due process places some limits

on its exercise. Engrained in our concept of due process is the requirement of notice....

[T]he present ordinance is entirely different [from other common registration

laws]. Violation of its provisions is unaccompanied by any activity whatever, mere

presence in the city being the test. Moreover, circumstances which might move one

to inquire as to the necessity of registration are completely lacking.... We believe

that actual knowledge of the duty to register or proof of the probability of such

knowledge and subsequent failure to comply are necessary before a conviction under

the ordinance can stand. Id. at 228-29 (citations omitted, emphasis added). The Court did not discuss the possible argument that being present in a city could also be described in active terms (just as the behavior in Boyce could be described both in terms of active conduct and omission) or that being a convicted felon is a circumstance that could give notice of responsibilities and limitations. The Court did quote Holmes's comment that "[a] law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear." Id. (quoting Oliver W. Holmes, Jr., The Common Law (1881)). Of course, it is possible to argue that convicted felons are less "average" members of the community than truckers.

Given the incipient stage of jurisprudential development, the Court's use of the distinction between active and passive behavior was probably necessary to distinguish the ordinance in Lambert from other regulatory statutes. See infra note 125. However, the distinction is awkward, a characterization that is, perhaps, confirmed by the fact that neither Lambert itself nor its rationale have been relied upon by the Court to invalidate any other piece of legislation. Packer labels the majority's opinion "confused," Packer, supra note 97, at 132, while Fletcher points out that the concept of omission was neither necessary nor sufficient to the constitutional holding, Fletcher, supra note 10, at 425. The Court's solution may be explained in part by the fact that the amicus briefs presented to the Supreme Court were unusually weak and that the only decent brief presented on behalf of Lambert suggested the active-passive distinction. Packer, supra note 97, at 128-31. (124) Lambert, 355 U.S. at 227. (125) The Court believed that the ordinance would be constitutional only if it required "actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply." Id. at 229. Because the Court could not read a mens rea requirement into the municipal ordinance, the only remedy was to declare the ordinance unconstitutional. Id. Yet this action risked voiding the numerous state and federal strict liability offenses that the courts had not found to be too harsh. Id. at 232 (Frankfurther, J., dissenting). The dissent acknowledged this dilemma and the threat to strict liability crimes in general: "If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired." Id. (Frankfurter, J., dissenting). The dissenting judges would have allowed the ordinance to stand as constitutional. Id. at 230 (Frankfurter, J., joined by Harlan, and Whittaker, JJ., dissenting). (126) The Court does not overtly harmonize the cases. The Boyce opinion does not mention the Morissette case, and the Lambert opinion mentions neither Morissette nor Boyce. (127) Boyce, 342 U.S. at 339-40. (128) Lambert, 355 U.S. at 228. (129) The Court explored other mental state issues in the context of obscenity statutes, finding that to protect First Amendment freedoms, these statutes required a meaningful mens rea requirement. Mishkin v. New York, 383 U.S. 502, 510-12, reh'g denied, 384 U.S. 934 (1966) (upholding state obscenity statute that required the proof that defendant was "aware of the character of the [obscene] material" (quoting People v. Finkelstein, 174 N.E.2d 470, 471 (N.Y. 1961)); Smith v. California, 361 U.S. 147, 154-55 (1959), reh'g denied, 361 U.S. 950 (1960) (holding that the First Amendment requires that a bookseller be aware of the contents of obscene books to be convicted of selling obscene material); Roth v. United States, 354 U.S. 476, 495, reh'g denied, 355 U.S. 852 (1957) (Warren, C.J., concurring in result) (noting that conviction under state obscenity law requires proof that the defendant intended to appeal to the prurient interests of customers). In other cases, the Court avoided the mens rea issue altogether. See United States v. Guest, 383 U.S. 745, 753-54 (1966) (stating that the crime of conspiracy against the rights of citizens contained a specific intent requirement that eliminated any notice problems); see also United States v. Standard Oil Co., 384 U.S. 224, 230 (1966) (avoiding the issue of a scienter requirement in the Rivers and Harbors Act as it was not presented in the restricted appeal). (130) 401 U.S. 601, reh'g denied, 403 U.S. 912 (1971). (131) Id. at 607. (132) Id. at 604-05. The other ground was that the Act violated the Fifth Amendment's protection against self-incrimination. Id. (133) Id. at 607. From the traditional point of view, this characterization was correct. Although the prosecutor had to prove awareness of the criminal act, that act was not immoral in the traditional sense. Thus, awareness of engaging in the act did not amount to awareness of wrongdoing, and therefore, there was no mens rea. Id.

In his concurrence, Justice William Brennan used a different route to reach the same conclusion as to necessary proof. Id. at 610, 612-16 (Brennan, J., concurring in judgment). In essence, he called for the Court to adopt the Model Penal Code (MPC) approach to statutory interpretation of mental state issues. Id. at 613 (Brennan, J., concurring in judgment). This approach purports to detach the notion of mental state from traditional mens rea terms and concepts and to apply a different mental state for each act element of the crime. Id. at 613-15 (Brennan, J., concurring in judgment). The statute in Freed had mental state requirements for all its elements except for the attendant circumstance element of permit status, which Justice Brennan thought would amount to an awareness of circumstances that the law has defined as material to the offense." Id. at 615 (Brennan, J., concurring in judgment). Interestingly, Justice Brennan's analysis in Freed foreshadowed much of his majority opinion in Liparota v. United States, in which he tried to adapt this MPC approach to traditional common law. See generally Liparota v. United States, 471 U.S. 419 (1985). (134) According to the Court's interpretation, the statute under consideration in Freed required proof that the defendant knew that he possessed a firearm, but not proof of "specific intent or knowledge that the hand grenades were unregistered." Freed, 401 U.S. at 607. Thus, the Court felt that the statute was among those that were an exception to the rule that intent was required for criminal liability. Id. (explaining that a "vicious will' or mens rea" is a traditional requirement for criminal convictions (quoting Morissette v. United States, 342 U.S. 246, 251 (1952))). (135) Id. at 608 (distinguishing the statute in Freed from the strict liability statute invalidated in Lambert, on grounds other than the fact that it prohibited active rather than passive behavior). (136) Id. The Freed Court went on to explain that the statute in Lambert "was quite" unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed'" and could not be saved by "[t]he fact that the ordinance was a convenient law enforcement technique." Id. (quoting Lambert v. California, 355 U.S. 225, 228 (1957), reh'g and modification denied, 355 U.S. 937 (1958)). (137) Id. at 607-08 (setting forth a continuum with Morissette at one end and Lambert at the other). (138) Id. at 609. (139) Id. (footnote and citation omitted). The Court also referred to United States v. Dotterweich, 320 U.S. 277, reh'g denied, 320 U.S. 815 (1943), the misbranded drug case. (140) 402 U.S. 558 (1971). (141) The defendant was charged with "knowingly fail[ing] to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C.F.R. [sections] 173.427." Id. at 559 (quoting the Information). Such behavior was addressed under a statute authorizing criminal penalties for anyone who "knowingly violate[d]" a relevant Interstate Commerce Commission regulation. Id. (quoting 18 U.S.C. [sections] 834(f) (1970) (repealed 1979)). (142) Id. (143) Id. at 560 (citation omitted, emphasis added). (144) Id. at 563-64 (emphasis added). (145) See supra note 102 (discussing the mental state requirement at issue in Balint). (146) International Minerals, 402 U.S. at 560 (discussing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952)). The Court implied that awareness of transporting dangerous substances might not be sufficient to satisfy the mens rea requirement of the statute involved in Boyce, which imposed liability on anyone who "knowingly" violated a regulation requiring drivers of flammable liquids to seek the safest routes for delivery. Id. at 560-62. In Boyce, in addition to proving that the defendant knew of a "commercially practicable and appreciably safer" route, the government also had to prove that the defendant had deliberately failed to use it or that it had "willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route." Id. at 561 (quoting Boyce, 342 U.S. at 342-43). However, in Boyce, despite this additional element, awareness of the dangerousness of the substance was still a focal inquiry in that it was awareness of dangerousness that triggered the requirement that the defendant know and use the safest commercially practicable route. Id. (147) Id. at 564-65. (148) The importance of these questions was illustrated by the dissent, which saw the conviction here as 'the infliction of criminal punishment upon the unaware." Id. at 565 (Stewart, J., dissenting). This was so because the Court had failed to give proper effect to Congress's use of the word "knowing" in the statute. Id. (Stewart, J., dissenting). According to the dissent, the statute should be interpreted to require the government to show the defendant's knowledge of the regulation in order to prove mens rea. Id. at 565-66 (Stewart, J., dissenting). Omitting this requirement would result in inappropriate convictions, because, unlike "interstate motor carriers or institutional shippers" who are required by law to be familiar with these types of regulations, casual carriers who have no;such obligation would also be liable. Id. at 568-69 (Stewart, J., dissenting). The dissent thought this would be 'a perversion of the purpose of criminal law." Id. at 569 (Stewart, J., dissenting). (149) 438 U.S. 422 (1978). (150) Id. at 443. The opinion devotes a fair amount of attention to the problem of determining "what standard of intent [was] appropriate." Id. Because the legislative history and the language of the statute were ambiguous, the Court turned 'to more general sources and traditional understandings of the nature of the element of intent in the criminal law." Id. at 444. The main source was the Model Penal Code (MPC), which offered four levels of intent: purpose, knowledge, recklessness, and negligence. Id. Of the four, the Court chose the knowledge standard because it was consistent with traditional criminal law's concept of "knowledge or awareness" as opposed to "the specific requirement of purpose." Id. at 445. The Court interpreted knowledge to mean "consciously behaving in a way the law prohibits," and concluded that "business behavior which is likely to give rise to criminal antitrust charges is conscious behavior normally undertaken only after a full consideration of the desired results and a weighing of the costs, benefits, and risks." Id. at 44546. Thus, it held that "the perpetrators knowledge of the anticipated consequences [was] a sufficient predicate for a finding of criminal intent" in antitrust cases. Id. at 446.

While the selection of `knowledge' as the requirement may be justified, it can be argued that the use of an MPC framework was misplaced and confusing. See infra notes 385-402 and accompanying text. (151) Id. at 435-36. The Court specifically stated: [W]e hold that a defendant's state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices . . . . We are unwilling to construe the Sherman Act as mandating a regime of strict-liability criminal offenses. Id. (citation omitted). (152) Id. at 436. (153) Id. at 441. (154) Id. at 442. (155) Id. at 446 (explaining that in the business context these additional requirements appear to be "both unnecessarily cumulative and unduly burdensome" .

Writing separately, Justice William Rehnquist would not reach the issue of mental state because he felt the jury instructions were sufficient; however, he especially objected to the Court's implication that constitutional issues might exist if criminal liability were imposed without fault. Id. at 471-73 (Rehnquist, J., concurring in part and dissenting in part).

