Constitutional innocence

Harvard Law Review

Volumn 112, Issue 4, 1999, Pages 829-901

  Michaels, Alan C ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 0347594513     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342298     Document Type: Article

References (442)

1. See United States v. X-Citement Video, 513 U.S. 64, 66 (1994).
2. See United States v. Dotterweich, 320 U.S. 277, 278 (1943).
3. Cf. Schulte v. Douglas, 567 F. Supp. 522, 527-28 (D. Neb. 1981) (invalidating a statute that forbade post-viability abortions and lacked an intent requirement), aff'd sub nom. Women's Servs., P.C. v. Douglas, 710 F.2d 465 (8th Cir. 1983).
4. See State v. Dahnke, 57 N.W.2d 553, 554-55 (Iowa 1953).
5. See X-Citement Video, 513 U.S. at 66.
6. See Dotterweich, 320 U.S. at 284-85.
7. See Schulte, 567 F. Supp. at 527-28.
8. See Dahnke, 57 N.W.2d at 556.
9. The question is answered in the body of this Article. For those who wish to learn all the answers now, see note 370 below.
10. A material element is: an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct. MODEL PENAL CODE § 1.13(10) (1985).
11. This is a slightly narrower definition of strict liability than that of the Model Penal Code, which designates as absolute (i.e., strict) liability any crime that does not require the state to prove that the actor was at least negligent with regard to each material element. See MODEL PENAL CODE § 2.05 and commentary at 282 n.1 (1985). The literature is rife with definitions of strict liability, and there is some significant (and dizzying) variation among them. See, e.g., JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 11.01, at 125 (2d ed. 1995) (strict liability offenses are those that "do not contain a mens rea requirement regarding one or more elements");
12. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 9.3.2, at 716 (1978) (strict liability means "liability imposed for an act or omission . . . without considering at trial whether the defendant may exculpate himself by proving a mistake or accident bearing on the wrongfulness of his violation");
13. HYMAN GROSS, A THEORY OF CRIMINAL JUSTICE 343 (1979) ("Strict liability characterizes offenses that are usually, though incorrectly, said to entail liability without culpability.");
14. Norman Abrams, Criminal Liability of Corporate Officers and Directors for Strict Liability Offenses - A Comment on Dotterweich and Park, 28 UCLA L. REV. 463, 463 n.3 (1981) (strict liability is "liability without culpability");
15. James B. Brady, Strict Liability Offenses: A Justification, 8 CRIM. L. BULL. 217, 217-18 (1972) (strict liability is not susceptible to definition, but is best illustrated by example);
16. Douglas N. Husak, Varieties of Strict Liability, 8 CAN. J.L. & JURIS. 189, 190, 193 (1995) (strict liability encompasses at least seven different types of liability that share the central feature of allowing conviction even when the defendant is "substantially less at fault than the paradigm perpetrator of that offense");
17. Phillip E. Johnson, Strict Liability: The Prevalent View, in 4 ENCYCLOPEDIA OF CRIME & JUSTICE 1518, 1518 (Sanford H. Kadish ed., 1983) ("[S]trict liability [exists] if there is no requirement of knowledge, negligence, or any other type of culpability . . . .");
18. Sanford H. Kadish, Excusing Crime, 75 CAL. L. REV. 257, 267 (1987) ("Strict liability imposes guilt without regard to whether the defendant knew or could reasonably have known some relevant feature of the situation.");
19. Alan Saltzman, Strict Criminal Liability and the United States Constitution: Substantive Criminal Law Due Process, 24 WAYNE L. REV. 1571, 1575 (1978) (strict liability "means criminal liability for the commission of an offense without regard to whether the defendant was culpable with respect to one of the elements of the offense");
20. Richard G. Singer, The Resurgence of Mens Rea: III - The Rise and Fall of Strict Criminal Liability, 30 B.C. L. REV. 337, 364 n.114 (1989) (in strict liability, the mental state of any actor is irrelevant);
21. Richard A. Wasserstrom, Strict Liability in the Criminal Law, 12 STAN. L. REV. 731, 732-33 (1960) (defining strict liability by example and "tentatively describ[ing]" it as present in cases "in which the sole question put to the jury is whether the jury believes the defendant to have committed the act proscribed by the statute").
22. See DRESSLER, supra note 11, § 11.02, at 126-27.
23. See id. § 31.06, at 479. An example would be a bank robber who, pulling away from the bank in his car, accidentally hits and kills a motorist.
24. See, e.g., Johnson, supra note 11, at 1519.
25. See, e.g., FLETCHER, supra note 11, §§ 9.3.3-.4 at 729-36; JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 279-322 (1947);
26. WAYNE R. LAFAVE, JR. & AUSTIN SCOTT, JR., CRIMINAL LAW 248-49 (2d ed. 1986);
27. Abrams, supra note 11, at 476-77; Peter Brett, Strict Responsibility: Possible Solutions, 37 MOD. L. REV. 417 (1974);
28. Anthony A. Cuomo, Mens Rea and Status Criminality, 40 S. CAL. L. REV. 463, 525-26 (1967);
29. Gary V. Dubin, Mens Rea Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility, 18 STAN. L. REV. 322, 392-95 (1966);
30. C. Peter Erlinder, Mens Rea, Due Process, and the Supreme Court: Toward a Constitutional Doctrine of Substantive Criminal Law, 9 AM. J. CRIM. L. 163, 165-66 (1981);
31. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 422-25 (1958);
32. James J. Hippard, Sr., The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 HOUS. L. REV. 1039, 1039-40 (1973);
33. Johnson, supra note 11; Kadish, supra note 11, at 267-69; Clarence E. Laylin & Alonzo H. Tuttle, Due Process and Punishment, 20 MICH. L. REV. 614, 614-15 (1922);
34. Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 CORNELL L. REV. 401, 404-06 (1993);
35. Gerhard O.W. Mueller, On Common Law Mens Rea, 42 MINN. L. REV. 1043, 1101-04 (1958);
36. Herbert L. Packer, Mens Rea and the Supreme Court, 1962 SUP. CT. REV. 107, 107-10;
37. G.L. Peiris, Strict Liability in Commonwealth Criminal Law, 3 LEGAL STUD. 117, 140-44 (1983);
38. Rollin M. Perkins, Criminal Liability Without Fault: A Disquieting Trend, 68 IOWA L. REV. 1067, 1067-70 (1983);
39. Saltzman, supra note 11; Francis B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 55-56 (1933); Singer, supra note 11, at 389-408; Mark Tushnet, Constitutional Limitation of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B.U. L. REV. 775, 780-802 (1975);
40. Note, Constitutionality of Criminal Statutes Containing No Requirement of Mens Rea, 24 IND. L.J. 89, 90 (1948);
41. Claire D. Johnson, Note, Strict Liability Crimes, 33 NEB. L. REV. 462, 467 (1953). But see GROSS, supra note 11, at 346-48, 357-71 (providing a limited justification of strict liability);
42. Mark Kelman, Strict Liability: An Unorthodox View, in 4 ENCYCLOPEDIA OF CRIME & JUSTICE, supra note 11, at 1512, 1515-18 (offering rationales for the use of strict liability);
43. Ingeborg Paulus, Strict Liability: Its Place in Public Welfare Offenses, 20 CRIM. L.Q. 445, 461-64 (1977-78) (arguing that strict liability was necessary in nineteenth-century England to protect the nation's food supply);
44. Steven S. Nemerson, Note, Criminal Liability Without Fault: A Philosophical Perspective, 75 COLUM. L. REV. 1517, 1570-77 (1975) (justifying strict liability in certain circumstances).
45. Packer, supra note 13, at 109; see also LAFAVE & SCOTT, supra note 15, at 248.
46. MODEL PENAL CODE § 2.05 cmt. at 282 (1985).
47. See United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978); Morissette v. United States, 342 U.S. 246, 250, 259-63 (1952).
48. See infra Part IV (analyzing a wide array of strict liability cases decided since 1985); see also John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 216 (1991) (discussing the "explosion" in strict liability in federal crimes since the mid-1980s); Perkins, supra note 15, at 1068 (stating that recent cases and statutes show a trend toward strict liability); Saltzman, supra note 11, at 1572-73 (asserting that strict liability is "well entrenched in American criminal law").
49. See infra Part IV (documenting applications of strict liability in state and federal offenses since 1985); see also MODEL PENAL CODE § 2.05 cmt. at 290 (noting that most states continue to use strict liability for some crimes carrying the possibility of imprisonment); Levenson, supra note 15, at 406 n.29, 413 n.76, 453 n.266 (documenting continued and new uses of strict liability in federal offenses and compiling state and federal statutes).
50. See DRESSLER, supra note 11, § 11.04, at 129-30; LAFAVE & SCOTT, supra note 15, at 246; infra pp. 884-85.
51. See, e.g., United States Gypsum Co., 438 U.S. at 437-38; United States v. International Minerals & Chem. Corp., 402 U.S. 558, 564-65 (1971); Smith v. California, 361 U.S. 147, 150 (1959); Lambert v. California, 355 U.S. 225, 228 (1957).
52. Packer, supra note 15, at 107.
53. See United States v. Park, 421 U.S. 658, 669-70 (1975); Powell v. Texas, 392 U.S. 514, 535 (1968) (Marshall, J., plurality opinion); Morissette v. United States, 342 U.S. 246, 260 (1952); United States v. Dotterweich, 320 U.S. 277, 285 (1943).
54. Courts presently disagree about the constitutionality of strict liability in the following areas: felony murder, compare State v. West, 862 P.2d 192, 205 (Ariz. 1993) (upholding strict liability), with State v. Ortega, 817 P.2d 1196, 1204-05 (N.M. 1991) (striking down strict liability); production of child pornography, compare United States v. Reedy, 632 F. Supp. 1415, 1422-23 (W.D. Okla. 1986) (upholding strict liability for producers with respect to the age of the performer), and State v. Peterson, 535 N.W.2d 689, 691-92 (Minn. Ct. App. 1995) (upholding strict liability with respect to the age of the performer), with United States v. United States Dist. Court, 858 F.2d 534, 540-42 (9th Cir. 1988) (holding it unconstitutional to forbid a reasonable mistake of age defense), and Cinema I Video, Inc. v. Thornburg, 351 S.E.2d 305, 320-21 (N.C. Ct. App. 1986) (requiring knowledge that the material depicted persons appearing to be minors); driving under the influence, compare Village of Johnstown v. Hembree, No. CA-3538, 1990 WL 125189, at *1-*2 (Ohio Ct. App. Aug. 20, 1990) (upholding strict liability although the defendant's drink was "spiked" by his spouse, who then flagged a passing police car), with Carter v. State, 710 So. id 110, 112-13 (Fla. Dist. Ct. App. 1998) (holding that instruction on involuntary intoxication should have been given); sexual crimes against a minor, compare United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir. 1991) (no mistake of age defense), and Garnett v. State, 632 A.2d 797, 803-05 (Md. 1993) (same), with State v. Guest, 583 P.2d 836, 838-40 (Alaska 1978) (mistake of age defense is constitutionally mandated); selling protected migratory bird parts, compare United States v. Engler, 806 F.2d 425, 433-36 (3d Cir. 1986) (upholding strict liability), with United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985) (holding strict liability invalid); permitting criminal violations on one's premises, compare State v. Holmberg, 527 N.W.2d 100, 104-05 (Minn. Ct App. 1995) (upholding strict liability), with State v. Brandner, 551 N.W.2d 284, 287 (N.D. 1996) (avoiding "constitutional infirmity" by permitting the affirmative defense of a lack of knowledge); and providing false information, compare City of Cuyahoga Falls v. Azodi, No. 15643, 1992 WL 393151, at *2 (Ohio Ct. App. Dec. 30, 1992) (upholding strict liability in a statute prohibiting misidentification to a law enforcement officer investigating a traffic offense), with Howard Gault Co. v. Texas Rural Legal Aid, Inc., 615 F. Supp. 916, 952-53 (N.D. Tex. 1985) (finding strict liability with respect to falsity unconstitutional in a statute prohibiting picketing accompanied by false representations), rev'd in part on other grounds, 848 F.2d 544 (5th Cir. 1988).
55. See Dubin, supra note 15, at 381, 378-93 (arguing for constitutionalization of "factual notice doctrine" and other principles of mens rea); Hippard, supra note 15, at 1054 (mens rea is constitutionally required for all crimes); Laylin & Tuttle, supra note 15, at 645 (mens rea of at least negligence is required by due process); Mueller, supra note 15, at 1103-04 (common law mens rea should be constitutionally mandated for all offenses); Packer, supra note 15, at 152 (mens rea of negligence should be constitutional doctrine); Saltzman, supra note 11, at 1639-40 (proposing a constitutional rule that the defendant may avoid liability in every case by "showing that [he or she] exercised the utmost care"); Note, Constitutionality of Criminal Statutes Containing No Requirement of Mens Rea, supra note 15, at 102 (hoping for United States v. Balint, 258 U.S. 250 (1922), to be overruled).
56. See Erlinder, supra note 15, at 190 (arguing for a constitutional requirement of mens rea in all common law and most regulatory crimes); Kent Greenawalt, "Uncontrollable" Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 COLUM. L. REV. 927, 977 (1969) (arguing that strict liability is unconstitutional for any offense punishable by imprisonment); John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 YALE L.J. 1325, 1376 (1979) (proposing a constitutional rule that, at least in nonregulatory crimes, "penal liability should be limited to cases in which it is shown that the actor has departed from that which the prototypical law-abiding citizen would have done in the actor's situation"); Levenson, supra note 15, at 464-67 (a constitutionally grounded affirmative defense of good faith should always be available for crimes punishable by incarceration); Perkins, supra note 15, at 1080 (the Constitution should be read to limit strict liability to malum prohibitum offenses, and punishment for those offenses should be limited to fines);
57. Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 CORNELL L. REV. 446, 485-90 (1985) (contending that the Constitution forbids strict liability in cases of non-regulatory crimes and crimes with significant punishment, including felony murder);
58. William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 31-34 (1996) (arguing for a constitutional requirement of proof of recklessness with regard to illegality of conduct); Tushnet, supra note 15, at 799-802 (arguing for a constitutional rule of mens rea). Henry Hart also appeared to endorse a broad constitutional limitation on strict liability. See Hart, supra note 15, at 430-36 (arguing that the Constitution should be read to contain a requirement of knowledge of wrongdoing for criminal liability).
59. But see Herbert L. Packer, Aims of the Criminal Law Revisited: A Plea for a New Look at "Substantive Due Process", 44 S. CAL. L. REV. 490, 490 (1971) (reading Hart to stop short of suggesting constitutional limits).
60. This refusal may result in part from the heavy normative component usually found in arguments against strict liability. Opponents of strict liability often contend that strict liability is unjust, and conclude that it should therefore be unconstitutional. See, e.g., Hippard, supra note 15, at 1039-40. Not surprisingly, the Court has been leery of adopting broad principles barring legislative action on such grounds. Cf. Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96 MICH. L. REV. 1269, 1308-18 (1998) (discussing the Court's practice of "[r]ebuffing the [g]eneralization of [p]rinciples").
61. See Richard Singer & Douglas Husak, Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer, 3 BUFF. CRIM. L. REV. (forthcoming Fall 1999) (discussing commentators' views); cf. DRESSLER, supra note 11, § 11.04, at 130 (stating that the Court has held strict liability constitutional in public welfare offenses, has not rejected it elsewhere as a constitutional matter, and is very unlikely to reject it on proportionality grounds);
62. Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321, 346 n.g2 (1980) (arguing that Morissette and Lambert "never matured into a constitutional requirement of intent in criminal law").
63. See MODEL PENAL CODE § 230.1 commentary at 378 (1985); G. Keith Nedrow, Polygamy and the Right to Marry: New Life for an Old Lifestyle, 11 MEMPHIS ST. U. L. REV. 303, 319 (1981);
64. Ralph Sloven Wo, The De Facto Decriminalization of Bigamy, 17 J. FAM. L. 297 (1979). Thus a typical bigamy statute provides: If any person, being married, shall, during the life of the husband or wife, marry another person in this Commonwealth, or if the marriage with such other person take place out of the Commonwealth, shall hereafter cohabit with such other person in this Commonwealth, he or she shall be guilty of a Class 4 felony. VA. CODE ANN. § 18.2-362 (Michie 1996). The Model Penal Code provision, which limits liability to negligence, provides as follows: (1) Bigamy. A married person is guilty of bigamy, a misdemeanor, if he contracts or purports to contract another marriage, unless at the time of the subsequent marriage: (a) the actor believes that the prior spouse is dead; or (b) the actor and the prior spouse have been living apart for five consecutive years throughout which the prior spouse was not known by the actor to be alive; or (c) a Court has entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the actor does not know that judgment to be invalid; or (d) the actor reasonably believes that he is legally eligible to remarry. MODEL PENAL CODE § 230.1.
65. See MODEL PENAL CODE § 230.1 commentary at 380-81; Sayre, supra note is, at 74 (tracing the development of strict liability for bigamy to Commonwealth v. Mash, 48 Mass. (7 Met.) 472 (1844)).
66. See 10 C.J.S. Bigamy § 6 (1995); Saltzman, supra note 11, at 1576 n.18.
67. See 10 C.J.S. Bigamy § 7 (1995). Belief in the death of a spouse could be a defense if no word of the spouse was received for a specified number of years prior to the marriage. See id. English statutes established the period as seven years; in the United States the period varied from two to ten years. See MODEL PENAL CODE § 230.1 commentary at 381-82. In the case of belief in divorce, however, the general rule was that such belief was no defense no matter how much time passed. See 10 C.J.S. Bigamy § 7 (1995).
68. Bigamy is discussed in greater detail below at pp. 853-56.
69. Knowledge that one is getting married is usually required in a bigamy prosecution. See 10 C.J.S. Bigamy § 6 (1995).
70. See infra notes 140-141 and accompanying text.
71. 355 U.S. 225 (1957). Lambert was a convicted forger living in Los Angeles. See id. at 226. She was charged and convicted under a local ordinance requiring felons residing in Los Angeles for more than five days to register with the police, even though she had been unaware of the registration requirement. See id. at 226-27. The Supreme Court held that her conviction in these circumstances was unconstitutional. See id. at 228-29.