Justice Stevens occupied the other extreme and thought that any mens rea requirement would have to be added by congressional amendment, and so dissented. Id. at 474 (Stevens, J., concurring in part and dissenting in part). In the abstract, he would go even farther than the Court by requiring the government to prove that the defendant had a "specific purpose to violate the law." Id. (Stevens, J., concurring in part and dissenting in part). (156) 471 U.S. 419 (1985). (157) Id. at 420 (citing 7 U.S.C. [sections] 2024(b)(1) (1982)). A first-time conviction carried a possible fine of $10,000, a possible prison term of 5 years, or both. Id. at 420 n.1. (158) Id. at 421. (159) Id. at 422. (160) Id. The trial court concluded that the violation was not a "`specific intent crime' but a `knowledge case.'" Id. (161) Id. at 423. (162) The Liparota Court did not acknowledge the constitutional issues that might arise if the statute were interpreted differently. See id. at 424 n.6 (noting that "there is no allegation that the statute would be unconstitutional under either interpretation" . The dissent tried to characterize this position as an admission that "there [was] no constitutional defect with the holding of the court below." Id. at 442 n.6 (White, J. dissenting). This exchange suggests that the lurking threat of constitutional issues may have influenced the Court's statutory interpretation. Cf. Lambert v. California, 355 U.S. 225, 229-30 (1957), reh'g and modification denied, 355 U.S. 937 (1958) (finding that a strict liability statute requiring registration of felons within city limits presents due process notice problems); Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) (writing for the court, then Circuit Judge Harry Blackmun articulated the standards for judging the constitutionality of criminal statutes lacking a scienter requirement); Saltmnan, supra note 10, at 1615-38 (arguing that strict liability crimes should be declared unconstitutional). (163) Liparota, 471 U.S. at 425. The Court clarified its position by equating a defendant's awareness that his conduct was "unauthorized by statutes or regulations" with an awareness of noncriminal law, rejecting the dissent's claim that it was establishing an awareness of criminality requirement. Id. at 425 n.9. The Court also made it clear that the prosecution did not have to prove defendant's knowledge of any particular statute or regulation in order to prove that his "acquisition or possession of food stamps was unauthorized." Id. at 434. Rather, as in any other criminal prosecution requiring mens rea, the government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal." Id. The Court further suggested that proof could be met in this case by showing that the defendant's purchases had occurred "at a substantial discount" and in the back room of his restaurant. Id. at 434 n.17. (164) Id. at 425-26. The Court observed:

"The contention that an injury can amount to a crime only when inflicted by intention

is no provincial or transient notion. It is as universal and persistent in mature systems

of law as belief in freedom of the human will and a consequent ability and duty of the

normal individual to choose between good and evil." . . . Thus, . . . criminal offenses

[that] requir[e] no mens rea have a "generally disfavored status." Id. at 425-26 (quoting first Morissette v. United States, 342 U.S. 246, 250 (1952), quoting second United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978)). (165) Id. at 426. (166) Id. at 425. The food stamp statute had one provision directed at stores accepting food stamps and another directed at food stamp users. Id. at 426, 28. The two subsections had facially different mental state requirements, but the Court said "[t]he difference in wording between [the two subsections] is too slender a reed to support the attempted distinction." Id. at 429. Interestingly, the argument rejected by the Court was strikingly similar to that adopted by the Ninth Circuit in refusing to interpret section 3008(d)(2)(a) of RCRA to require awareness of permit status. United States v. Hoflin, 880 F.2d 1033, 1037 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990); see also supra note 28 (discussing Hoflin). (167) United States v. Freed, 401 U.S. 601, 609, reh'g denied, 403 U.S. 912 (1971). (168) United States v. International Minerals & Chem. Corp., 402 U.S. 558, 565 (1971). (169) Liparota, 471 U.S. at 432. (170) Id. at 432-33. The Court also rejected the government's attempt to analogize the food stamp statute to the federal false statement statute, 18 U.S.C. [sections] 1001 (1982). Id. at 431-32. (171) Id. at 433. (172) Id. at 432 (citing Morissette v. United States, 342 U.S. 246, 252-53 (1952)). Confusingly, the Liparota Court used the term "public welfare offense" differently from more traditional commentators. See, eg., Sayre, supra note 60, at 67-70 (discussing a growing stream of crimes that were punishable without regard to the intent of the actor); Hall, supra note 55, at 327-31 (discussing public welfare offenses in traditional terms); W. Friedmann, Law IN A Changing Society 202 (2d ed. 1972) (explaining that "public welfare offences" are designed for 'the maintenance of certain crucial standards demanded by the proper functioning of a modern industrialized and urbanized society"). (173) Liparota, 471 U.S. at 433. (174) Public welfare offenses do not involve an "awareness of the law" requirement. Id. (175) United States v. Freed, 401 U.S. 601, reh'g denied, 403 U.S. 912 (1971). Freed admitted knowing that he possessed a hand grenade. The issue was whether the government also had to prove that Freed knew it was unregistered. The Court said that it did not. Id. at 607. (176) The defendant could argue a lack of knowledge of the nature of the cargo: "A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered." United States v. International Mineral & Chem. Corp., 402 U.S. 558, 563-64 (1971). (177) 401 U.S. 601, reh'g denied, 403 U.S. 912 (1971). (178) 402 U.S. 558 (1971). (179) 320 U.S. 277, reh'g denied, 320 U.S. 815 (1943); see Freed, 401 U.S. at 609 (indicating that Dotterweich dealt with a public welfare offense). (180) 258 U.S. 250 (1922); see Freed, 401 U.S. at 609 (treating Balint as a public welfare offense case). (181) The Court noted that it was desirable to require awareness of noncriminal law because to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct." Liparota v. United States, 471 U.S. 419, 426 (1985). (182) Id. at 421. (183) 438 U.S. 422 (1978). (184) 355 U.S. 225 (1957), reh'g and modification denied, 355 U.S. 937 (1958); see Freed, 401 U.S. at 608 (indicating that the conduct in Lambert was innocent and contrasting the ordinance at issue with public welfare offenses). (185) Congress could overcome the presumption of mens rea by explicitly and unambiguously indicating, "in the language or legislative history of the statute," that no mens rea was required. Liparota, 471 U.S. at 425. (186) Federal courts do not, of course, have the final say on interpretation of state laws. Thus, the Court could not read an 'awareness of the law" or similar requirement into the ordinance at issue in Lambert. 355 U.S. at 227. Had the Court been able to do so, the ordinance might have been constitutional. (187) 438 U.S. at 446 (1978) (explaining that the mens rea requirement would be satisfied by proof that the defendant was aware of the activities and that these activities would result in price fixing and restraint of trade, but that there was no reason to prove an actual purpose, or 'conscious desire to bring [the likely effects] to fruition or to violate the law" . (188) 471 U.S. at 425. (189) The Court had again reflected this continuum in its analysis in United States v. Freed, 401 U.S. 601, 607-08, reh'g denied, 403 U.S. 912 (1971). (190) Liparota, 471 U.S. at 433. (191) See Lambert v. California, 355 U.S. 225, 228 (1957), reh'g and modification denied, 355 U.S. 937 (1958). 192 Cf. Liparota, 471 U.S. at 425 (asserting the 'awareness of law' requirement in conjunction with a statement about the importance of mens rea); United States v. United States Gypsum Co., 438 U.S. 422, 435-36 (1978) (basing the holding on an assumption that crimes require mens rea). (193) Cheek v. United States, 498 U.S. 192, 201 (1991). The Court did not focus on the innocence of the activity involved in the tax statute, and it mentioned Liparota only once-in a string cite noting the general rule that ignorance of the law is no defense. Id. at 199. Instead, the Court emphasized the complexity of the tax scheme. Id. at 199-200. Nevertheless, the Court's further development of the "public welfare offense" category, discussed infra text accompanying notes 196-227, indicates that the Court easily could have relied on the "innocent activity" rationale as well. (194) Ratzlaf v. United States, 114 S. Ct. 655 (1994). The "innocent activity" approach of Liparota was focal in Ratzlaf. Ratzlaf was convicted of violating 31 U.S.C. [subsections] 5322(a) and 5324(3), which prohibit "structuring transactions with a `purpose of evading the reporting requirements of section 5313(a).'" Id. at 659 (quoting 31 U.S.C. 5324(a) (1988)). Ratzlaf admitted being aware of the banks' reporting requirement and that he purposely structured ids transactions to avoid it. Id. However, in a sharply split opinion (5-4), the Court required the government also to prove Ratzlaf's knowledge that his own activities were prohibited by the law. Id. at 663. The majority reached this holding for several reasons. First, it wanted to ensure that the word "willfulness" was not "treated . . . as surplusage--as words of no consequence." Id. at 659. Second, it wanted to be consistent with previous cases interpreting the term "willfulness" to require knowledge that the activity was prohibited. Id. Finally, the Court saw itself as following Liparota: Currency restructuring is an essentially innocent activity, that is, one that is not "inevitably nefarious." Id. at 660-61. Because structuring is an "innocent" activity, knowledge of restructuring transactions to evade reporting requirements does not amount to awareness of wrongdoing. Id. at 661-62. Therefore, to prove awareness of wrongdoing, the government had to prove awareness of violating the law. Id. at 663. The majority declined to consider legislative history because it found the text of the statute to be clear. Id. at 662-63. In any case, it pointed out that if the text were ambiguous, it would resolve the ambiguity in favor of the criminal defendant. Id. at 662. Finally, the Court denied that it was violating the principle that ignorance of the law is no defense; Congress may decree otherwise in particular contexts and it did so here. Id. at 663. (195) United States v. Posters `N' Things, 114 S. Ct. 1747, reh'g denied, 114 S.Ct. 2771 (1994), involved the retail sale of drug-related items such as pipes, bongs, roach clips, and drug diluents. The defendants were convicted of violating the Mail Order Drug Paraphernalia Control Act, Pub. L. 99-570, [sections] 1822, 100 Stat. 3207-51 (formerly codified as amended at 21 U.S.C. [sections] 857 (repealed 1990)). Id. at 174849. The Court determined that the statute lacked an express scienter requirement. Id. at 1750. The Court also refused to find a scienter requirement in the statute's definitional section. Id. at 1749-52. Nevertheless, the statute still required proof of scienter. Id. at 1752-53. The government could meet the requirement by showing "that the defendant [was] aware that customers in general are likely to use the merchandise with drugs . . . . [by showing] that the defendant knew that the items at issue are likely to be used with illegal drugs." Id. at 1753 (citing United States Gypsum, 438 U.S. at 444 ("knowledge of `probable consequences' sufficient for conviction" (footnote omitted))).

The Court's reference to United States Gypsum implies that the Court was treating the statute here as an "innocent activities offense." However, the Court did not actually say that selling roach clips, bongs, drug diluents, and so forth was an "innocent activity," similar to business activities in antitrust offenses. There is, in fact, an argument that the Court's treatment of the statute in Posters `N' Things is consistent with that of a "public welfare offense." See infra note 287. (196) 114 S. Ct. 1793 (1994). (197) 26 U.S.C. [subsections] 5801-5872 (1988). (198) United States v. Freed, 401 U.S. 601, 607-10, reh'g denied, 403 U.S. 912 (1971). (199) Id. (200) 114 S. Ct. at 1796 (noting testimony that defendant's automatic rifle "fired more than one shot with a single pull of the trigger" . Defendant's weapon thus fit within the statute's regulation of machine guns, defined to include 'any weapon which shoots . . . or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." Id. at 1795 (quoting 26 U.S.C. [sections] 5845(b) (1988)). (201) The weapon in question had been rendered fully automatic by fitting it with other gun parts and filing away a metal stop. Id. at.1796. The metal stop prevented the weapon from firing more than one shot with a single pull of the trigger. Staples claimed that "the rifle had never fired automatically when it was in his possession." Id. (202) Id. (203) Id. (quoting unpublished lower court opinion). (204) 971 F.2d 608, 612-13 (10th Cir. 1992) (concluding "that the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction" . (205) 114 S. Ct. at 1804. (206) Id. at 1797 (citation omitted). Additionally, the Court denied that it was basing its approach "on the rule of lenity, under which an ambiguous criminal statute is to be construed in favor of the accused." Id. at 1804 n. 17. Regardless of the basis for the interpretation, the dissent asserted that the assumption to construe the statute with common-law principles did not apply to an offense that was 'entirely a creature of statute." Id. at 1807 (Stevens, J., dissenting). (207) Id. at 1798-99 (reflecting the government's reliance on the fact that in United States v. Freed, 401 U.S. 601, reh'g denied, 403 U.S. 912 (1971), the Court previously had interpreted the same statute and labeled it a public welfare offense). (208) Id. 1799-1800. The Court agreed with the label, but not with its consequences. It pointed out that in Freed, the defendant had been aware of possessing a type of firearm prohibited by the Act whereas here, Staples denied such knowledge. Id. at 1799. Thus, Freed did not address the legal question at issue in Staples. Id. (209) Id. at 1798. (210) Id. at 1799 (citations omitted). (211) Id. (212) Id. at 1800 (quoting United States v. International Mineral & Chem. Corp., 402 U.S. 558, 565 (1971)). (213) Id. In other words, "that an item is `dangerous,' in some general sense, does not necessarily suggest . . . that it is not also entirely innocent." Id. (214) Id. "Non-innocent" guns include 'the machine guns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation." Id. (215) Id. (216) id. at 1798-1800. THUS it appears that Staples has produced three ways that an activity can be considered "innocent": it can be 1) nondangerous and common, 2) nondangerous and uncommon, or 3) dangerous and common. But cf. Stephen B. Chapman, Comment, Are Obnoxious Wastes More Like Machineguns or Hand Grenades?: Mens Rea Under the Resource Conservation and Recovery Act After Staples v. United States, 43 U. Kan. L. Rev. 1117, 1138 (1995) (asserting that the post-staples test for "public welfare offense" treatment is whether a reasonable person would think the activity was regulated). (217) Justice Ruth Ginsburg, with Justice Sandra Day O'Connor concurring, interpreted the legislative intent of the statute as regulating only the most unusual and dangerous firearms. Id. at 1805. This observation could provide a basis for the Court to decline to apply Staples to statutes that regulate dangerous but more common activities. (218) See infra notes 312-29 and accompanying text (discussing the mental state requirement for common and uncommon activities). (219) Staples, 114 S. Ct. at 1798 n.3 (emphasis added). (220) Id. The Court also said that the term "strict liability" was a "misnomer" for such offenses. Id. (221) The Court has issued another opinion on mental state. United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994). However, the Court treated the statute as one taken from the common law, a category that follows different interpretive rules. Id. at 469; see Morissette v. United States, 342 U.S. 246 (1952), discussed supra at notes 110-13. (222) Liparota v. United States, 471 U.S. 419, 433 (1985). (223) The government does not have to prove defendant's awareness of the law. E.g., United States v. International Minerals & Chem. Corp., 402 U.S. 558, 563-65 (1971) (stating that the prosecution was not required to prove knowledge of the law); see also Staples v. United States, 114 S. Ct. 1793, 1797-98 (1994) (explaining the mental state requirements of public welfare offenses); cf. Eke, supra note 10, at 177-78 (implying that public welfare offenses do not require any degree of awareness at all). (224) The Court has not actually created a label for this category of regulatory crimes, but this Article refers to them as "innocent activity offenses." See supra note 181 and accompanying text. To be the basis of a public welfare offense, an activity must be both dangerous and uncommon. Staples, 114 S. Ct. at 1798-1800. Thus, the Court win treat a crime as an innocent activity offense when it deals with activities that are nondangerous and common, nondangerous and uncommon, or dangerous and common. See supra note 216. (225) United States v. United States Gypsum Co., 438 U.S. 422 (1978). (226) Liparota, 471 U.S. at 419. (227) The Court has never actually explained what it means for an activity to be "dangerous." It has merely given examples of dangerous activities. E.g., United States v. Freed, 401 U.S. 601, 609, reh'g denied, 403 U.S. 912 (1971) (stating that possession of hand grenades is a dangerous activity). (228) See supra notes 60-67 and accompanying text (discussing the early decisions on mens rea). (229) A colleague graciously suggested that the task of writing this Article could be eased if, instead of exploring "general" and "specific" intent, I considered the circumstances under which it was necessary to abandon the common-law maxim "ignorance of the law excuses no one.". See infra notes 231, 257. In fact, others have used this approach in whole or part. See Chapman, supra note 216, at 1125-26, 1141-43 (discussing the mental state requirements in RCRA in terms of mistakes of fact and law), Vitiello, supra note 28, at 247-55 (tracing use of the "ignorance of the law" maxim and exploring whether it is applicable to RCRA offenses). However, I have concluded that a more comprehensive inquiry is necessary. It is probably true that the Liparota Court abandoned the maxim when it required proof that defendant knew he was violating noncriminal law. Liparota, 471 U.S. at 436, 439, 441 (White, J., dissenting). Compare id. at 425 n.9 indicating that the defense required in Liparota concerns "a legal element in the definition of the offense") with Dressler, supra note 24, at 144, 150-52 (indicating that Liparota-type defenses are an exception to the normal maxim). It is also true that exploration of the "ignorance of the law" issue illuminates the basic difference between public welfare offenses" and "innocent activity offenses." However, that study will not easily help answer some of the questions presented by environmental crimes, such as whether the law should require awareness of a fact such as permit status. (230) Before the twelfth century, "the conception of mem rea in anything like its modem sense was non-existent." Sayre, supra note 1, at 981. The twelfth-century concept was also unlike the modem sense of mens rea. The focus then was upon general moral blameworthiness [and] the conception was an exceedingly vague one." Id. at 994. Between the thirteenth and the nineteenth centuries, the concept developed slowly "without any dramatic changes." Frankowski, supra note 9, at 414-15. However, as time progressed, the focus of mens rea gradually shifted from generalized moral wrong to the particular type of moral wrong de- fined by each crime. Sayre, supra note 1, at 994-1004; see also Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan. L. Rev. 681, 686-87 (1983) citing numerous additional sources).