72. See LAFAVE & SCOTT, supra note 15, at 247 n.22.
73. See sources cited supra notes 26-27.
74. See Dubin, supra note 15, at 351-52 (by the mid-seventeenth century "the so-called 'guilty mind' had become an essential element in the definition of most offenses"); Erlinder, supra note 15, at 166 (citing dicta as late as 1837 stating that there are no crimes without mens rea); R.M. Jackson, Absolute Prohibition in Statutory Offences, 6 CAMBRIDGE L.J. 83, 83 (1938) (mens rea is required in all common law crimes); Levenson, supra note 15, at 436 (for 300 years, until the middle of the nineteenth century, common law required mens rea for crimes); Perkins, supra note 15, at 1077 ("In the beginning, [the mens rea concept] was carried into all prosecutions . . . .");
75. Rollin M. Perkins, Ignorance and Mistake in Criminal Law, 88 U. PA. L. REV. 35, 58-59 (1939) (civil wrong of public nuisance is the "only common law exception to the rule that criminal guilt requires mens rea . . . ."); Sayre, supra note 15, at 56-57 (before the mid-nineteenth century, "apart from exceptional isolated cases criminal liability depended upon proof of a criminal intent"); Singer, supra note 11, at 338 n.4 ("[B]y the beginning of the seventeenth century, [mens rea] was firmly established as a sine qua non for criminal conviction.");
76. Joseph Yahuda, Mens Rea in Statutory Offences, 118 NEW L.J. 330, 330 (1968) (at common law, no crime was "complete without some sort of intent concurring with the prohibited act"); Johnson, Note, supra note 15, at 462 (before the middle of the 19th century, it was generally stated that crimes required proof of mens rea) (citing 1 BISHOP, CRIMINAL LAW § 287 (9th ed. 1923));
77. William J. Sloan, Note, The Development of Crimes Requiring No Criminal Intent, 26 MARQ. L. REV. 92, 92 (1942) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *21).
78. Sayre traced the beginning to two British cases, Regina v. Woodrow, 15 M. & M. 404 (Exch. 1846), and Regina v. Stephens, 1 L.R.-Q.B. 702 (1866). See Sayre, supra note 15, at 58-61. Singer disputes Sayre's conclusions, see Singer, supra note 11, at 340-45, and argues that in the nineteenth century "English courts were wary of construing statutes to impose strict criminal liability, [but] courts in the United States were far less reticent," id. at 363. Singer traces the start of strict liability to cases, beginning about 1870, holding liquor sellers strictly liable for the age of minor purchasers. See id. at 365 & n.121.
79. See, e.g., Johnson, supra note 11, at 1519; Packer, supra note 15, at 141-42.
80. It is uncertain when courts first began using the felony murder rule. See Roth & Sundby, supra note 27, at 449. However, it is hundreds of years old. See id.
81. See DRESSLER, supra note 11, at 102-03. Many have recognized these two meanings. See Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 686 (1983) ("[M]ost agree that the view of mens rea generally has shifted from a vague notion of wickedness to a more definite requirement of a specific state of mind."); see also Brett, supra note 15, at 418-20;
82. Frances Bowes Sayre, The Present Signification of Mens Rea in the Criminal Law, in HARVARD LEGAL ESSAYS 399, 411-14 (1934); Singer, supra note 11, at 337 n.1.
83. DRESSLER, supra note 11, at 102.
84. 4 WILLIAM BLACKSTONE, COMMENTARIES *21.
85. Morissette v. United States, 342 U.S. 246, 251 (1932).
86. See DRESSLER, supra note 11, at 103.
87. As described by Paul Robinson and Jane Grall: The common law and older codes often defined an offense to require only a single mental state. Under this "offense analysis," one spoke of intentional offenses, reckless offenses, and negligent offenses. The general culpability provisions of the Model Penal Code, in contrast, recognize that a single offense definition may require a different culpable state of mind for each objective element of the offense. Robinson & Grall, supra note 44, at 683 (footnotes omitted).
88. See Frank J. Remington & Orrin L. Helstad, The Mental Element in Crime - A Legislative Problem, 1952 WIS. L. REV. 644, 655-58 (noting that some courts only require intent to prove the underlying felony in felony murder cases).
89. 13 Cox Crim. Cas. 138 (1875).
90. See id. at 140-45, 156-58.
91. See Brady, supra note 11, at 220-21 (Prince was a typical case of "objective liability"); Jackson, supra note 40, at 86-87 (Prince was a turning point toward strict liability); Levenson, supra note 15, at 422-23 (discussing Prince as a strict liability case); Singer, supra note 11, at 360 n.96 (the Prince court imposed strict liability); Wasserstrom, supra note 11, at 733 (same).
92. See GROSS, supra note 11, at 364-66, 373 (arguing that calling Prince a strict liability case is mistaken); Robinson & Grall, supra note 44, at 689 n.37 (explaining that, in Prince, the defendant had mens rea from the court's offense analysis perspective).
93. See Barnes v. State, 19 Conn. 397, 403-04 (1849).
94. See Commonwealth v. Farren, 91 Mass. (9 Allen) 489, 490-91 (1864).
95. Sayre, supra note 15, at 55.
96. Id.
97. Id. at 56. Richard Singer argues that the label "public welfare offense" is a mistake and that the early cases were actually "morals" offenses. See Singer, supra note 11, at 339, 363-73.
98. See Packer, supra note 15, at 138 (stating that element analysis reveals that the "allegedly pervasive principle of mens rea is . . . riddled with exceptions").
99. Sayre, supra note 15, at 55.
100. See GROSS, supra note 11, at 343; Johnson, supra note 11, at 1519; Levenson, supra note 15, at 418 n.90 (stating that crimes applying strict liability to all elements are rare or nonexistent); Peter W. Low, The Model Penal Code, The Common Law, and Mistakes of Fact: Recklessness, Negligence, or Strict Liability?, 19 RUTGERS L.J. 539, 560-64 (1988);
101. Packer, supra note 15, at 140-41; Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. REV. 463, 554 (1992); Wasserstrom, supra note 11, at 742-43; cf. Robinson & Grall, supra note 44, at 719-23 (arguing that the "conduct" element of an offense should be understood "narrowly, . . . to mean the actual physical movement of the actor," and that knowing conduct of this sort is always required). But see LAFAVE & SCOTT, supra note 15, at 243 (citing State v. Dobry, 250 N.W. 702 (Iowa 1933), involving a Blue Sky statute, as imposing strict liability on all elements).
102. Packer, supra note 15, at 107.
103. Packer considered the situation he thus described a "failure" and a mark of "inadequate performance." Id.
104. See, e.g., Peter J. Henning, Foreword: Statutory Interpretation and the Federalization of Criminal Law, 86 J. CRIM. L. & CRIMINOLOGY 1167, 1176 (1996);
105. Kenneth W. Simons, When Is Strict Criminal Liability Just?, 87 J. CRIM. L. & CRIMINOLOGY 1075, 1078 n.6 (1997);
106. Singer, supra note 11, at 403; Scott E. Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 HASTINGS L.J. 457, 477-78 (1989).
107. See supra pp. 838-39.
108. See, e.g., United States v. Park, 421 U.S. 658, 670-76 (1975); United States v. Dotterweich, 320 U.S. 277, 280-81 (1943); United States v. Balint, 258 U.S. 250, 251-54 (1922); see also United States v. Morissette, 342 U.S. 246, 260 (1952) (dicta).
109. The cases examined in text are Balint, Dotterweich, Morissette, United States v. Freed, 401 U.S. 601 (1971), and Williams v. North Carolina, 325 U.S. 226 (1945). This section does not examine other strict liability cases in text because in these other cases the Court unambiguously rejected strict liability on grounds of statutory interpretation; these cases therefore offer little guidance on constitutional issues. See, e.g., Staples v. United States, 511 U.S. 600, 619-20 (1994); Liparota v. United States, 471 U.S. 419, 423-33 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 436-38 (1978). Park is discussed below at note 99, rather than in text, as most commentators conclude that it too interpreted the statute at issue as not imposing strict liability. Other cases, such as United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971), which applied strict liability to the question of ignorance of the law, and United States v. Yermian, 468 U.S. 63 (1984), which applied it to the jurisdictional element of the offense, are not examined in the text of this section because they do not involve application of strict liability to material elements of the offense. United States V. Behrman, 258 U.S. 280 (1922), and Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57 (1910), are included in the Balint discussion. This Article examines cases in accordance with the now-conventional perspective of element analysis, see supra p. 389, which is essential to the principle of constitutional innocence. For a discussion of the differences between this approach and offense analysis, in the context of deciding when strict liability is just (as opposed to when it is legal), see Simons, cited above in note 65, at 1085-93.
110. 355 U.S. 225 (1957).
111. Shevlin-Carpenter, decided twelve years before Balint, upheld strict liability in the imposition of a civil fine and, in dicta, stated that the statute's criminal provisions were also constitutional. See Shevlin-Carpenter, 218 U.S. at 69-70. Because the case covers civil penalties, it is mentioned only briefly here. Nonetheless, the result is entirely consistent with the principle of constitutional innocence. Shevlin-Carpenter was sued by the state for violating a state law prohibiting cutting timber on state land without a valid and existing permit. See id. at 62-63 & n.1. Shevlin-Carpenter knew that it was cutting the timber and knew that it was on state land, but had a reasonable - albeit erroneous - belief that its permit had not expired. See id. at 63-64. The Court upheld the application of strict liability to the element of "without a permit," see id. at 69-70, but of course, the state could have outlawed the other elements of the offense that were concededly intentionally committed (cutting timber on state land) without relying on the strict liability element.
112. See, e.g., Hippard, supra note 15, at 1047 (in Balint, the "Court . . . conceded to legislatures the power to make criminals of innocent citizens"); Packer, supra note 15, at 113 (Balint is the "key decision in the sequence"); Saltzman, supra note 11, at 1592 (Balint is "the basic authority" for strict liability's constitutionality); Wasserstrom, supra note 11, at 732 (Balint is "undoubtably" the "landmark case").
113. The law provided in relevant part: [E]very person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on . . . . . . . . Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection . . . . Narcotic Act, Pub. L. No. 63-223, 38 Stat. 785 (1914).
114. See Balint, 258 U.S. at 253-54.
115. Narcotic Act § 2.
116. See Balint, 285 U.S. at 251.
117. Id.
118. Id. (emphasis added).
119. See id. at 252-53.
120. Neither the phrase itself nor the subsequent opinion specified whether the knowledge at issue was (i) that Balint was selling drugs at all, (ii) what drugs Balint was selling, or (iii) that the drugs in question were "inhibited" by the statute. Nor does the demurrer shed light on this issue. The demurrer in its entirety stated only: The above-named defendants hereby demur to the indictment 28-316 filed against them in this court on the 23rd day of May, 1921, charging them with the crime of unlawfully selling cocaine and heroin, on the ground that it appears upon the face thereof: First: That the facts stated do not constitute a crime. Wherefore the defendants ask judgment of the court that they be dismissed and discharged from the said premises specified in the said indictment Transcript of Record at 3, Balint (No. 316). The only "facts" in the Supreme Court record are the allegations of the indictment. Those facts are only skeletal. Clearly, however, Balint did not simply sell a car in which the previous owner had hidden drugs or engage in some similar "accidental" drug sale. To the contrary, the indictment charged that on two consecutive days Balint did "sell, barter, and give" to one Peter Reager 10 grains of heroin hydrochloride and 10 grains of cocaine hydrochloride. Id. at 2-3. United States v. Behrman, 258 U.S. 280 (1922), decided the same day as Balint and construing the same statute, did include some facts that suggest Behrman was an ignorance of the law case. The statute contained an exception to the requirement of an IRS form for doctors writing prescriptions to patients in the course of their professional practice. See id. at 285. Behrman wrote narcotics prescriptions for a narcotics addict. See id. at 286-87. Because the prescriptions were not "for the purpose of treating any disease or condition other than [defendant's] addiction," id. at 286, the Court held that they were not prescriptions in the course of professional practice within the meaning of the statute, see id. at 287-89. The Court also held that the indictment did not need to allege that Behrman knew these were not prescriptions within the meaning of the statute. See id. at 288.
121. Staples v. United States, 511 U.S. 600, 606 (1994); see also Erlinder, supra note 15, at 186 (asserting that the Court's strict liability cases required "proof that [the] defendants purposely or knowingly sold or possessed certain items").
122. In the context of whether strict liability is just from a retributive perspective (as opposed to the question of its constitutionality explored here), Richard Wasserstrom was perhaps the first forcefully to make this point. See Wasserstrom, supra note 11, at 742-43 (arguing that engaging in broader activity discloses some level of "fault"). Mark Kelman has made the same core observation in arguing that the contention that strict liability offenders are blameless "depends on the use of a rationally indefensible narrow time frame in focusing on the defendant's conduct." Kelman, supra note 15, at 1516; see also GROSS, supra note 11, at 346-47 (arguing that strict liability does not violate the principle that "only persons who are to blame for what they do are justly punished for it"); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 605-11 (1981) (claiming that critics of strict liability crimes "invariably use narrow time-framing"); Low, supra note 62, at 556, 560-64 (arguing that strict liability as to one element of a crime is reasonable because of "the level of notice that is conveyed by the remaining elements of the offense").
123. See, e.g., Dubin, supra note 15, at 381; Hart, supra note 15, at 432-33 & n.72; Hippard, supra note 15, at 1046-47; Levenson, supra note 15, at 456; Packer, supra note 15, at 113-16; Saltzman, supra note 11, at 1615; Sayre, supra note 15, at 80-81.
124. The Court's opinion, though no doubt subject to a number of possible interpretations, supports this view. The key passage of the opinion provided: [I]n the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." . . . Again, where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Balint, 258 U.S. at 252-53 (citing Hobbs v. Winchester Corporation, 2 K.B. 471, 483 (1910)). There is an apparent tension in the decision. The Court said on the one hand that "the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells," hinting that negligence may be required for punishment. Id. at 253. Yet only two paragraphs later, the Court noted with approval that 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." Id. at 354. This language seemingly states that "innocence" may be punished. The tension between the two passages dissolves, however, when one considers that the latter passage is immediately preceded by a sentence that limits its application to someone who is selling drugs in the first place. The fuller quotation is as follows: [The statute's] 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. 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 . . . . Id. (emphasis added). The "innocent seller" is not just anyone. The innocent seller is the "person dealing in drugs," who uses the same level of care as a typical drug seller (hence the "innocence"). He may constitutionally be punished because although he was not negligent, he used imperfect care as Congress defined it. As the Court put the matter, he sold drugs at all "at his peril." Id. (emphasis added). This reading of the Court's opinion is supported by the parallel between the language of the Court's opinion and the language of an English decision, Hobbs v. Winchester Corp., 2 K.B. 471 (1910). The brief for the United States excerpted substantial portions of Hobbs, which explicitly relied on the fact that the defendant knew he was selling regulated material. Consider this portion of a long quotation from Hobbs that appeared in the Government's brief: I should say that the natural inference from the statute and its object is that the peril to the butcher from innocently selling unsound meat is deemed by the legislature to be much less than the peril to the public which would follow from the necessity in each case of proving a mens rea. . . . [I]f a man chooses for profit to engage in a business which involves the offering for sale of that which may be deadly or injurious to health he must take that risk, and that it is not a sufficient defense for anyone who chooses to embark on such a business to say, "I could not have discovered the disease unless I had an analyst on the premises." He has chosen to engage in that which on the face of it may be a dangerous business and he must do so at his own risk. Brief for the United States at 7-8, Balint (No. 480) (quoting Hobbs, 2 K.B. at 484-85). For a good critical discussion of Hobbs, see Singer, cited above in note 11, at 351-52.
125. As explained throughout this Article, this "greater includes the lesser" argument in the context of strict liability does not require a departure from the Court's precedents; to the contrary, it is strongly suggested by them. Nor would it require development of a body of substantive constitutional criminal law principles. For excellent discussions in support of the "greater power includes the lesser" argument in the context of affirmative defenses, see Ronald Jay Allen, Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law - An Examination of the Limits of Legitimate Intervention, 55 TEX. L. REV. 269, 284-91 (1977) [hereinafter Allen, Limits of Legitimate Intervention], and Jeffries & Stephan, cited above in note 27, at 1345-53. Professors Jeffries and Stephan argued that affirmative defenses should be constitutionally permissible only when there is "proof beyond a reasonable doubt of a constitutionally adequate basis for imposing the punishment authorized." Id. at 1365. In a subsequent article, Professor Allen argued that a "greater power includes the lesser" approach should be employed to measure the constitutionality of the use of any evidentiary device that shifts the burden of persuasion, including affirmative defenses, shifting of the burden of production, judicial comment on the evidence, presumptions, and permissive inferences. See Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321, 326, 340-41 (1980) [hereinafter Allen, Evidentiary Devices]. Professor Allen argued that these devices could constitutionally be employed if the fact they affect is not one that the state is constitutionally mandated to demonstrate as an element of criminality. See id. at 341. Otherwise, under Professor Allen's approach, such devices could only be employed if they move the jury "toward a more rational, accurate result." Id. These commentators recognized that their theories would not place effective limits on the use of affirmative defenses without the development of a body of substantive constitutional criminal law with real bite, including constitutional requirements of mens rea, actus reus, and proportionality. See id. at 342-43; Jeffries & Stephan, supra note 27, at 1365-66, 1370-79. They also recognized that the Court had thus far resisted developing such requirements. See Allen, Evidentiary Devices, supra, at 346; Jeffries & Stephan, supra note 27, at 1366-67.
126. The approach was criticized at the time on the ground that the Court could not or would not give significant content to these substantive limitations, see Charles R. Nesson, Rationality, Presumptions, and Judicial Comment: A Response to Professor Allen, 94 HARV. L. REV. 1574, 1578-79 (1981), and such development certainly has not taken place in the ensuing two decades, see, e.g., Ronald J. Allen, Foreword: Montana v. Egelhoff - Reflections on the Limits of Legislative Imagination and Judicial Authority, 87 J. CRIM. L. & CRIMINOLOGY 633, 655-56 (1997) [hereinafter Allen, Reflections]. Probably the strongest response to the "greater power includes the lesser" argument in the context of strict liability would be to claim that it allows the legislature to have its cake (by relying on its ability to criminalize the broader conduct) and eat it too (by not actually criminalizing all the broader conduct) in a way that somehow runs afoul of the Constitution.
127. Cf. Barbara D. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 YALE L.J. 1299, 1320-23 (1977) (arguing that legislative compromise represented by affirmative defenses is constitutionally inappropriate); Sundby, supra note 65, at 491 (arguing that to extend the presumption of innocence to all facts that could justify punishment is to "ignore that society has chosen not to condemn such behavior as criminal even though it legitimately could do so"). There are at least three responses to this objection. First, as set out in this section, the Supreme Court case law strongly supports the "greater power includes the lesser" argument in the strict liability arena. Second, no obvious constitutional doctrine presents itself to support this objection. To the contrary, the Supreme Court has repeatedly insisted that the legislature has very broad powers to decide how to formulate the criminal law. See infra p. 882. Third, legislatures often decide to punish narrower conduct based on their ability to punish broader conduct in ways that are patently constitutional. For example, completed crimes are widely punished more severely than attempted ones, and reckless actions that are punished if harm results are often not punished at all if harm does not result. Yet whether or not the crime is completed or the harm results is often a matter of luck, which many believe has no relevance to the actor's culpability. See infra note 337 and accompanying text (discussing moral luck). If occurrence of the harm is just luck, then in punishing only (or to a greater degree) when the harm occurs, the legislature is relying purely on the "culpability" of the broader conduct, conduct that it chooses not to punish (or to punish to a lesser degree) when it occurs without the "harm." A separate argument against "greater includes the lesser" analysis raised in the contexts of presumptions and affirmative defenses was that if the legislature includes an element in an offense definition, but then provides inadequate process regarding that issue by using a presumption or making its absence an affirmative defense, "a violation of due process" has occurred, because the crime created has not truly "undergone the political checks guaranteed by representative government."