One result of this development was that in crimes now known as general intent" crimes, the prosecution had to prove the defendant's intent to commit the statutorily defined act. A relatively recent example of this is found in Regina v. Faulkner, 13 Cr. Cas. Res. 550 (1877). The defendant, a sailor, was charged under the Malicious Injuries to Property Act for accidently setting fire to the ship while stealing rum. Id. at 550-51, 555. The trial court said that scienter existed, despite the defendant's lack of intent to bum the ship, because the defendant intended to steal nim. Id. at 551, 555. On appeal, the court found that the defendant's general awareness of wrongdoing was not enough to sustain the conviction and that the prosecution had to prove that defendant was "intentional and wilful" with regard to the precise wrong of burning the ship. Id. at 555.

Another result of the shift in the concept of mens rea was the development of what are now called specific intent" crimes. Sayre, supra note 1, at 1019-22. This development came relatively late in the history of mens rea. Id. at 1001 (placing the incipient stages of this development in the early fifteenth century). This more complex sense of mens rea was certainly used by the middle of the seventeenth century, as Sir Edward Coke discussed larceny's "intent to steal" at that time. Hall, supra note 55, at 81-82 citation omitted). By the end of the eighteenth century, in the opinion of one author, the law had begun to prefer an emphasis on the defendant's actual state of mind and to reinterpret earlier doctrine in these terms. Fletcher, supra note 10, at 60-61, 90. For a summary of other sources on the history of mens rea, see Singer, supra note 69, at 461-67. (231) Cheek v. United States, 498 U.S. 192, 199 (1991) (holding that ignorance or mistake of law is usually not a defense); see generally Dressler, Supra note 24, at 141-54; Hall, supra note 55, at 376-87; Glanville Williams, Criminal law 287-345 (2d ed. 1961) (providing a detailed discussion and explanation on ignorance of the law). The notion that ignorance of the law is not a defense first appeared in an opinion issued in 1600 and was reaffirmed a century later by Sir Matthew Hale. Frankowski, supra note 9, at 422. By the 1800s some courts were applying the rule extremely rigidly. Id. However, even this rigid application arguably presented little risk of injustice when criminal laws faithfully reflected prevalent community standards of minimally acceptable conduct." Packer, supra note 97, at 145; accord Mueller, supra note 9, at 1058. Since the law was based on commonly held moral principles, it was per se unreasonable to make a mistake about the law, and such a mistake was no defense. (232) Kadish & Schulhofer, supra note 56, at 230. (233) Id. at 231. For examples of general intent crimes, see infra text accompanying notes 242-43. For a discussion of the role of circumstances in common-law mens rea, see infra note 371. (234) Fletcher, Supra note 10, at 707. In other words, the standard would be whether a reasonable person would be ignorant or make the same mistake. Furthermore, because the test is whether the mistake was reasonable, general intent seems to involve a type of negligence culpability; see also, Packer, supra note 97, at 144 ("Negligence suffices as a mode of culpability whenever the question asked with respect to the actor's perception is not whether he knew but whether he should have known." (235) 96 U.S. 699 (1877). (236) See supra text accompanying notes 76-86. (237) See infra note 259 and accompanying text. (238) Kadish & Schulhofer, supra note 56, at 230; see Dressler, Supra note 24, at 96 n.8, 109; see also LaFave & Scott, supra note 9, at 202 ("'[S]pecific intent' is [used] to designate a special mental element which is required above and beyond any mental state required" for the act of the crime.). Also, like general intent, the term specific intent can be used with different implications. See id. at 201-02 (noting that specific intent can be "taken to mean the mental state required for a particular crime," "limited to the one mental state of intent," or "to denote an intent to do [something) at a particular time and place"). Additionally, many commentators assert that there are three "types' of specific intent; unfortunately, those commentators differ as to both the "types" and the crimes included within comparable categories. Compare, e.g., Dressler, supra note 24, at 109-10 (providing three meanings for specific intent) with Fletcher, Supra note 10, at 453 (providing three meanings for specific intent that differ from Dressler's) and Peter W. Low et al., Criminal Law: Cases and Materials 232 (2d ed. 1986) (providing three meanings for specific intent that do not necessarily coincide with those of Fletcher or Dressler). For a discussion of the role of circumstances in common law mens rea, see infra note 370. (239) Dressler, supra note 24, at 130-31. (240) For example, assume a person commits the criminal act of entering an inhabited home that is posted with "no trespassing" signs. If this is aH that the state can prove, the person will be guilty of the general intent crime of trespass in California. Cal. Penal Code [sections] 555 (West 1988 & Supp. 1995). However, if the state can also prove that at the time of entry the defendant had intended to commit a felony inside the dwelling, the actor will be guilty of the specific intent crime of burglary. Cal. Penal Code [sections] 459 (West Supp. 1995). Furthermore, it is common for specific intent crimes to carry more serious penalties than comparable general intent crimes. Mueller, supra note 9, at 1061-63. Compare Cal. Penal Code [subsections] 460461 (West Supp. 1995) burglary, as demonstrated in this example, carries a penalty of two, four, or six years in prison) with id. [subsections] 19.2, 555.3 (trespass is a misdemeanor that limits punishment to one year in jail). (241) See Perkins, supra note 3, at 266-74, 762 (using common-law felony larceny as an example of a specific intent crime). Perkins explains that while it was morally wrongful and tortious to take "the personal goods of another by trespass and carry[ ] them away," this behavior was not a crime at common law absent proof of the specific intent to deprive the owner of the property permanently. Id. at 265.

A nineteenth-century federal court used this dynamic in discussing a regulatory crime when it stated the following regarding intent:

When an act, in itself indifferent, becomes criminal if done with a particular intent,

then the intent must be proved and found; but when the act is in itself unlawful, the

proof of justification or excuse lies on the defendant, and in failure thereof the law

implies a criminal intent.

United States v. Learned, 26 F. Cas. 893, 895 (E.D. Mich. 1870) (No. 15,580) citation omitted). (242) See supra note 55 (discussing the basic definition of the term ("mens rea"). (243) Perkins, supra note 3, at 216. From the description given, common-law arson is a general intent crime. Id. at 217-20. (244) Dressler, supra note 24, at 109. Dressler adds that "the only mental state required in [the definition of battery] is the state of mind that [defendant] must possess in committing the actus reus of the crime--i.e., [defendant] must apply unlawful force to the person of another (the actus reus) `intentionally' (the `general intent')." Id. (245) Perkins, supra note 3, at 234. (246) In other words, he is guilty of no crime even though he would satisfy the dynamics of "general intent." In the example, Harry more than satisfies "general intent" dynamics, as he is actually aware of the circumstance of the book's ownership; general intent" dynamics require mere negligence about this circumstance. However, it is merely the dynamic, not the substance, of general intent that would be satisfied. See supra note 240. (247) Perkins, supra note 3, at 266-74, 762; see supra note 239. (248) Fletcher, supra note 10, at 115-234. (249) Id. at 115-19, 232-34. (250) Id. at 233. Fletcher posits that early criminal behavior was so unambiguous that the danger to the community was immediately obvious to anyone observing the activity. Id. at 115-16, 232-33. (251) Id. at 120, 731; see also Sayre, supra note 1, at 981, 988. (252) See Fletcher, supra note 10, at 117, 232. (253) Fletcher identifies the shift in approach to mens rea as beginning in the late eighteenth century. Id. at 90. This coincides with the beginning of the era known as the "indus- trial revolution." 6 The New Encyclopedia Britannica 305 (15th ed. 1992). (254) Fletcher, supra note 10, at 88 (explaining that the subjective approach to culpability emerged, at least in part, because the requirement that the act-circumstance combination be manifestly criminal resulted in the inability to convict in certain cases in which wrongdoing was, in fact, involved); see also Mueller, supra note 9, at 1064 (using the term "independent mens rea" for this phenomenon). (255) See Fletcher, supra note 10, at 90-92 (discussing The King v. Pear, 168 Eng. Rep. 208 (1779)). (256) Id. at 118. (257) Cf. Sayre, supra note 1, at 989 ("The early felonies were roughly the extemal mariifestations of the heinous sins of the day."). (258) See supra note 231 explaining why, at common law, mistakes of law were not inconsistent with awareness of wrongdoing). (259) See supra notes 249-51 and accompanying text explaining the concept of manifest criminality). (260) This dynamic, therefore, explains why the statute in Felton v. United States, 96 U.S. 699 (1877), was not a "general intent" crime. Id. at 700. The conduct-circumstance combination was distilling alcoholic beverages with inadequate equipment. Id. This situation, upon view, would not cause the type of horror and fear that evokes the deep moral response required for general intent. (261) E.g., United States v. Freed, 401 U.S. 601, 609, reh'g denied, 403 U.S. 912 (1971) (indicating that people should not be surprised that "highly dangerous offensive weapons" such as hand grenades are regulated). (262) Staples v. United States, 114 S. Ct. 1793, 1799-1800 (1994) asserting that even dangerous items such as guns can be so commonplace as not to give notice of regulation). (263) Liparota v. United States, 471 U.S. 419, 425 (1985). (264) United States v. United States Gypsum Co., 438 U.S. 422, 443 (1978). (265) United States v. Posters `N' Things, 114 S. Ct. 1747, 1753-54, reh'g denied, 114 S.Ct. 2771 (1994). (266) Thus, as interpreted by the Supreme Court, the statute in Felton v. United States, 96 U.S. 699 (1877), discussed at supra notes 76-97 and accompanying text, was also not a tradi- tional "specific intent" crime. The probable consequence-depriving the government of tax money--was not immoral in any traditional sense. (267) United States v. Balint, 258 U.S. 250 (1922). (268) United States v. Dotterweich, 320 U.S. 277, reh'g denied, 320 U.S. 815 (1943). (269) United States v. Freed, 401 U.S. 601, reh'g denied, 403 U.S. 912 (1971). (270) United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971). (271) Liparota v. United States, 471 U.S. 419, 433 (1985). (272) For example, narcotics were at issue in United States v. Balint, 258 U.S. 250 (1922), and people generally agree that drugs can cause death and violence and lead to increased crime. In addition, the States Court implied that such consensus also exists regarding the most dangerous types of firearms. Staples v. United States, 114 S. Ct. 1793, 1800 (1994). (273) For example, the transfer of dangerous drugs poses the risk of death or addiction to users and damage to the person and property of the victim of those users. The marketing of packaged food and drugs endangers the health of consumers if the products are impure or mislabeled. The transport of dangerous chemicals can cause physical harm to persons and property if the chemicals are spilled. The harm presented by fireams such as automatic weapons and hand grenades is too obvious to need elaboration. But see Barrett & Clarke, supra note 10, at 872 (defining the focus of public welfare offenses expansively to include protection of the environment generally rather than property specifically). (274) Balint, 258 U.S. at 254 recognizing that the public welfare offense involved in the case had a moral dimension). For a discussion of the related question of whether Congress or the Court should declare the existence of a moral consensus, see infra notes 409-31 and accompanying text.