128. Harold A. Ashford & D. Michael Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 YALE L.J. 165, 178 (1969); see id. at 177-78, 189-90.
129. But see Allen, Limits of Legitimate Intervention, supra, at 288-90 (rejecting this argument as relying on unwarranted assumptions about both legislative motives and popular comprehension of the law). Whatever the merits of such an argument in the realms of presumptions and affirmative defenses, it has no force in the realm of strict liability. By imposing strict liability, the legislature has expressly decided that, beyond the imperfect care demonstrated by intentionally engaging in the other conduct covered by the statute, mental culpability with regard to the strict liability element is not germane.
130. 320 U.S. 277 (1943).
131. See id. at 278.
132. See id. The charges were brought under sections 301(a) and 303(a) of the Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 331(a), 333(a) (1994), which made guilty of a misdemeanor "[a]ny person" who violated a prohibition on "[t]he introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded." Dotterweich, 320 U.S. at 278. One of the counts was based on Buffalo Pharmacal labeling a bottle as containing "Hinkle" pills, even though the pills contained strychnine sulphate, which had been removed from the official definition of "Hinkle" pills. See United States v. Buffalo Pharmacal Co., 131 F.2d 500, 501 (2d Cir. 1942). The other two counts were based on the shipment of a bottle of digitalis tablets that were less than half as potent as the label claimed. See id. at 502.
133. See Buffalo Pharmacal, 131 F.2d at 501.
134. See Dotterweich, 320 U.S. at 281-82.
135. See id. at 286-88 (Murphy, J., dissenting) (framing the question as whether there was a clear legislative mandate, not whether Congress could impose liability).
136. See Dotterweich, 320 U.S. at 284-85.
137. Id. at 284.
138. Id.
139. Id. at 285.
140. See supra pp. 844-46.
141. Regulation of interstate drug shipments is within Congress's power under the Commerce Clause. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 191 (1997) ("The Court [has] held that Congress can set the terms for . . . virtually anything that can potentially travel across state lines."). When Congress chooses to ban particular drugs, its decision to do so is subject only to rational basis review. As one commentator puts it, "Any conceivable purpose is sufficient. The law only need seem a reasonable way of attaining the end; it [need not] be narrowly tailored to achieving [that] goal. The reality is that virtually any law can meet this very deferential requirement." Id. at 491. Congress would seem to have the power to prohibit the sale of broad categories of drugs on this basis if it so chose -even on the basis of avoiding the risk of mislabeling or adulteration.
142. The language of the Dotterweich opinion supports the notion that the constitutionality of strict liability with regard to the drugs being mislabeled was premised on the element of knowingly shipping drugs. As the Court put the matter: Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission - assuming the evidence warrants it - to the jury under appropriate guidance. . . . Congress has preferred to place [the hardship] upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce . . . . Dotterweich, 320 U.S. at 284-85 (emphasis added).
143. The standard of "imperfect care," implied as the requisite minimum mens rea by the principle of constitutional innocence, also justifies, from a constitutional standpoint, the imposition of vicarious liability on Dotterweich. Dotterweich used imperfect care because he, as president of the corporation, presumably could have directed the corporation to demand a guarantee from the manufacturer that the drugs were neither adulterated nor misbranded yet failed to do so. Under the statute, such a guarantee would have provided immunity from prosecution. See Federal Food, Drug, and Cosmetic Act § 303(c)(2), 21 U.S.C. § 333(c)(2) (1994). In effect, Congress mandated a heightened duty of care -more than mere nonnegligence - for those in a position to obtain a guarantee, and provided criminal penalties if one knowingly failed to meet that duty and (knowingly or not) the harm resulted. It is as though Congress passed a law barring the authorization of the shipping of drugs without having first received a guarantee, but limited liability to cases in which mislabeled drugs were shipped. Because Congress could clearly enact a statute without the last proviso, it seems equally clear that it could enact the narrower statute including it. That the imperfect care standard for constitutional innocence works with both strict liability and vicarious liability points to the possibility that imperfect care may not be a mental state at all. Although full discussion of this issue is beyond the scope of this Article, imperfect care will usually involve some mental state of indifference, awareness, or both. See generally Simons, supra note 62, at 464-65 (setting up a two-track model of mental states, involving "states of belief" and "states of desire"). When the actor is aware of the risk of the strict liability element occurring, the actor's imperfect care will demonstrate a mental state of indifference. The actor's indifference to the risk of the "harm," however slight, is sufficient to allow him to engage in the conduct, notwithstanding the risk of the harm that the actor recognizes. Even if the actor is not aware of the risk, we can say that the actor has the same level of indifference if he would have engaged in the conduct had he been aware of the risk. Cf. Alan C. Michaels, Acceptance: The Missing Mental State, 71 S. CAL. L. REV. 953, 960-63 (1998) (using a similar hypothetical question to measure the indifference equivalent in culpability to knowledge). If the actor would not have engaged in the conduct had the actor been aware of the risk of the harm, the actor through his imperfect care does not demonstrate a mental state of indifference, but does demonstrate, by acting in spite of this unawareness, either an imperfect "belief state" or imperfect conduct. See Simons, supra note 62, at 547-51 (analyzing the difference between negligent beliefs and negligent conduct). In any event, in most cases of strict liability, the actor probably does have some conscious awareness of the risk: Dotterweich obviously knew that the drugs could have been mislabeled, for example.
144. The Court faced the same statute more recently in United States v. Park, 421 U.S. 658 (1975). As in Dotterweich, a corporate president was charged with violating the Federal Food, Drug, and Cosmetic Act. Park was charged under 21 U.S.C. § 331(k) (1994), which prohibits in relevant part "the doing of any . . . act with respect to . . . a food, drug, device, or cosmetic, if such act is done while such article is held for sale . . . after shipment in interstate commerce and results in such article being adulterated or misbranded." Id. Rather than mislabeling drugs, Park's company "adulterated" food by storing it in buildings where rodents contaminated it. See Park, 421 U.S. at 660. Park was convicted and sentenced to pay a $50 fine on each of five misdemeanor counts. See id. at 660, 666. His conviction could be subjected to the same analysis as Dotterweich's. He intentionally engaged in conduct covered by the statute: holding food for sale after its shipment in interstate commerce. (Park did not hold the food for sale himself; it was stored in corporate warehouses. See id. at 660. Like Dotterweich, he was vicariously liable, and the Court did not separate potential strict liability from potential vicarious liability.) The only potential issue of strict liability related to the element of causing the food to be adulterated. Applying a constitutional innocence analysis, if the legislature could prohibit holding food for sale after shipment in interstate commerce, it could apply strict liability to the adulteration element. For present purposes, there are two notable and perhaps related differences between Dotterweich and Park. First, Dotterweich involved drugs, whereas Park involved food. Second, the Court in Park did not indicate that the way for Park to have been more careful and to have avoided liability was to have stayed out of the food business, and the Court steered clear of endorsing strict liability. Instead, the Court used ambiguous language. It approved of a charge instructing the jury to find the
145. 342 U.S. 246 (1952).
146. See id. at 247; Morissette v. United States, 187 F.2d 427, 428-29 (6th Cir. 1951).
147. Morissette, 342 U.S. at 248-49.
148. See id. at 249.
149. Conversion is an unauthorized act of dominion over the personal property of another that deprives the rightful owner of her property rights. See BLACK'S LAW DICTIONARY 300 (5th ed. 1979).
150. In the realm of torts, conversion could be committed unwittingly because the defendant's "well-meaning may not be allowed to deprive another of his own." Morissette, 342 U.S. at 270.
151. See id. at 263.
152. See Packer, supra note 15, at 121.
153. Morissette, 342 U.S. at 253.
154. Id. at 254.
155. See Hippard, supra note 15, at 1048; Saltzman, supra note 11, at 1601.
156. See Morissette, 342 U.S. at 259-60.
157. Id. at 262 (emphasis added).
158. See id. at 262 n.21 (citing People v. Ruthenberg, 201 N.W. 358 (Mich. 1924), State v. Smith, 190 P. 107 (Mont. 1920), State v. Kahn, 182 P. 107 (Mont. 1919), and State v. Hennessy, 195 P. 211 (Wash. 1921) (en banc)).
159. See Ruthenberg, 201 N.W. at 360-61; Hennessy, 195 P. at 216-17.
160. See Smith, 190 P. at 109-12; Kahn, 182 P. at 109. Kahn was actually somewhat ambiguous as to the intent requirement. See id. The Smith court, interpreting Kahn, acknowledged the ambiguity but held decisively that no intent was required. See Smith, 190 P. at 110-11.
161. As to criminal syndicalism, in the Term following Morissette the Court made explicit the tacit disapproval of strict liability indicated in its Morissette opinion. See Wieman v. Updegraff, 344 U.S. 183, 190 (1952); infra pp. 873-74.
162. See Morissette, 342 U.S. at 262.
163. 401 U.S. 601 (1971).
164. See id. at 607.
165. 26 U.S.C. §§ 5841-5872 (1994).
166. 26 U.S.C. § 5861(d).
167. Freed, 401 U.S. at 612 (Brennan, J., concurring in the judgment).
168. See id.; Freed, 401 U.S. at 607.
169. See Freed, 401 U.S. at 607-10; id. at 612-16 (Brennan, J., concurring in the judgment). Richard Singer has argued that, because the only question before the Court was the sufficiency of the indictment, its conclusions about the constitutionality of strict liability were no more than dicta with regard to what would have to be proven at trial. See Singer, supra note 11, at 401. Singer's contention is discussed below at note 311.
170. See Freed, 401 U.S. at 609-10.
171. See, e.g., sources cited supra note 71.
172. But see Dubin, supra note 15, at 381-82; Saltzman, supra note 11, at 1596-97.
173. 325 U.S. 226 (1945).
174. Id. at 235.
175. See id. at 227 & n.1. While in Nevada, the defendants "stayed in an auto-court for transients," id. at 236, for six weeks, see Brief of the State of North Carolina at 3, Williams (No. 84), the minimum time required by Nevada to obtain the divorces. They then immediately remarried. See Williams, 325 U.S. at 236.
176. See State v. Williams, 29 S.E.2d 744, 746-47 (N.C. 1944). The husband, O.B. Williams, was sentenced to one to three years imprisonment. The wife, Lillie Shaver Hendrix, was sentenced to eight to twenty-four months imprisonment. See id.
177. U.S. CONST. art. IV, § 1.
178. See Williams, 325 U.S. at 229-30, 239. The Court held that the Full Faith and Credit Clause presented no barrier largely because no party opposed to the divorce had appeared in the Nevada proceedings, see id. at 230, and the record supported a finding that Nevada had lacked jurisdiction, see id. at 234.
179. Section 14-183 of the General Statutes of North Carolina provided, in relevant part: If any person, being married, shall contract a marriage with any other person outside of this state, which marriage would be punishable as bigamous if contracted within this state, and shall thereafter cohabit with such person in this state, he shall be guilty of a felony and shall be punished as in cases of bigamy. Williams, 325 U.S. at 227 & n.1 (quoting N.C. GEN. STAT. § 14-183 (1943)) (internal quotation marks omitted).
180. State v. Williams, 29 S.E.2d 744 (N.C. 1944).
181. See Petition for Writ of Certiorari to the Supreme Court of North Carolina and Brief in Support Thereof, Williams (No. 291).
182. See Brief for Petitioners, Williams (No. 84).
183. Williams, 325 U.S. at 238.
184. See id.
185. See Turner v. Safley, 482 U.S. 78, 99-100 (1987) (holding unconstitutional a prison regulation prohibiting an inmate from marrying without the permission of the superintendent and the exigency of a pregnancy or the birth of an "illegitimate" child); Zablocki v. Redhail, 434 U.S. 374, 375-77 (1978) (holding unconstitutional a statute prohibiting residents who are obligated to pay child support from marrying without first obtaining a court order granting permission); Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding unconstitutional a Virginia statute prohibiting interracial marriage); EDWIN CHEMERINSKY, CONSTITUTIONAL LAW 644-48 (1997);
186. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15-20, at 1415 (2d ed. 1988); Nedrow, supra note 30, at 321-29;
187. Developments in the Law - The Constitution and the Family, 93 HARV. L. REV. 1156, 1248-57 (1980).
188. See generally Robert F. Drinan, The Loving Decision and the Freedom to Marry, 29 OHIO ST. L.J. 358 (1968). Of course, saying that there is a fundamental right to marriage does not mean that the legislature could not restrict the right, but such a restriction would have to survive strict scrutiny. See CHEMERINSKY, supra, at 644; TRIBE, supra, §§ 16-7 to 16-13, at 1454-65. A law will survive strict scrutiny only if it is narrowly tailored to achieve a compelling governmental purpose. See, e.g., CHEMERINSKY, supra, at 416. Prohibiting all marriages in order to prevent polygamous ones plainly would not survive such a test. A bigamy statute mandating some degree of culpability with regard to "being married" would be much more narrowly tailored. 141 Indeed, the Court has struck down more limited prohibitions on marriage. For example, in Safley, the Court struck down a statute that effectively prohibited prison inmates from marrying because the state could not sufficiently justify its ban, see Safley, 482 U.S. at 97-99, even though as a rule affecting prisoners, the regulation was subject to a lesser standard of scrutiny, see id. at 81.
189. See supra pp. 853-54.
190. See sources cited infra note 309. The importance of focusing on which issues are actually presented in assessing the Court's holding is particularly clear in Williams, however, given its procedural history. The opinion considered here was the second time the case had reached the Supreme Court. The first time the Court overturned the bigamy convictions on the ground that North Carolina had to respect Nevada's divorce decree, even though the other spouses had not been served with process in Nevada and recognition of the divorce offended North Carolina's public policy. See Williams v. North Carolina, 317 U.S. 287, 303 (1942). The Court was able to reach the opposite conclusion about the validity of the same Nevada divorce decrees the second time the case came before it because, it said, the claim that no bona fide domicile had been acquired in Nevada had not been presented by the record in the first case. See Williams, 325 U.S. at 227. Thus, that the holding of the first Williams decision was limited to the issues presented to the Court was essential to the second Williams decision.
191. As Justice Murphy wrote in his concurring opinion: Petitioners especially must be deemed to have been aware of the possible criminal consequences of their actions in view of the previously settled North Carolina law on the matter. This case, then, adds no new uncertainty and comes as no surprise for those who act fraudulently in establishing a domicil[e] and who disregard the laws of their true domiciliary states. Williams, 325 U.S. at 243 (Murphy, J., concurring) (citation omitted).
192. 388 U.S. 1 (1967).
193. Commentators disagree about whether clear recognition of the right to marry as fundamental came in 1967 in Loving, or in 1978 in Zablocki v. Redhail, 434 U.S. 374 (1978). Compare CHEMERINSKY, supra note 140, at 644 (Loving), and Drinan, supra note 140, at 360 (Loving), with Nedrow, supra note 30, at 324 (Zablocki), and Developments in the Law - The Constitution and the Family, supra note 140, at 1250 (Zablocki). Either way, establishment of the right was at least twenty-two years away when the Court decided Williams.
194. Williams, 325 U.S. at 238.
195. Id. at 243 (Murphy, J., concurring).
196. See id. at 276-77 (Black, J., dissenting). According to Justice Black, the Court's decision allowing a second state to find that a first state lacked jurisdiction to issue a divorce decree meant that persons who receive ex parte divorces can do little more than guess whether their divorces will be recognized in other states, and thus, whether they will be subject to criminal liability if they remarry - a circumstance Justice Black concluded was repugnant to due process. See id.
197. See id. at 265 n.6.
198. See id. (citing State v. Bell, 66 Tenn. 9 (1872), and Greenhow v. James, 80 Va. 636 (1885)).
199. 355 U.S. 225 (1957).
200. See Brief of the Attorney General of California for Respondent at 3-4, Lambert (No. 47).
201. Justice Douglas's opinion for the Supreme Court stated suggestively that she was "arrested on suspicion of another offense." Lambert, 355 U.S. at 226. The record does not establish what led to Lambert's custodial detention. In proffered testimony that the trial court did not permit, however, Lambert stated that the police had seized her on the street, taken her to the police station, and repeatedly and thoroughly searched her, including a strip search, apparently looking for narcotics. See Appellant's Opening Brief at 5, Lambert (No. 47). At that point, she was charged with violating the registration law. See id.
202. See Lambert, 355 U.S. at 226. The ordinance under which Lambert was charged provided, in relevant part: "It shall be unlawful for any convicted person to be or remain in the City of Los Angeles for a period of more than five day [sic], without, during such five-day period, registering with the Chief of Police . . . ." LOS ANGELES, CAL., CODE § 52.39(a), available in Appellee's Brief app. A, Lambert (No. 590).
203. See Brief of Amicus Curiae for Appellant at 8, Lambert (No. 47).
204. See Transcript of Record at 17-18, Lambert (No. 590).
205. See id. at 18.
206. See id. at 17.
207. See id.
208. Id. at 18 (internal quotation marks omitted).
209. See id. at 20. The probation was also conditioned on Lambert not violating any law regarding the public health, welfare, or morals. See id. The possibility of being sent to jail for violating probation was real for Lambert, as she had previously been jailed for violating probation on one of her forgery convictions. See id.
210. Lambert v. California, 335 U.S. 225, 228 (1957).
211. Id.
212. Id. at 229 (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 50 (1938)) (internal quotation marks omitted).
213. Id. at 229-30. Perhaps one can conclude that the Court intended the opinion to apply at least a bit beyond Lambert herself from its use of the pronoun "he" in this statement of the holding, even though Lambert was a woman.
214. See Dubin, supra note 15, at 383; Hart, supra note 15, at 433-35; Mueller, supra note 15, at 1104.
215. Rarely, but not never. See United States v. Mancuso, 420 F.2d 556, 557-58 (2d Cir. 1970) (holding that probability of knowledge of a statute's provisions is constitutionally mandated for a statute requiring narcotics law violators to register with customs officials on leaving and entering the country); State v. Garcia, 752 P.2d 34, 35-36 (Ariz. Ct. App. 1987) (requiring proof that the defendant had probability of knowledge of duty under a statute punishing failure to register as a sex offender); State v. Stephen M., No. CR 94406589, 1995 WL 904100, at *7-*8 (Conn. Super. Ct. Nov. 7, 1995) (holding that the Constitution mandates proof that the defendant should have known of his duty to surrender his handgun prior to conviction under a statute prohibiting possession of a handgun while subject to a protective order).