In addition, some commentators have noted a moral dimension in at least some public welfare offenses. E.g., Fike, supra note 10, at 181 ("In view of the widely known dangers of improper disposal of hazardous wastes, Congress may have assumed that every person who did not ensure that hazardous wastes were disposed of properly would or should be conscious of wrongdoing."). However, other commentators doubt that such a dimension exists. For example, one writer agrees that the dynamics of public welfare offenses are similar to those of general intent crimes, but he asserts that it is unlikely that public welfare offenses are based on common morality or shared cultural understanding[s]." Grace, supra note 10, at 1409. Grace supported his assertion with a cite to Justice Potter Stewart's dissent in United States v. International Minerals & Chem. Corp., 402 U.S. 558, 569 (1971) (Stewart, J., dissenting). The dissent here supposes that a layperson "who had never heard of the regulation" would deliver the article to the common carrier and depend upon the carrier to see that it was properly labeled and that the shipping papers were in order." Id. (Stewart, J., dissenting). This observation, even if true, does not support the conclusion that the layperson is unaware that shipping dangerous materials is regulated; it supports the conclusion that the layperson is unaware of the details of the regulation, a separate issue.

Sayre expressed a slightly different point of view, namely that the criminal law in general was shifting away from a normative emphasis and that regulatory crimes were merely at the forefront of the movement. See Sayre, supra note 1, at 1017 (explaining that historically the mental element of crimes had shifted from a focus upon "a mind bent on evil-doing" to "an intent to do that which unduly endangers social or public interests"). However, it is possible that Sayre failed to recognize a swift in the content of normative reactions. In other words, the modem meaning of evil-doing may have been evolving even as Sayre wrote his analysis. (275) E.9., Robert H. Nelson, Tom Hayden, Meet Adam Smith and Thomas Aquinas, Forbes, Oct. 29, 1990, at 94 criticizing those who would raise the protection of nature itself to a moral imperative, yet implying that it is wrong to engage in environmentally harmful practices that present a threat to human health and safety). (276) The majority of society still does not consider these activities to have serious moral implications absent proof of some affirmative decision to violate a known law. Williams, supra note 231, at 84 (explaining that fraud, dishonesty, and "wickedness' involve "a partial reversion to the older [normative] meaning of mens rea"); Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. Chi. L. Rev. 423, 44445 (1963) (stating that a person's "choice to act in defiance of the criminal prohibition may be regarded as in some measure furnishing an independently adequate ground for condemnation").

The Court's apparent use of the innocent activity category in Lambert v. California, which dealt with an ordinance requiring registration of felons, is more complex. See supra notes 121-25 and accompanying text. It is possible to argue that the presence of unregistered felons in an urban area presents threats to the physical health and safety of the community. However, the risk is more theoretical than real: not all convicted felons are recidivists, not all felons commit violent crimes, and former felons do not commit all violent crimes. (277) See infra part IV.B. (278) Staples v. United States, 114 S. Ct. 1793, 1799 (1994) indicating that ownership of some guns must be considered an "innocent" activity because of the "long tradition of widespread lawful gun ownership by private individuals in this country"). (279) United States v. Dotterweich, 320 U.S. 277, 284-85, reh'g denied, 320 U.S. 815 (1943) (implying that violation of the Federal Food, Drug, and Cosmetic Act is a public welfare offense without actually labeling it as such); United States v. Park, 421 U.S. 658, 668 (1975) (using the same interpretation when food was involved). (280) The Staples Court said that "regulation in itself is not sufficient to place gun ownership in the category of [public welfare offenses] . . . we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct." 114 S. Ct. at 1801 emphasis,added). (281) The Court has, of course, used degrees of regulation to distinguish among types of businesses for Fourth Amendment purposes. For example, the "administrative search" exception to the warrant requirement allows government agencies to search without even an administrative warrant when authorized by statutes adequately directed to a "closely regulated business." E.g., New York v. Burger, 482 U.S. 691, 703 (1987) (allowing warrantless search of an automobile junkyard business). Regarding statutes directed to businesses in general, the Constitution requires the government to have an administrative warrant or similar authorization. E.g., Marshall v. Barlow's, 436 U.S. 307, 325 (1978) (holding the Occupational Safety and Health Act unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent" . However, it seems unlikely that turns distinction would work in the present context because "closely regulated businesses' result from having regulations directed specifically at their industry. Marshall, 436 U.S. at 313. Therefore, while those who treat, store, and dispose of hazardous waste may be considered "closely regulated businesses" because of RCRA, generators of waste may not because RCRA rules for generators apply to a wide variety of industries. 42 U.S.C. [subsections] 6921-6922 (1988). (282) United States v. United States Gypsum Co., 438 U.S. 422, 443-46 (1978). The court noted:

The business behavior which is likely to give rise to criminal antitrust charges is conscious

behavior normally undertaken only after a full consideration of the desired

results and a weighing of the costs, benefits, and risks . . . . Where carefully planned

and calculated conduct is being scrutinized in the context of a criminal prosecution,

the perpetrator's knowledge of the anticipated consequences is a sufficient predicate

for a finding of criminal intent.

Id. at 445-46. (283) The Court, by stating the passage quoted in supra note 282, carne close to articulating a "business community" rationale for the United States Gypsum holding. (284) Liparota v. United States, 471 U.S. 419 (1985). (285) Id. at 420 (quoting 7 U.S.C. [sections] 2024(b) (1982)). (286) See id. at 436 (White, J., dissenting). The majority did not disagree that the statute used a sort of 'shorthand"; rather, the opinions differed over the legal effect of such drafting. Id. at 425 n.9. (287) The statute in United States v. Posters `N' Things, 114 S. Ct. 1747, reh'g denied, 114 S.Ct. 2771, reh'g denied, 114 S.ct. 2771 (1994), is somewhat harder to categorize. The Court hinted that it was similar to the statute in United States Gypsum because, in both cases, the mens rea consisted of awareness of probable consequences. Id. at 1753 (discussing United States Gypsum). It is true that in Posters `N' Things the defendants' apparently innocent activities (selling retail merchandise) had probable consequences that violated the law (aiding the buyer's use of prohibited drugs). Id. at 1749. Thus, as in United States Gypsum, awareness of the consequences and awareness of violating the law are o-ne and the same and amount to mens rea. However, it is also possible to argue that the statute in Posters Ar, Things is a "public welfare offense." As suggested above, these offenses involve activities that are uncommon and present a nonspeculative risk of direct physical harm to people or their property. See supra notes 222-23 and accompanying text. The Court has treated the actual transfer of prohibited drugs as a public welfare offense. United States v. Balint, 258 U.S. 250 (1922); see supra notes 98-108 and accompanying text. It is a relatively small step to include the transfer of tools whose probable use is to aid in the ingestion of prohibited drugs. From this perspective, the sale of drug paraphernalia is a dangerous activity, and awareness of engaging in it must amount to the type of mens rea at issue in public welfare offenses. (288) 16 U.S.C. [sections] 703 (1994). (289) Even if "taking" a migratory bird were "dangerous," it often occurs through activities like hunting and agriculture that are arguably common enough to fall into the Staples rule. See supra notes 224-26 (discussing the "common" exception set out in Staples). However, for purposes of this section, the Staples considerations will be held constant. (290) But see Webber, supra note 10, at 53-54 (assuming without discussion that violating any "environmental statute" is a public welfare offense); Robert 1. McMurry & Steven D. Ramsey, Environmental Crime: 7he Use of Criminal Sanctions in Enforcing Environmental Laws, 19 Loy. L.A. L. Rev. 1133, 1151 (1986) (assuming the same). In addition, some courts and commentators define a public welfare offense as a statute whose purpose is to protect human health and the environment. Eg., United States v. Self, 2 F.3d 1071, 1091 (10th Cir. 1993) (describing RCRA as a "public welfare statute which was designed'to protect the human health and the environment'" (quoting 42 U.S.C. [sections] 6924(a) (1988), citation omitted)); United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 46 (1st Cir. 1991) (reflecting the same view); Barrett & Clarke, supra note 10, at 872 "noting that" [w]hat qualifies RCRA as a public welfare statute is its underlying purpose, 'to promote the protection of health and the environment" (quoting 42 U.S.C. [sections] 6902(a) (1988))). It is important to note that these courts and commentators were writing before the Court's decision in Staples v. United States, 114 S. Ct. 1793 (1994), which changed the analysis by adding that even if an activity is "dangerous," as long as it is also "commonplace," it does not constitute a public welfare crime. See supra notes 224-27 and accompanying text (discussing the dangerous and commonplace distinctions). The Staples analysis makes it less likely that many environmental crimes are public welfare offenses, even when the activities they regulate are dangerous. (291) Cf. Saving Creatures Great and Small, U.S. News & World Rep., Dec. 5, 1988, at 13 (providing examples of biomedical research on animals conducted to benefit humankind); J.D. Reed, The Furor over Wearing Furs, Time, Dec. 18, 1989, at 72 (reflecting the fur industry's view that fur coats are a "natural fabric whose production does not pollute the environment or use fossil fuels"; Claudia Wallis, Should Animals Be Patented?, Time, May 4, 1987, at. 110 (quoting Benard Davis, Harvard microbiologist, who explained that "[g]enetic engineering in animals is simply an extension of domestication [that] probably has the best record of enormous benefits to human beings" . But see Lynn White, Jr., The Historical Roots of Our Ecological Crisis, in The Environmental Handbook 3 (John Barr ed., 1971) (suggesting that the human race must rethink its relationship with nature). (292) See, e.g., Kent Greenawalt, The Limits of Rationality and the Place of religious Conviction: Protecting Animals and the Environment, 27 Wm. & Mary L. Rev. 1011, 1031-32 (1986) (noting that some individuals weigh animal interests as equal to human interests); Robert H. Nelson, Unoriginal Sin: The Judeo-Christian Roots of Ecotheology, 53 Pol'y Rev. 52, 52 (1990) ("Many environmentalists today have no objection to the characterization of their outlook as a religion."). (293) See Greenawalt, supra note 292, at 1031 ("[A]n extreme priority for human interests .. can be viewed as the import of present law." , 1032 (stating that almost any human interest takes precedence today and few people grant animals equal moral status with humans). Robert Nelson exemplified the anthropocentric attitude when he wrote: "Most Americans today consider themselves environmentalists. They want cleaner air, whiter beaches and less cancer. But they want these things for practical reasons, to advance human well-being, not because they believe humanity is the destroyer of the earth." Nelson, supra note 275, at 94. Nelson labels nonanthropocentric environmentalism as "religious environmentalism" and treats it as something opposed to science and common sense. Id. He also criticizes religious environmentalism for wanting to protect nature even when no harm to human beings is involved. Id. Even some animal rights activists adopt an anthropocentric approach. For example, John Wiley points out that Peter Singer, in his 1975 book Animal Liberation, denounces only those animal experiments that. have no real application to human well-being .... He does not demand we stop all experimentation at once: "All we need to say is that experiments serving no direct and urgent purpose should stop immediately, and in the remaining fields of research, we should, whenever possible, seek to replace experiments that involve animals with alternative methods that do not.' John P. Wiley, Jr., Phenomena, Comment and Notes, Smithsonian, June 1990, at 24, 26 (quoting without pinpoint citation PETER Singer, Animal Liberation (1975)). (294) See Greenawalt, supra note 292, at 1011. (295) As previously discussed, underlying the concept of public welfare offenses is a moral consensus about physically dangerous activities. As with general intent crimes, this moral consensus provides the basis for the presumption that people know that a dangerous activity is regulated. Of course, the Court could declare that a moral consensus exists or that enactment of a felony statute reflects Congress's finding that a consensus exists; however, in a pluralistic society such as ours, a conservative approach as to the existence of consensus may be the wisest and fairest course. Restraint may also be advisable because moral viewpoints change over time. In fact, the consensus that pollution is dangerous to health and safety is only a recent phenomenon. Michele Kuruc, Comment, Putting Polluters in Jail: The Imposition of Criminal Sanctions on Corporate Defendants Under Environmental Statutes, 20 LAND & WATER L. Rev. 93, 93-94 (1985). Logically then, at some future point, a consensus may exist as to the immorality of activities that harm the environment without directly endangering humans. If this occurs, and morality becomes less anthropocentric, the category of modern general intent crimes should expand, regardless of whether these new crimes would be labeled as public welfare offenses. (296) United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal. , affd per curium, 578 F.2d 259 (9th Cir. 1978); cf. United States v. Brandt, 717 F.2d 955, 958-59 (6th Cir. 1983) (per curiam) (holding that the MBTA's lack of mens rea was constitutional in light of the public welfare nature of the offense); United States v. St. Pierre, 578 F. Supp. 1424, 1428 (D.S.D. 1983) (noting that classic "public welfare" offense cases set the standard for judging the constitutionality of a statute not requiring mental state); United States v. Atkinson, 468 F. Supp. 834, 837 (E.D. Wis. 1979) (holding the MBTA constitutional despite its lack of a mens rea requirement because Congress was exercising "its regulatory powers for the public welfare ... for the purpose of achieving some social good" . However, rather than determining a modem meaning for the public welfare category, these courts may just have been focusing on old MBTA cases. See United States v. Schultze, 28 F. Supp. 234, 235-36 (D. Ky. 1939) (holding that Congress can do away with the element of scienter in certain statutory crimes); United States v. Reese, 27 F. Supp. 833, 834 (D. Tenn. 1939) (holding the same); see also infra part H.B. (297) 806 F.2d 425 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987). (298) Id. at 435 (quoting United States v. Freed, 401 U.S. 601, 609, reh'g denied., 403 U.S. 912 (1971)). (299) Id. at 435-36 The capture and sale of species protected by the MBTA is not 'conduct that is wholly passive"' (quoting Missouri v. Holland, 252 U.S. 416, 435 (1920))). This distinction was important to the Court's holding in Lambert v. California, 355 U.S. 225, 228 (1957), reh'g and modification denied, 355 U.S. 937 (1958). See supra notes 121-25 and accompanying text (discussing Lamben in greater depth). (300) Engler, 806 F.2d at 425-36 ("The capture and sale of [protected] species ... closely resembles conduct 'that one would hardly be surprised to learn ... is not innocent."' (quoting Missouri v. Holland, 252 U.S. 416, 435 (1920))). (301) Id. (302) Id. at 441 (Higginbotham, J., concurring in result) ("[Public welfare offenses] regulate conduct that poses a threat to the public safety. The protection of migratory birds, albeit a legitimate issue of public concern, can hardly be equated with the health and safety concerns associated with hand-grenades and drug distribution." . (303) United States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal.), affd per curiam, 578 F.2d 259 (9th Cir. 1978). (304) See id. at 536 ("The instant case is one in which the guilty act alone is sufficient to make out the crime. When dealing with pesticides, the public is put on notice that it should exercise care to prevent injury to the environment and to other persons . . . ." . In fact, Congress, in drafting the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [sections] [sections] 136-136y (1994), has dealt with the threats to the physical safety of persons and property posed by pesticides. However, one should bear in mind that using pesticides may be too "common" an activity to form the basis of a public welfare offense. See supra note 224. (305) In fact, the Liparota Court based its analysis in part on the way the face of the statute could be applied to factual situations even more innocent o the one presented by the case before it. Liparota v. United States, 471 U.S. 419, 426-27 (1985). While the defendant in the case was charged with illegally purchasing food stamps for less than their face value, which was considered an illegal transfer, the broad language of the statute could just as easily implicate an innocent person who, for example, mistakenly used the food stamps at a nonapproved store. Id. (306) Federal Water Pollution Control Act (Clean Water Aco, 33 U.S.C. [subsections] 1251-1387 (1988). (307) 33 U.S.C. [sections] 1319(c)(2)(a) (1988 & Supp. V 1993). This provision was added in 1987 when Congress amended the Act to increase penalties and substitute "knowing" for the previous mental state requirement of "willfully." Water Quality Act of 1987, Pub. L. No. 1004, [sections] 312, 1987 U.S.C.C.A.N. (101 Stat.) 43 (codified as amended at 33 U.S.C. [sections] 1319(c)(2)(a) (1988 & Supp. V 1993)); United States v. Weitzenhoff, 35 F.3d 1275, 1283-84 (9th Cir. 1993), cert. denied, 115 S. Ct. 939 (1995). (308) Weitzenhoff, 35 F.3d at 1286 (implying that the CWA is a public welfare offense); United States v. Law, 979 F.2d 977, 980 (4th Cir. 1992) (assuming the same without analysis), cert. denied, 113 S. Ct. 1844 (1993); cf. United States v. Ouelette, [1977] 11 Env't Rep. Cas. (BNA) 1350 (E.D. Ark. Sept. 19, 1977) (deciding the same under the former version of the statute). (309) See 33 U.S.C. [sections] 1319(c)(2)(a) (1988 & Supp. V 1993) (criminalizing knowing violations of sections 301, 302, 306, 307, 308, 311(b)(3), 318, and 405). Hazardous pollutants include such substances as oil, formaldehyde, dichloridiphenyl-trichlorethane (DDT), bleach, chloroform, and polychlorinated biphenyls (PCBs). See 40 C.F.R. [sections] 116.4B (1995) (comprehensive list of hazardous substances). (310) For example, by reference to section 301, 33 U.S.C. [sections] 1311 (1988), section 309(c)(2)(a) criminalizes the "discharge of any pollutant" except in compliance with other provisions of the Act. 33 U.S.C. [sections] 1319(c)(2)(a) (1988 & Supp. V 1993). When read in conjunction with other relevant sections of the Act and the applicable regulations, this provision can authorize felony criminal sanctions for dumping sand into wetlands. See 33 U.S.C. [subsections] 1362(6) (1988 Supp. V 1993) "defining pollutant" to include sand), 1362(12) (defining "discharge of any pollutant" to mean "any addition of any pollutant into navigable waters from any point source"), 1362(14) (defining point source to include a variety of outlets), 1362(7) "defining navigable waters" to include "waters of the United States"); 40 C.F.R. [sections] 230.3(s), (t) (1995) defining (waters of the United States' to include wetlands); see also 33 U.S.C. [sections] 1344(a) (1988 & Supp. V 1993) (governing the issuance of permits for the discharge of "dredged or fill material" into "navigable waters" at specified disposal sites). I wish to thank Frank M. Flynn, a student in my 1991 Environmental Crimes Seminar, whose unpublished paper, Criminal Mental State Requirements and Their Application to Section 404 of the Clean Water Act, raised and explored these issues. Any errors or misunderstandings in the treatment of the problem, however, are my own. (311) Again, the Staples element of "commonness" is being held constant for the purposes of this discussion. See supra note 224 and accompanying text. (312) 114 S. Ct. 1793 (1994). See supra notes 223-24 and accompanying text (discussing the Staples analysis of public welfare crimes). (313) Staples, 114 S. Ct. at 1800. (314) Id. (315) Liparota v. United States, 471 U.S. 419, 425 (1985). (316) Id. at 425-26. (317) 42 U.S.C. [sections] 6928(d) (1988). (318) See, eg., United States v. Self, 2 F.3d 1071, 1090 (10th Cir. 1993) (assuming that the public welfare category includes protection of the environment); United States v. Baytank, Inc., 934 F.2d 599, 612 (5th Cir. 1991) (assuming the same); United States v. MacDonald Watson Waste Oil Co., 933 F.2d 35, 46 (1st Cir. 1991) (assuming the same); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990) (assuming the same without using the term public welfare offense), cert. denied, 499 U.S. 919 (1991); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667-68 (3d Cir. 1984) (concluding that RCRA is a public welfare offense), cert. denied, 469 U.S. 1208 (1985); Barrett & Clarke, supra note 10, at 872 (defining a public welfare offense as a statute whose purpose is to protect human health and the environment); Brian E. Common, Jr., Comment, Criminal Sanctions for Environmental Crimes and the Knowledge Requirement: United States v. Hayes International, 786 F.2d 1499 (11th Cir. 1986), 25 Am. Crim. L. Rev. 535, 544 (1988) (assuming without discussion that RCRA is a public welfare offense); Judith Ianelli, Note, Lessening the Mens Rea Requirement for Hazardous Waste Violations, 16 VT. L. Rev. 419, 421 (1991) (agreeing with the characterization of RCRA as a public welfare offense); McMurry & Ramsey, supra note 290, at 1151 (stating that the public welfare category encompasses an interest in "protecting...environmental safety" and that public welfare offenses have liability requirements that are less stringent than most criminal statutes). But see Fike, supra note 10, at 179-80 (doubting that RCRA is a public welfare offense, primarily because the statute includes the mental state word "knowing" . However, Fike does agree that Congress considered the handling of hazardous waste to be an activity that poses danger to the community's health and safety. Id. at 179. (319) See 42 U.S.C. [sections] 6901(b)(2) (1988) ("[Dlisposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment." ; see also id. [subsections] 6901(b)(3)-(5) (noting the relationship between hazardous materials and health risks; 6903(5) (defining hazardous waste). (320) Accord Chapman, supra note 216, at 1137-38 (noting that hazardous waste management is not uncommon and that for this reason dangerousness alone might not alert some people that regulation is involved). (321) 42 U.S.C. [sections] 6922 (1988). The only generators of waste exempt from RCRA requirements are those generating "no more than 100 kilograms (about 220 pounds or 25 gallons) of hazardous waste and no more than 1. kg (about 2 pounds) of acutely hazardous waste in any calendar month..." U.S. Envtl. Protection Agency, Understanding the Small Quantity Generator Hazardous Waste Rules: A Handbook for Small Business 6-7 (1986) [hereinafter Handbook for Small Business]. Questions also arise regarding other aspects of RCRA. For example, it is unclear whether transporting hazardous waste would be considered a common or an uncommon activity. See 42 U.S.C. [sections] 6923 (1988). On the other hand, treating, storing, and disposing of hazardous waste is more likely to be considered an uncommon activity. See 42 U.S.C. [sections] 6924 (1988 & Supp. V 1993). (322) Handbook for Small Business, supra note 321, at 4-5. (323) See supra notes 222-23 and accompanying text (discussing this interpretation). Only one circuit has held that the government must prove some awareness of the law to convict under RCRA, and its holding was not based upon the reasoning outlined here. United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3d Cir. 1984), cert. denied, 469 U.S. 1208 (1985). (324) See supra part II.B (discussing whether MBTA-regulated activities are dangerous for purposes of categorizing them as public welfare offenses). (325) See supra notes 306-10 and accompanying text (discussing the Clean Water Act). (326) The Court downplayed the proof problem in Liparota by pointing out that knowledge could be proved by circumstantial evidence. Liparota v. United States, 471 U.S. 419, 434 (1985). In Liparota, such evidence consisted of furtive, backroom behavior. Id. at 434 n. 17. In the RCRA context, an example of such behavior is "midnight dumpers," who sneak under cover of darkness to dispose of hazardous waste. However, the government is increasingly using RCRA to prosecute seemingly legitimate businesses whose overt behavior would be difficult to use as circumstantial evidence of knowledge of the law. (327) For example, RCRA provides for civil penalties up to $25,000 for each violation; each day of noncompliance counts as a separate violation. 42 U.S.C. [sections] 6928(g) (1988). (328) See supra note 216. (329) Staples v. United States, 114 S. Ct. 1793, 1797-98 (1994). (330) Liparota v. United States, 471 U.S. 419, 432-33 (1985) (noting that public welfare offenses are so threatening to the health and safety of a community that a person engaging in such an activity "should know" his activity is regulated). This conclusion comports with the holdings of lower federal courts as well. See supra notes 304-05 and accompanying text. (331) See supra notes 222-23 and accompanying text. (332) See id. (discussing general intent criminality); cf. Fike, supra note 10, at 192 (using standard legislative history analysis to conclude that Congress intended RCRA to be a general intent statute). (332) See supra notes 130-39 and accompanying text. (334) Staples v. United States, 114 S. Ct. 1793, 1798 (1994) (admitting that permit status remained a strict liability element, but denying that the statute as a whole was truly a strict liability crime because the government still had to prove defendant's awareness of engaging in a dangerous and uncommon activity). (335) See Dressler, supra note 24, at 329 (explaining that inchoate crimes such as attempt, solicitation, and conspiracy criminalize conduct before the criminal end is achieved). Inchoate basically means incomplete, for in these crimes, while there may be a danger of harm, the harm is not actually realized. Id. (336) Eg., id. at 339, 365, 384 (requiring specific intent for attempt, solicitation, and conspiracy). In these inchoate crimes, the conduct already committed has not caused criminal harm, so it is not wrongful enough to support inferences of general intent; therefore, the prosecution must prove awareness of wrongdoing by offering independent evidence of the actor's purpose to achieve the target harm. (337) For example, assume that a person shoots a gun at another individual and misses. The person has clearly presented an actual risk of physical harm to a human being; nevertheless that person will not be convicted of attempted homicide without proof of an intent to kill the victim. While such intent might be easy to prove, it is also possible that the defendant would be able to raise a reasonable doubt whether that intent to kill existed. (338) Public welfare offenses do not present the fact of physical harm, but the possibility of future harm. For example, the transfer of dangerous drugs presents the possibility of death, addiction, and property damage but only if the drugs are misused. Similarly, the marketing of packaged food and drugs may endanger the health of consumers but only if the products are impure or mislabeled. The transport of dangerous chemicals may also cause physical harm to persons and property but only if the chemicals are spilled. Finally, the possession of firearms presents the risk of death or injury but only if the firearms are used unwisely. In other words, in these examples the activities themselves are inchoate as to the ultimate harm that they risk. (339) See supra notes 222-23 and accompanying text. (340) Some common-law crimes have both inchoate and completed aspects. For example, in burglary, the crime is complete as to the harm of breaking and entering the dwelling of another but inchoate as to the realization of the felony meant to be committed inside. See Dressler, Supra note 24, at 333-34. In burglary, the specific intent element is the intent to commit a felony inside the dwelling, that is, intent as to the harm that has not been realized. Id. at 109-10, 333. On the other hand, the harm of breaking and entering has been realized, and awareness of engaging in that conduct probably should be considered a general intent element. Cf. id. at 109. 341 For example, it seems inevitable that if chemicals are transported, some will spill, or if hazardous wastes are stored, some will leak into the groundwater. This same sense of inevitability or fatalism may exist regarding mass-marketed food and drugs, because sooner or later some will become tainted, spoiled, or misbranded. Similarly, if guns are possessed, some bullets will wound or kill people; if drugs are sold illegally, some people will become addicted. It may be that people feel this inevitability more when the activities are unregulated, but the feeling persists even with regulated activities. 342 When a spill, leak, or discharge occurs, large numbers of people and property can be damaged at once. The same can be said for mass-marketed food and drugs. The mass effects of illegal drugs and guns are sligthly different because if drugs are sold or guns are possessed, a mishap may not harm numerous victims all at once. Nevertheless, the widespread sale of illegal drugs or possession of guns produces a huge number of potential victim. In general, public welfare offenses, even when regulated, contain a potential for societal disaster on a scale that is not represented by "general intent" activities. 343 Two factor becomes more evident upon contrasting general intent activities such as housebreaking and assault. Although these activities will inevitably occur, one can often keep from becoming a victim or at least maintain some sense of control by looking the doors, installing an alarm system, avoiding dark alleys, and so forth. However, with public welfare offense activities, there is really no sense of personal control or self-protection. United States v. Dotterweich, 320 U.S. 277, 280, reh'g denied, 320 U.S. 815 (1943). Again, the characteristic is clearest for the transportation of dangerous chemicals or the handling of hazardous waste. No single nonparticipant can avoid being in the vicinity of a spill; group action, such as organizing and training to respond to spills, can only mitigate the harm, not prevent or undo it. Harvard Divinity School's Timothy Weiskel illustrates this realization in his response to the suggestion that church participation in the environmental movement can make a difference: "Multiple acts of 'private piety' prompted by religious leaders--climbing stairs instead of talking the elevator, avoiding toxic fertilizers and pesticides, driving a fuel-efficient car--will not lead to collective salvation . . . . 'When you are living in a powder magazine...ft is better to curse the darkness."' Betsy Carpenter, 7he Greening of the Churck, U.S. News & World Rep., Nov. 27, 1989, at 67 (quoting Timothy Weiskel of the Harvard Divinity School).