216. Lambert, 355 U.S. at 232 (Frankfurter, J., dissenting).
217. Compare Sanford H. Kadish, Commentary: Justice Douglas and the Criminal Law: Another View, in "HE SHALL NOT PASS THIS WAY AGAIN": THE LEGACY OF JUSTICE WILLIAM O. DOUGLAS 149, 151 (Stephen L. Wasby ed., 1990) (derelict prediction was "altogether right" on the level of constitutional adjudication),
218. RICHARD G. SINGER & JOHN Q. LAFOND, CRIMINAL LAW: EXAMPLES AND EXPLANATIONS 108 (1997)
219. (Lambert is derelict precisely as Justice Frankfurter predicted), Coffee, supra note 19, at 240-45 (Justice Frankfurter's prediction has been confirmed over time), Ann Hopkins, Mens Rea and the Right to Trial by Jury, 76 CAL. L. REV. 391, 402 (1988) (Justice Frankfurter need not have feared), Stuntz, supra note 27, at 33, 35 (Lambert has been "curiously uninfluential" and its progeny almost nonexistent), and Tushnet, supra note 15, at 792 (Lambert "has had no significant impact"),
220. with Steven B. Duke, Justice Douglas and the Criminal Law, in "HE SHALL NOT PASS THIS WAY AGAIN": THE LEGACY OF JUSTICE WILLIAM O. DOUGLAS, supra, at 133, 137 (although rarely cited, Lambert's "core idea . . . has . . . become commonplace and is often used to interpret criminal statutes"),
221. and A.F. Brooke II, Note, When Ignorance of the Law Became an Excuse: Lambert & Its Progeny, 19 AM. J. CRIM. L. 279, 289 (1992) (derelict prediction could "hardly have been more wrong"). See also Saltzman, supra note it, at 1605 (Lambert is "a derelict of sorts, but not an obscure one").
222. See JOHN S. BAKER, JR., DANIEL H. BENSON, ROBERT FORCE & B.J. GEORGE, JR., HALL'S CRIMINAL LAW 710-13 (5th ed., The Michie Co. 1993) (reprinting Lambert);
223. RICHARD J. BONNIE, ANNE M. COUGHLIN, JOHN C. JEFFRIES, JR. & PETER W. LOW, CRIMINAL LAW 159-61 (1997) (same);
224. JOSEPH G. COOK & PAUL MARCUS, CRIMINAL LAW 148-52 (4th ed. 1999) (same);
225. GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW 268-70 (4th ed. 1996) (same);
226. JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 170-73 (1994) (same);
227. PHILLIP E. JOHNSON, CRIMINAL LAW 23-26 (4th ed. 1990) (same);
228. SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 274-77 (6th ed. 1995) (same);
229. JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDAR, CRIMINAL LAW 296-300 (3d ed. 1995) (same);
230. ARNOLD H. LOEWY, CRIMINAL LAW: CASES AND MATERIALS 222-25 (1995) (same);
231. ANDRE A. MOENSSENS, RONALD J. BACIGAL, GERALD G. ASHDOWN & FRED E. INABU, CRIMINAL LAW 100-02 (6th ed. 1998) (same);
232. STEVEN A. SALTZBURG, JOHN L. DIAMOND, KIT KINPORTS & THOMAS A. MORAWETZ, CRIMINAL LAW 233-36 (1994) (same);
233. JOHN M. BRUMBAUGH, CRIMINAL LAW AND APPROACHES TO THE STUDY OF LAW 224 (2d ed. 1991) (discussing, but not reprinting, Lambert);
234. PAUL H. ROBINSON, FUNDAMENTALS OF CRIMINAL LAW 216 (2d ed. 1995) (same);
235. RICHARD G. SINGER & MARTIN R. GARDENER, CRIMES AND PUNISHMENT: CASES, MATERIALS, AND READINGS IN CRIMINAL LAW 281 (2d ed. 1996) (same);
236. LLOYD L. WEINREB, CRIMINAL LAW 615 n.86, 618 n.89 (6th ed. 1998) (same). But see MYRON MOSKOVITZ, CASES AND PROBLEMS IN CRIMINAL LAW (4th ed. 1999) (neither discussing nor reprinting Lambert).
237. See sources cited infra notes 173-175.
238. See FLETCHER, supra note 11, § 6.4.1, at 424; Larry Alexander, Reconsidering the Relationship Among Voluntary Acts, Strict Liability, and Negligence in Criminal Law, SOC. PHIL. & POL'Y, Spring 1990, at 84, 87 & n.18; Dubin, supra note 15, at 382; Duke, supra note 170, at 138; Husak, supra note 11, at 211 n.80; Low, supra note 62, at 555 n.32; Perkins, supra note 15, at 1070-71; Saltzman, supra note 11, at 1602; Singer, supra note 11, at 402 n.304; Stuntz, supra note 27, at 33; Brooke, supra note 170, at 292.
239. See Hippard, supra note 15, at 1048; Levenson, supra note 15, at 457 n.288; Mueller, supra note 15, at 1104; Perkins, supra note 15, at 1070-71; Tushnet, supra note 15, at 792.
240. See Coffee, supra note 19, at 240 (Lambert placed a limit on what the legislature could criminalize); Hart, supra note 15, at 434 (Lambert recognized that "being a 'criminal' must mean something"); Jeffries & Stephan, supra note 27, at 1375-76 n.156; Kadish, supra note 170, at 151 (the logic of Lambert is that strict liability is unconstitutional, although the Court resisted saying so); Mueller, supra note 15, at 1104 (the logic of Lambert indicates that moral blameworthiness matters and that strict liability is beginning to end).
241. See Jeffries & Stephan, supra note 27, at 1375-76 n.156; see also DRESSLER, supra note 11, at 154 (stating that such an approach "would jeopardize the enforcement of many malum prohibitum offenses"). This is not to say that procedural due process does not require some minimum level of notice about illegality. It plainly does, just not to the degree of probability of knowledge. As Sanford Kadish has noted, however, three Supreme Court cases finding inadequate notice decided shortly after Lambert - Raley v. Ohio, 360 U.S. 423 (1959), Bouie v. City of Columbia, 378 U.S. 347 (1964), and Cox v. Louisiana, 379 U.S. 559 (1965), each of which might have cited Lambert (they involved circumstances in which the defendant was misled to some degree about the law by state officials) - did not mention it. See Kadish, supra note 170, at 151. "It is as if the Court went out of its way to keep the Lambert germ isolated." Id.
242. See Ratzlaf v. United States, 510 U.S. 135, 149 (1994); Liparota v. United States, 471 U.S. 419, 423-25 (1985).
243. See Ratzlaf, 510 U.S. at 146; Liparota, 471 U.S. at 424-25 & n.6. Indeed, following Ratzlaf, the most recent case of this kind, in which the Supreme Court held that the crime of structuring included the element of knowing that structuring was a crime, Congress expressly overruled the Court's decision by passing a new statute, 31 U.S.C. § 5324 (1994), making plain that knowledge of the law against structuring was not required for guilt. See H.R. REP. No. 103-438, at 22 (1994) (stating that § 5324 restores Congress's clear intent that currency reporting crime requires only an intent to evade reporting requirements, not proof that the defendant knew that structuring was illegal). Not surprisingly, the constitutionality of the new statute has been upheld, see United States v. Wrobel, No. 97-50352, 1998 WL 205776, at *1 (9th Cir. Apr. 17, 1998) (mem.), as ten of the circuit courts of appeals had, prior to Ratzlaf, interpreted the old statute not to require knowledge of the law, see Ratzlaf, 510 U.S. at 152 & n.3 (Blackmun, J., dissenting). By arguing that the law should be changed to constitutionalize the rule of Ratzlaf, William Stuntz also implicitly recognizes that at present mens rea as to illegality is not required under the Constitution. See Stuntz, supra note 27, at 31-34.
244. See Kadish, supra note 170, at 151.
245. The Model Penal Code, for example, completely rejects liability for "innocent" mistakes of fact, see MODEL PENAL CODE § 2.04(1) (1985), but is extremely reluctant to allow a defense of "innocent" mistake of governing law, generally hewing to the traditional line that mistake of governing law is no defense, see id. §§ 2.02(9), 2.04(3).
246. Lambert, 355 U.S. at 228.
247. See id. at 231 (Frankfurter, J., dissenting).
248. Lambert, 355 U.S. at 228.
249. See State v. Williams, 484 P.2d 1167 (Wash. Ct. App. 1971).
250. See Ratzlaf v. United States, 510 U.S. 135 (1994). George Fletcher has also argued that the rule in Lambert should apply equally to affirmative conduct. See FLETCHER, supra note 11, at 425; see also Packer, supra note 15, at 132, 134 (explaining that the distinction between doing and not doing is not congruent with awareness or lack of awareness of a legal duty).
251. LOS ANGELES, CAL., CODE § 52.39(a), available in Appellee's Brief app. A, Lambert (No. 590).
252. Lambert, 355 U.S. at 229 (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 50 (Little Brown & Co. 1938) (1881)) (internal quotation marks omitted).
253. See infra pp. 881-87.
254. Although the Constitution does not expressly mention the freedom to travel, "freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U.S. 745, 758 (1966) (upholding an indictment in which the defendant was charged, under a statute prohibiting the violation of constitutional rights, with violating the victims' constitutional right to travel). Indeed, the Supreme Court recognized the right of a citizen to travel freely among the states as early as 1849. See The Passenger Cases, 48 U.S. 283, 410 (1849) (holding that a tax on aliens arriving from foreign parts was unconstitutional); see also id. at 493-94 (Taney, C.J., dissenting) (agreeing that citizens have a constitutional right to pass through all parts of the United States). The right to travel has been recognized as a basic liberty since the Articles of Confederation. See CHEMERINSKY, supra note 140, at 697-700. In addition to The Passenger Cases, Chemerinsky charts the leading right-to-travel cases as Crandall v. Nevada, 73 U.S. 35, 49 (1867), which found a tax for transporting a passenger out of the state unconstitutional; Edwards v. California, 314 U.S. 160, 177 (1941), which found unconstitutional, seventeen years before Lambert, a law prohibiting the bringing of an indigent into the state; and Guest, which was decided nine years after Lambert. See CHEMERINSKY, supra note 140, at 697-99; see also Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (stating that the right to interstate travel is "virtually unqualified") (citation omitted). The right to travel within the United States is based on both "the dormant commerce clause which prevents states from burdening interstate commerce, and the privileges and immunities clause of Article IV, that prevents states from discriminating against out-of-staters with regard to basic liberties." CHEMERINSKY, supra note 140, at 699; see also TRIBE, supra note 140, § 16-8, at 1455-57.