Again, the dynamic is slightly different for illegal drugs and guns. People have some control over whether or not they become addicted to drugs; however, they have no real control over the effects that drugs have on society as a whole. The same could be said for firearms, although individuals are on shakier ground when they must live in high-crime areas or are faced with mass murderers with guns. (344) The moral significance of these fear factors is also seen when one considers pre-industrial societies. In such societies, arguably, the only forces that had these same characteristics were those produced by the government (most notably war) or by nature (for example, plague, drought, or famine). While the latter were considered acts of God, and so outside the realm of human morality, the former were within the realm of human morality, as witnessed by the notion of unjust wars and by the attempt of governments throughout history to convince their subjects that God was on their side. (345) An exception to this statement is that we do not officially allow or encourage people to buy and sell illegal drugs. However, society does not consider it wrongful to sell drugs per se, since we allow and encourage pharmaceutical companies, pharmacists, and doctors (not to mention cigarette and liquor producers) to do it all the time.

Firearms are another ambiguous item because, while some might disagree, as a society we do not consider possessing firearms to be wrongful in and of itself. (346) E.g., Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342-43 (1952) (To convict a defendant of violating an Interstate Commerce Commission regulation the government "not only must prove that [defendant] could have taken another route which was both commercially practicable and appreciably safer [but also that defendant] knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or . . . willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.").

(352) See supra note 125. (353) United States v. Freed, 401 U.S. 601 (1971). Justice Brennan observed that proof of intent regarding registration status involves "proof of circumstances that involve a legal element, namely whether the grenades were registered in accordance with federal law. The knowledge involved is solely knowledge of the circumstances that the law has defined as material to the offense." Id. at 615 (Brennan, J., concurring in judgment). Justice Brennan went on to define the issue as whether the defendant was aware that "the grenades were unregistered or negligently or recklessly failed to ascertain" status. Id. at 614-15 (Brennan, J., concurring in judgment) (emphasis added). This is far different from holding that no mental state at all has to be proved and is basically identical to the conclusion that will be reached in this Article. (354) See supra notes 323-29 and accompanying text (discussing the "awareness of law" requirement in innocent activity crimes). (355) The following discussion is based on the question of whether or not of a permit itself exists. However, the same type of analysis is valid for the question of what the permit means, which was raised in Weitzenhoff. See supra notes 350-51 and accompanying text. (356) 42 U.S.C. [section] 6928(d)(2)(A) (1988). (357) See supra notes 245-49, 254-57 and accompanying text (discussing the dynamics underlying general intent crimes). (358) County Court of Ulster County v. Allen, 442 U.S. 140, 157 (1979). The Allen court stated the following regarding proof through inferences:

The most common evidentiary device is the entirely permissive inference . . . which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. . . . When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. Id.

Furthermore, the Allen Court noted that permissive inferences raise constitutional issues "only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." Id. The Allen Court also determined that permissive inferences on elements of a crime are constitutional if there "is a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." Id. at 165 (quoting Leary v. United States, 395 U.S. 6, 33 n.56 (1969)). (359) To prove mens rea, the government is not required to prove defendant's awareness of the law (for example, the definition of a substance as "hazardous" or the permit requirement). This is consistent with both the Court's outline of public welfare offense requirements, see supra note 231, and with the general rule at common law, see supra note 257; accord Fike, supra note 10, at 177, 193 (stating that if RCRA is a general intent crime, the prosecution need not prove knowledge of illegality). Furthermore, like awareness of criminality in traditional general intent crimes, see supra note 230 and accompanying text, this knowledge of the regulation is not an element of the crime. For this reason, the conclusive presumption is not unconstitutional. See Allen, 442 U.S. at 165; Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); Leary v. United States, 395 U.S. 6 (1969); Tot v. United States, 319 U.S. 463 (1943); see generally Dressler, supra note 24, at 57-62 (discussing different aspects of the nature of prescriptions). (360) Courts agree that the government must prove the defendant's knowledge of the fact that the material handled was "dangerous." See supra note 339 and accompanying text; see also Fike, supra note 10, at 177 (asserting that the prosecution has to show that the "defendant knowingly transported what he or she knew was a hazardous waste material"). The point is that the government can meet its burden by use of a permissive inference, and the facts of most RCRA cases, including the details of how the material was handled, should be sufficient to make this inference constitutional under Allen. See supra note 358. (361) The logic supporting this inference would start with the defendant's knowledge of handling hazardous material. Since the material is hazardous, the defendant is conclusively presumed to know that it must be regulated and require some type of permission to handle it. United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986). Therefore, it is logical to assume that a person with the defendant's knowledge would inquire whether permission in fact existed, and if no permission existed, the inference arises that the defendant knew this. (362) For example, it might be difficult for the government to prosecute a custodial service worker who disposes of hazardous waste on directions from superiors. However, it is arguable that in such a scenario, prosecution of the superiors is the more defensible approach for the government. (363) See infra note 368. (364) See Fike, supra note 10, at 193 (agreeing that a reasonable mistake regarding permit status should be a defense to a RCRA charge). The Supreme Court impliedly recognized this analogy in early attempts to resolve the regulatory crime problem. Felton v. United States, 96 U.S. 699, 703 (1877). The Felton Court indicated that defendant's unreasonable failure to know the capabilities of new equipment could be a basis for conviction. Id. While the "public welfare offense" category was developed long after the Felton case, it would not be illogical to categorize the distillation of liquor, a drug, as an activity dangerous to the community's health and safety and, therefore, possibly a "public welfare offense." Cf. United States v. Dotterweich, 320 U.S. 277, 284-85, reh'g denied, 320 U.S. 815 (1943) (dealing with the regulation of food and drugs); United States v. Balint, 258 U.S. 250, 254 (1922) (dealing with the regulation of narcotics). (365) An unreasonable mistake is a negligent mistake. See supra notes 233-34, 259 and accompanying text. Since awareness of permit status would be an element of the crime, the government would have to prove negligence beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 210 (1977) ("[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of [a crime].").

It is important to note that the analogy to general intent crimes will probably require reexamination of the "wilful blindness" doctrine. This doctrine permits the government to prove "knowledge" of a fact by showing that the defendant was unaware of the fact due to "a conscious purpose to avoid learning the truth." United States v. Jewell, 532 F.2d 697, 704 (9th Cir.) (quoting the trial court's instruction), cert. denied, 426 U.S. 951 (1976). However, the prosecution must show a purposeful ignorance, not merely that the "defendant was mistaken, recklessly disregarded the truth, or negligently failed to inquire." United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir. 1985). Applying these rules to the current problem, the prosecution would have to show deliberate ignorance, not merely negligence, about permit status.

However, there is a good argument for modifying the current federal doctrine to allow conviction on proof of negligence. Although the "willful blindness" doctrine is evident in the common law, especially in England, the doctrine used in the federal courts is based mainly on the Model Penal Code (MPC). See Brad A. Gordon, Criminal Knowledge and the New Clean Air Act: Potential Judicial Constructions, 25 Ariz. St. L.J. 427, 433-35 (1993). The MPC is a descriptive statute. See supra note 10 and infra notes 385401 and accompanying text. Thus, given the definitions used by the MPC, when a crime requires the mental state "knowing," a defendant's honest but unreasonable mistake provides a defense. Model Penal Code [subsection] 2.02(2)(b), 2.04(1) (1962). Hence, in this context, the limitation imposed by the Pacific Hide case makes sense.

However, if a common-law, normative approach is taken, the word "knowing" has a different meaning than under the MPC. Specifically, when used to connote general intent, the word "knowing" allows the defendant to be acquitted only if a mistake of fact is reasonable, that is, nonnegligent. See supra part III.D (discussing the normative jurisprudence of mens rea). (366) See United States v. Hayes Int'l Corp., 786 F.2d 1499, 1504 (11th Cir. 1986) (stating that the government's burden in proving a defendant's knowledge of permit status is not) unacceptable' because "[k]nowledge does not require certainty" and outlining circumstantial evidence that could be available to show the defendant's knowledge of permit status). (367) This conclusion would be logical for both the individual who assumed a permit existed and for the one who assumed the permit terms were favorable. (368) The same analysis applies in situations such as that in United States v. Weitzenhoff, 35 F.3d 1275, 1283 (9th Cir. 1993), cert. denied, 115 S. Ct. 939 (1995); see supra notes 350-51. If the defendant asks the regulatory agency to interpret the permit and receives no answer, or fails to ask at all, his belief that the conduct is permitted is arguably unreasonable. If a true emergency allowed no time to consult with the government agency, the reasonableness analysis would be different. This position has the added benefit of encouraging regulated industries to have a working relationship with the agencies that regulate them. (369) See Hayes Int'l Corp., 786 F.2d at 1504. (370) The common law is inconsistent in its treatment of circumstances for mens rea purposes. Sometimes a circumstance is treated as irrelevant to mens rea. See, e.g., United States v. Feola, 420 U.S. 671, 685 (1975) (finding no mental state requirement regarding assault victim's status as federal officer because the defendant "knows from the very outset that his planned course of conduct [of assault] is wrongful"); Regina v. Prince, 13 Cox's Crim. Law Cases 138, 138, 14041 (1875) (Bramwell, J., concurring) (In a prosecution for taking "an unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father," there was no mental state requirement regarding the girl's age because the conduct "was wrong in itself."). Sometimes awareness of the circumstances is required as part of the general intent. For example, in California, assault is a general intent crime that includes the circumstance of the victim's lack of consent to physical contact; a reasonable mistake about such consent is a defense. People v. Rivera, 203 Cal.Rptr. 842, 845-46 (Cal. Ct. App. 1984) (stating that assault requires general intent and that "an assault is not committed where a person has a reasonable and good faith belief that the touching was consensual"). Finally, sometimes awareness of the circumstance is considered an element of specific intent. E.g., Dressler, supra note 24, at 110 (citing "receiving stolen property with knowledge that it is stolen" as an example of an attendant circumstance that is part of the specific intent crime of larceny). I, at least, have been unable to find any clear guidelines for choosing among the approaches. In general, when commentators acknowledge the problem at all, they tend to treat awareness of attendant circumstances as always being in one category or the other. Id. at 109-10 (asserting that attendant circumstances are part of specific intent); LaFave & Scott, supra note 9, at 177-78 (implying specific intent); Williams, supra note 231, at 19, 21 (asserting that attendant circumstances are part of general intent). (371) See Dressler, Supra note 24, at 490 (defining "[c]ommon law larceny . . . as the 'trespassory taking and carrying away of the personal property of another with the intent to deprive the other of the property permanently'"' (quoting United States v. Waronek, 582 F.2d 1158, 1161 (7th Cir. 1978))). (372) Judge Kleinfeld pointed out this consequence in the context of the Clean Water Act, objecting to a holding that made permit status a strict liability element. He stated:

If we are fortunate, sewer plant workers around the circuit will continue to perform

their vitally important work despite our decision. If they knew they risk three years in

prison, some might decide that their pay, though sufficient inducement for processing

the public's wastes, is not enough to risk prison for doing their jobs. United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1994) (Kleinfeld, J., dissenting from order rejecting suggestion for rehearing en banc), cert. denied, 115 S. Ct. 939 (1995). (373) Judge Kleinfeld, discussing sewage treatment, noted: "Sewage workers perform essential work of great social value. Probably nothing has prevented more infant mortality, or freed more people from cholera, hepatitis, typhoid fever, and other disease, than the development in the last two centuries of municipal sewer systems." Id. at 1299 (dissenting from order rejecting suggestion for rehearing en banc) (citing W.H. Corfield, The Treatment and Utilisation of Sewage 17-27 (1871)). The same can be said of the other activities involved in public welfare offenses. Food and drugs must be packaged and sold. Chemicals must be transported because modem industry depends upon their use. Narcotics must be transferred for medical purposes. While some people now seem to be questioning whether we need to allow private possession of firearms, others still believe such possession is necessary. (374) Cf. Fletcher, supra note 10, at 486 (discussing risk as a harm unless the risk is justified). (375) Traditional "general intent" crimes also involve activities with social utility, although this is not normally acknowledged. For example, it is normal to regard the act of killing another human being as having no social value. However, there are situations in which society seems to value or at least tolerate killing, such as when the killing is conducted in time of war, after a death sentence has been legally imposed, or in self-defense. As another example, consider the activity of breaking and entering a home, which has social value when done in an emergency or to discover evidence of a crime. (376) See Susan F. Mandiberg, Protecting Society and Defendants Too: The Constitutional Dilemma of Mental Abnormality and Intoxication Defenses, 53 Fordham L. Rev. 221, 225 (1984-85). "Extrinsic" defenses exculpate despite the government having proved all elements in the definition of the crime and are contrasted with "negativing" defenses, which exculpate by preventing the government from proving one or more elements. Id. The term "extrinsic" is used instead of the more conventional "affirmative defense," which carries implications about who must bear the burden of persuasion. Id. Other commentators also have used the term "extrinsic," e.g., Low ET AL., supra note 238, at 511, as well as the terms "collateral defenses," id., and "true defenses," e.g., Dressler, supra note 24, at 176. (377) See Patterson v. New York, 432 U.S. 197, 206-07 (1977) (indicating that the government can ask the defendant to bear the burden of persuasion on an issue that is not an element of the crime). Killing has such limited social utility that both its danger and its moral dimensions are quite apparent. Permission to kill is rarely given, and in most cases it is safe to assume that it did not exist. Thus, it would be illogical and inefficient to require the government to disprove the existence of permission in every murder case. Making self-defense an extrinsic issue relieves the prosecution from dealing with permission until the defendant adequately raises the issue. (378) An activity that has a high degree of social utility, such as handling hazardous waste, is different. Because we need the job done on a wide scale, society tends to minimize its danger. Also, it is harder to see the moral dimensions inherent in handling hazardous waste. Permission to handle waste will therefore be relatively widely granted, and when someone engages in the activity, it is safe to assume that permission existed. Here, it is more logical and efficient to ask the prosecutor to prove a lack of permission. (379) As an extrinsic issue, "permission" arises in the context of a "justification" defense, which "is one that defines conduct 'otherwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability or even censure.'" Dressler, supra note 24, at 176 (quoting Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum. L. Rev. 914, 916 (1975)). The general rule at common law is that mistakes of fact in justification defenses must be reasonable, even though Dressler points to some conceptual problems with this common-law rule. Id. at 186-87. Although no single principle explains all justification defenses, of interest to this analysis is the fact that the earliest forms "had a strong public-benefit cast" and "[c]onduct was justified when it was performed in the interest, and usually in the name, of society." Id. at 180. However, Dressler points out that the "public-benefit concept" does not dominate contemporary law. Id. at 181. (380) Staples v. United States, 114 S. Ct. 1793, 1797 (1994). (381) 33 U.S.C. [section] 1319(c) (1988 & Supp. V 1993). (382) Id. [section] 1319(c)(2). First offenses are punishable by a fine of $5000 to $50,000 per day, three years imprisonment, or both. Id. Subsequent offenses are punishable by a fine of not more than $100,000 per day, six years imprisonment, or both. Id. (383) Id. [section] 1319(c)(1). First offenses are punishable by a fine of $2500 to $25,000 per day, one year imprisonment, or both. Id. Subsequent offenses are punishable by a fine of not more than $50,000 per day, two years imprisonment, or both. Id. (384) The terms "knowingly" and "negligently" were added to the Act in the 1987 amendments. Water Quality Act of 1987, Pub. L. No. 100-4, [section] 312,1987 U.S.C.C.A.N. (101 Stat.) 42-43 codified as amended at 33 U.S.C. [section] 1319(c) (1988 & Supp. V 1993)). Congress's purpose in using the terms is evident in the Conference Report on identical legislation enacted in 1986, but which lost to a presidential pocket veto. As to the mental-state provisions under consideration, the Conference Report said that "[t]he felony level penalties for knowing violations . . . reflect the commensurately serious nature of the violations [whereas] [e]xisting misdemeanor penalties are retained to address those negligent violations which merit lesser punishment." H.R. Conf. Rep. No. 1004, 99th Cong., 2d Sess. 134 (1986). (385) Model Penal Code [sections] 2.02(2) (Proposed Official Draft 1962). The MPC is not mentioned in the legislative history of the Clean Water Act's mental-state provisions. (386) Id. (designating and carefully defining the four mental state words: purpose, knowledge, recklessness, and negligence). (387) Id. [sections] 2.02(l); see also id. [sections] 1.13(9)-(10) (defining relevant terms). (388) The determination of which mental state goes with each act element is guided by an interpretive protocol based principally, if not completely, on statutory language, syntax, and punctuation. Id. [sections] 2.02(3)-(4). Section 2.02(4) is meant to resolve the precise problem with which the Court is grappling in statutes such as those under discussion, namely how far a mental state word extends. Model Penal Code [sections] 2.02(4) commentary at 129 (Tentative Draft No. 4, 1955). (389) The legislature can either use the words themselves or the MPC's "fall-back" position that the minimum capability requirement is assumed to be "recklessness." Model Penal Code [sections] 2.02(3) (Proposed Official Draft 1962). (390) The draft proceeds in the view that if a particular kind of culpability has been articulated at all by the legislature, as sufficient with respect to any element of the offense, the normal probability is that it was designed to apply to all material elements. Hence this construction is required, unless a "contrary purpose plainly appears." When a distinction is intended [between the mental state requirement of different act components] ... proper drafting ought to make it clear. Model Penal Code [sections] 2.02(4) commentary at 129 (Tentative Draft No. 4 1955) (emphasis added). (391) The MPC presumes that a crime will require at least recklessness, which is defined as awareness of a risk. Model Penal Code [sections] 2.02(2)(c), (3) (Proposed Official Draft 1962). (392) In fact, the drafters were explicit in their desire to get rid of normative concepts such as mens rea and scienter. They saw this as "rationalizing" the mental element. MODEL PENAL Code [sections] 2.02 commentary at 124 (Tentative Draft No. 4, 1955). (393) In the regulatory crime arena, the Court's flirtation with the MPC began with an adoption of its mental state definitions. See, e.g., Leary v. United States, 395 U.S. 6, 46 n.93 (1969) (utilizing the MPC's definition of knowingly); Turner v. United States, 396 U.S. 398, 416 n.29, reh'g denied, 297 U.S. 958 (1970) (utilizing the same). (394) Justice Brennan, in his concurrence in Freed, suggested utilizing the MPC's insight that mens rea can vary as to each act element of a crime. United States v. Freed, 401 U.S. 601, 613 (1971) (Brennan, J., concurring in judgment). The Court embraced Justice Brennan's suggestion in United States v. United States Gypsum, 438 U.S. 422, 445 (1978), and reiterated this new insight in United States v. Bailey, 444 U.S. 394, 405-06 (1980). The Court also used an MPC approach in Staples when it asserted that strict liability could exist "with respect to an element of a crime." Staples v. United States, 114 S. Ct. 1793, 1798 n.3 (1994). At least one reason for the Court's interest in the MPC approach may be a sense that the MPC is less ambiguous than the common law. See Bailey, 444 U.S. at 403 (expressing the opinion that the common law is ambiguous and implying that the MPC is not). Some commentators also prefer elements analysis and believe that it can be applied to federal criminal statutes. See, e.g., Saltzman, supra note 10, at 1575-79 (analyzing federal criminal law in terms of elements analysis); Hare, supra note 10, at 961-63 (noting that the MPC's definition of criminal negligence would "allow[] for a far more precise determination of criminal culpability" under the Clean Water Act); Webber, supra note 10, at 79 (stating that "element analysis will encourage clarity and precision" in determining culpability under environmental protection statutes). (395) The Court has attempted to match the act element with the appropriate mental state by making inferences tied to the type of crime at issue and Congress's punitive versus regulatory goals. E.g., United States Gypsum, 438 U.S. at 442, 444-46; Bailey, 444 U.S. at 407-08. This approach, however, may not accurately reflect Congress's value choices and runs the risk of seeming arbitrary. Compare United States Gypsum, 438 U.S. at 443-46 (holding that a punitive purpose existed in the criminal antitrust statute and, thus, knowledge was required) with United States v. Behrman, 258 U.S. 280, 287-89 (1922) (holding that the purpose behind the narcotics tax statute was regulatory as opposed to punitive and, thus, knowledge was not required). (396) See infra notes 398-99 and accompanying text. (397) Cf. Robinson & Grall, supra note 230, at 688-91 (discussing other aspects of the confusion that exists when "elements analysis" is applied to common-law-based criminal statutes). (398) Use of the MPC's protocol requires agreement and collaboration between the lawmaker (the legislature) and the law interpreter (the courts). This harmony does not exist when one entity is using the MPC protocol (the courts) and the other is not (the legislature). (399) Such a move would, of course, require Congress to redraft all criminal statutes along the lines of MPC [sections] 2.02. (400) See supra notes 382-85 and accompanying text. It may make no difference that two statutory provisions punish the same behavior and mental state quite differently. Choice between them could conceivably be left to the prosecutor's sound discretion. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (involving choice between two overlapping provisions applicable to sentencing a convicted felon in receipt of a firearm). Thus, "when an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants," id., and so long as there is no showing that Congress intended the government to use the more specific statute, United States v. Mackie, 681 F.2d 1121, 1122 (9th Cir. 1982). However, even if prosecutorial discretion is permissible in the current context, this is a messy and intellectually unsatisfying result. Such discretion normally is available when two entirely separate statutes cover the same behavior. See, e.g., id. at 1122 (involving choice between prosecuting under the MBTA, 16 U.S.C. [subsections] 703, 707(b) (1976), and the Bald and Golden Eagle Protection Act, 16 U.S.C. [sections] 668(a) (1976)); United States v. Abraham, 627 F.2d 205, 206 (9th Cir. 1980) (per curiam) (involving choice between prosecuting for an assault on a federal officer, 18 U.S.C. [sections] Ill (1994), and for an assault on a process server, 18 U.S.C. [sections] 1501 (1994)); United States v. Jones, 607 F.2d 269, 271 (9th Cir. 1979), cert. denied, 444 U.S. 1085 (1980) (involving choice between prosecuting under the Antiquities Act, 16 U.S.C. [sections] 433 (1988), or the theft and malicious mischief statutes, 18 U.S.C. [subsections] 641, 1361 (1948)). However, the situation discussed here is arguably distinguishable as involving two subsections of the same statute. (401) Liparota V. United States, 471 U.S. 419, 433-34 (1985) (holding that the government must prove the defendant acted in knowing violation of the law). (402) 33 U.S.C. [sections] 1319(c)(1) (1988 & Supp. V 1993). (403) Staples v. United States, 114 S. Ct. 1793, 1797 (1994). The Court also speaks of "the background rule" in the singular. In a slightly different fashion, the Court in Liparota, referred to the requirement of mens rea as a "background assumption of our criminal law." Liparota, 471 U.S. at 426.

Furthermore, this type of background rule has been referred to as a "substantive canon" of statutory construction because it draws on "the common law, federal statutes, or the United States Constitution." William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 595 (1992). Substantive canons are also distinguished from "`referential canons [which are] rules referring the Court to an outside or preexisting source to determine statutory meaning and [from] `linguistic' canons [which are] general conventions of language, grammar, and syntax." Id. (quoting Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401-06 (1950). (404) Liparota, 471 U.S. at 426 (stating that Congress's failure to indicate whether mens rea is required does not mean the Court should discard the use of the background rules to interpret a statute). (405) Staples, 114 S. Ct. at 1802 n.11. (406) See id. at 1798. The Court explained that the determination of "whether congressional silence concerning the mental element ... should be interpreted as dispensing with conventional men rea" depends partially on "the particular character of the items" under regulation. Id. (407) The Court increasingly uses substantive canons in place of real constitutional judicial review. See infra note 426 and accompanying text. However, it tends to do so more irk the area of structural constitutional issues than in the area of individual rights. See infra note 426 and accompanying text. (408) See Staples, 114 S. Ct. at 1806 (Stevens, J., dissenting) (in order "[t]o avoid a slight possibility of injustice ... the Court ha[d] substituted its views of sound policy for the judgment Congress made" in enacting a statute); see also Eskridge & Frickey, supra note 403, at 595-96 (noting that "unlike the linguistic canons or the referential canons, the substantive canons are not policy neutral" and "represent value choices by the Court"). Eskridge and Frickey also noted that use of clear statement rules is a sign of an activist Court since such rules are a "means by which the Court can read constitutional values into statutes." Eskridge & Frickey, supra note 403, at 629. While Congress can reassert its own values by overriding the Court's presumption, clear statement rules make this more difficult by requiring textual clarity rather than legislative history. Id. at 638. (409) See discussion supra part II.A. (410) This is the situation that will exist if the Court accepts the legislative history of the MBTA amendment as indicating the mental state requirement of the statute. See supra notes 35-55 and accompanying text. The Court could resolve the dilemma by expanding its notions of mens rea. For example, it could articulate a reason why the MBTA activities are not "innocent." If Staples, 114 S. Ct. 1793, is any guide, this means explaining why people should be aware that "taking" regulatory birds is regulated. As we have seen, the "taking" activities are neither uncommon nor dangerous to the health and safety of the community. See supra notes 288-95 and accompanying text. The Court will have to explain how "taking" migratory birds reflects in some other way a real normative consensus in contemporary American society. It is unlikely that the Court can do this persuasively. (411) See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952) (interpreting the statute in a way that avoided due process "notice" problems); United States v. International Minerals & Chem. Corp., 402 U.S. 558, 564-65 (1971) (suggesting that "substantial due process questions" might be raised if felony sanctions were applied to innocent behavior with no mens rea element in the statute); Liparota v. United States, 471 U.S. 419, 424 n.6 (1985) (stating that Congress must act within constitutional restraints in drafting statutes, although noting that no allegations of constitutional violations were made in that case); cf. Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) (discussing both due process and the fact that the Eighth Amendment might prohibit stigmatizing a person as a "felon" without proof of "culpability" in the normative sense); Saltzman, supra note 10, at 1575-79 (suggesting the same).

It is important to point out that if a constitutional problem exists, it will not necessarily be solved by the Court abandoning its normative approach in favor of a descriptive approach such as the MPC. Although statutes might require some type of awareness for every act element of the crime, that awareness would not necessarily amount to "awareness of wrongdoing" in a moral sense. The "notice" issue did not arise in traditional common-law crimes, probably because the widespread moral consensus in society gave notice of legal prohibitions. A shared consensus underlying public welfare offenses would arguably serve the same function. (412) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); see generally Martin H. Redish, The Federal Courts in The Political Order 75-85 (1991) (placing the role of judicial review in the context of modem political theory). It is important to remember that to date, the Court has not said that its mens rea interpretation is constitutionally mandated. See supra notes 111-222 and accompanying text. (413) Alternatively, of course, the Court could accept the mental state indicated in the legislative history and face the constitutional question noted above. This approach would raise no new authority issues. (414) The Liparota Court indicated that it would presume mens rea only "[a]bsent indication of contrary purpose in the language or legislative history of the statute." United States v. Laparota, 471 U.S. 419, 425 (1985) (emphasis added). (415) Staples v. United States, 114 S. Ct. 1793 (1994); see supra text accompanying notes 197-206. (416) Staples, 114 S. Ct. at 1802 n.11 (emphasis added). (417) Eskridge & Frickey, supra note 403, at 595 n.4. In the current context, the rule would require a clear statement to rebut the policy-based presumption that mens rea is an element of crimes. (418) Id. at 597 (commenting that use of "clear statement miles" is "consistent with [the current Court's] interest in textualism as its dominant interpretive methodology"). (419) Id. at 631 (focusing mainly on the use of "super-strong clear statement rules," which are not at issue in Staples). (420) The Court's opinions in this area do show some concern for fairness to law-abiding citizens. See, e.g., United States v. Liparota, 471 U.S. 419, 426-27 (1985); Staples, 114 S. Ct. at 1802. (421) For example, the rule of lenity avoids constitutional judicial review, Eskridge & Frickey, supra note 403, at 599, and is one of the canons of construction typically used to protect individual rights, id. at 612. Although Liparota indicated that its use of the common law was in aid of the rule of lenity, 471 U.S. at 427, the Staples Court specifically denied that it was relying on that rule. 114 S. Ct. at 1804 n.17.

Similarly, the Court can use the rule to avoid constitutional questions. Eskridge Frickey, supra note 403, at 600. Although the Staples dissent raised the issue, the majority did not address it. 114 S. Ct. at 1813 (Stevens, J. dissenting). (422) Eskridge & Frickey, supra note 403, at 597; see also id. at 615 (indicating that the current Court frequently uses "clear statement rules" when it is asserting structural constitutional principles). Eskridge and Frickey note that the Court normally uses such rules to enhance the power of the Executive vis a vis Congress. Id. Given that more typical usage, it is interesting to speculate how the Court might react if the agency charged with a regulatory statute's administration gave a definitive interpretation to the criminal provisions of the statute. That is, if EPA interpreted the statute without a mens rea requirement, would the Court defer to the agency usage in ways it would not defer to legislative history? For a discussion relevant to this issue, see id. at 618. (423) See id. at 629 (explaining that "clear statement rules" are a sign of an activist Court, since they are a "means by which the Court can read constitutional values into statues"); see also id. at 638 (noting that while Congress can reassert its own values by overriding the Court's presumption, "clear statement rules" make this more difficult by requiring textual clarity, not recourse to legislative history); see also, e.g., Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992) (discussing the same); Alan R. Romero, Note, Interpretive Directions in Statutes, 31 Harv. J. on Legis. 211 (1994) (discussing the use of legislative history and the proper sources of statutory interpretation). (424) Cf. BFP v. Resolution Trust Corp., 114 S. Ct. 1757, 1763-64, reh'g denied, 114 S. Ct. 2771 (1994) (using common law in the context of protection of states' rights in the federalist scheme); United States v. Texas, 113 S. Ct. 1631, 1634-35 (1993) (using similar reasoning). (425) See Smith v. United States, 113 S. Ct. 2050, 2060, reh'g denied, 114 S. Ct. 13 (1993) asserting that the background rules of the common law are equivalent to such interpretive aids as Congress's use of specific terms, the "structure and language of the statute," and the statute's purpose), cited in Staples, 114 S. Ct. at 1804 n.17; United States v. R.L.C., 503 U.S. 291, 312 (1992) (Thomas, J., concurring) (asserting that the Court will presume Congress's and citizens' familiarity with the U.S. Reports because "[l]ike Congress's statutes, the decisions of this Court are law ... [unlike] committee reports and floor statements, which are not law" , cited in Staples, 114 S. Ct. at 1804 n.17. 426 See Gary D. Rowe, Note, The Sound of Silence: United States v. Hudson & Goodwin, The Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L.J. 919, 935 (1992) (noting that the title case "formally incorporated [the] Jeffersonian understanding," repudiating the notion "that a federal common law serves as a necessary background to legislation in criminal matters"). In light of the "structural" interpretation of the Court's approach, it is interesting to note that the rule of lenity, see supra note 421, also has roots in the structural fight between the Judiciary and Congress regarding abolition of common-law crimes. Romero, supra note 423, at 215. (427) Redish, supra note 412, at 78. (428) See id. at 4 (asserting that a fundamental principle of American political theory is that "within constitutionally established boundaries, the representative branches of government may make policy decisions, free from judicial power to ignore or overrule them simply on grounds of social, political, or moral disagreement"), id. at 10 ("Short of a finding of constitutional invalidity ... it is democratically illegitimate for an unrepresentative judiciary to overrule, circumvent, or ignore policy choices made by the majoritarian branches."). (429) See, e.g., id. at 10-16, 24-25 (reviewing and critiquing "neo-Republican" notions of the common good and the desire for an increased role for the federal judiciary and citing additional sources). Redish notes, however, that "neo-Republican scholars do not appear to go so far as to vest in the judiciary a direct power to ignore or overrule an unambiguous statutory directive." Id. at 25.

(*) Professor of Law, Northwestern School of Law of Lewis & Clark College; J.D. 1975, University of California at Berkeley (Boalt Hall). The author is grateful to a number of colleagues for their thoughtful comments on earlier drafts and useful brainstorming sessions, including Susan Herman, Jim Huffman, Craig Johnston, Sanford Kadish, Kristine Olson, and Bill Williason.
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Date:Sep 22, 1995
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