255. The Court's analysis in United States v. Freed, 401 U.S. 601 (1971), supports a reading of Lambert that asks what mental state attaches to the element of "not registering" rather than viewing the case as one of ignorance of governing law. In Freed, the Court was also faced with a registration statute (the crime was possessing an unregistered hand grenade). Justice Douglas (the author of Lambert), writing for the Court, and Justice Brennan, concurring, both treated the registration of the hand grenade as simply another element of the offense and considered the issue in the case to be what mental state, if any, the statute required with regard to that element. See id. at 607 (stating that the act "requires no specific intent or knowledge that the hand grenades were unregistered"); id. at 612, 614 (Brennan, J., concurring in the judgment). As Justice Brennan put the matter: Proof of intent with regard to [the element of non-registration] would require the Government to show that the appellees knew that the grenades were unregistered or negligently or recklessly failed to ascertain whether the weapons were registered. It is true that such a requirement would involve knowledge of law, but it does not involve "consciousness of wrongdoing" . . . . Rather, the definition of the crime, as written by Congress, requires proof of circumstances that involve a legal element . . . . Id. at 614-15. Of course, in Freed, as in Lambert, the legislature made this a strict liability element. See supra p. 852.
256. This becomes clear when one considers the alternatives. Lambert was not negligent or reckless with regard to her own failure to register, as a reasonable person in her position (that is, one without notice of the registration requirement) would not have registered either. See Lambert, 355 U.S. at 228. Obviously, she was not purposely unregistered, as she did not hope or believe that she was unregistered. See MODEL PENAL CODE § 2.02(2)(a)(ii) (1985). Did she knowingly fail to register? It appears the answer is no. Knowingly not registering would entail a conscious awareness that she was unregistered. See id. § 2.02(2)(b)(i). She did not know of the registration requirement, thus she could not have been consciously aware of either her failure to register or her unregistered status.
257. Thus, the trial court permitted Lambert to testify, over the State's objection, that she did not realize that her convictions were for felonies and indicated in its charge to the jury that the State had to prove that she knew she had been found guilty of a felony. See Transcript of Record in the Supreme Court at 17-18, Lambert (No. 590). Presumably no issue arose in the case about Lambert's knowledge of the other two elements - that she had been in Los Angeles for more than five days - and the record in the Supreme Court does not reveal the instruction, if any, on these elements.
258. Lambert, 355 U.S. at 229.
259. "Probability of knowledge" is not precisely akin to either recklessness or negligence (though it is closer to the latter). Rather, probability of knowledge is evidence that could be used to show either recklessness or negligence. To the extent circumstances show a probability that Lambert was aware of the registration requirement (for example, if written notice of the requirement had been given to all probationers resident in Los Angeles at the time of their sentence), that would tend to show both that she was aware of a risk that she was unregistered (recklessness) and, particularly, that a reasonable person would have been aware of the registration requirement (negligence). One might ask, of course, how a probability of Lambert's knowledge of the registration requirement would show her culpability without a showing of actual knowledge. There are two possible answers that are not mutually exclusive. First, as noted above, probability could be an explicit endorsement of an objective culpability approach. If she should have known (which is what the probability of knowledge tells us), that is enough. Second, probability of knowledge could go to the burden of proof on the question of actual knowledge. Under this view, knowledge of her failure to register is not, strictly speaking, an element of the offense that the state must prove beyond a reasonable doubt. Instead, lack of knowledge is an affirmative defense that is rebuttable by the state if it can show a probability of knowledge. See Packer, supra note 15, at 132-33.
260. See United States v. Balint, 258 U.S. 250, 254 (1922).
261. See United States v. Dotterweich, 320 U.S. 277, 285 (1943).
262. See supra pp. 842-49.
263. Balint, 258 U.S. at 254.
264. Morissette v. United States, 342 U.S. 246, 256 (1952).
265. See supra note 189. Of course, the fact that the law deprived individuals of a fundamental right would not by itself make the statute unconstitutional. Rather, it would render the statute subject to strict scrutiny. See CHEMERINSKY, supra note 140, at 700-01; TRIBE, supra note 140, § 16-7, at 1454-65. A statute prohibiting felons from being in Los Angeles, however, would not survive such scrutiny, just as a law against indigents coming into the state did not, see Edwards v. California, 314 U.S. 160, 177 (1941). The burden on the right to travel under such a statute would obviously be extreme. Rather than simply restricting travel, this law would be a rank prohibition for felons wishing to come to Los Angeles. Moreover, it would neither be narrowly tailored nor serve a compelling governmental interest. The only legitimate purpose for such a law would be to ensure that the police were aware of felons residing in the city (the purpose of keeping felons out of the city would not be "legitimate"), and that interest was dismissed by the Court in Lambert as a mere "convenience." See Lambert, 355 U.S. at 229. Plainly, the Lambert statute also was not narrowly tailored, as it covered all felonies committed in California and all offenses committed anywhere else that would have been felonies in California. See LOS ANGELES, CAL., CODE § 52.38 (a), available in Appellee's Brief app. A, Lambert (No. 590). To be sure, the fact of incarceration effectively eliminates a convicted felon's right to travel during the period of such incarceration, just as it effectively eliminates or burdens other rights. A state can impose such burdens on constitutional rights as long as the burden "is reasonably related to legitimate penological interests." E.g., Turner v. Safley, 482 U.S. 78, 89 (1987). The felon does not "waive" the constitutional right in perpetuity, however, by the act of committing a felony. Cf. Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991) (holding that the First Amendment rights of persons who committed crimes rendered invalid a statute that authorized seizure of payments received from writing about the crimes for payment to victims); Safley, 482 U.S. at 95 ("It is settled that a prison inmate 'retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974))).
266. See supra note 194.
267. It also casts light on subsequent decisions struggling over the constitutionality of a federal statute, 18 U.S.C. § 1407 (repealed in 1970), that made it a crime for convicted narcotics offenders to leave the country without registering. See United States v. Logan, 434 F.2d 131, 134-35 (9th Cir. 1970) (distinguishing Lambert); United States v. Mancuso, 420 F.2d 556, 558 (2d Cir. 1970) (following Lambert); Reyes v. United States, 258 F.2d 774, 784 (9th Cir. 1958) (distinguishing Lambert); United States v. Juzwiak, 258 F.2d 844, 847 (2d Cir. 1958) (distinguishing Lambert). The courts that held that the failure to register need not be knowing argued that leaving the country was an act rather than an omission, see Logan, 434 F.2d at 134; Reyes, 258 F.2d at 784; Juzwiak, 258 F.2d at 847, and that because the federal statute was restricted to narcotics offenders it was therefore a "public welfare offense." As to the first rationale, however, leaving the country was analogous to being in Los Angeles and not registering was the same in both contexts. See Mancuso, 420 F.2d at 558 (stating that it would be "sheer sophistry" to distinguish flying to London from flying to Los Angeles on misfeasance/nonfeasance grounds); Juzwiak, 258 F.2d at 847 (Clark, C.J., concurring). As to the second rationale, surely Lambert would not have come out differently if the defendant had been a convicted narcotics offender instead of a forger. The better justification for a distinction would be that there is no fundamental constitutional right to international travel. See Califano v. Aznavorian, 439 U.S. 170, 176-77 (1978) (stating that the right to interstate travel is "virtually unqualified," whereas the right to international travel is "no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment" (quoting Califano v. Torres, 433 U.S. 1, 4 n.6 (1978))). See generally CHEMERINSKY, supra note 140, at 706 (explaining that international travel is not a fundamental right); TRIBE, supra note 140, § 15-14, at 1379 n.8 (same). A law prohibiting convicted narcotics felons from leaving the country would be subject only to the usual rational basis test. See Aznavorian, 439 U.S. at 178 (holding that the legislation merely had to be "rationally based," even if its justifications were "not, perhaps, compelling"); see also CHEMERINSKY, supra note 140, at 708 (saying that "only rational basis review is used for restrictions on foreign travel"). Such a law could be justified as a remedial measure to protect against future narcotics smuggling. Convicted felons are not a suspect class for equal protection purposes; thus the equal protection analysis would also boil down to a rational basis test. At the time these cases considering 18 U.S.C. § 1407 were decided, however, it was far less clear that international travel was not a fundamental right. Dicta in Supreme Court cases had suggested broader protection of an international right to travel than the Court eventually settled on. See Aptheker v. Secretary of State, 378 U.S. 500, 507 (1964); Kent v. Dulles, 357 U.S. 116, 125-26 (1958). Hence the confusion over Lambert's applicability.
268. The Court itself had difficulty settling on a rationale for Lambert. The Court initially voted 9-0 to reverse. See Brooke, supra note 170, at 282. The first draft opinion Justice Douglas circulated pinned the result on the vagueness of the element of being a felon. See id. at 282-83. Douglas rewrote the opinion when his initial rationale failed to command a majority. See id. at 287.
269. The importance of these decisions to broader strict liability issues has been largely unrecognized by courts and commentators. Herbert Packer, in his seminal article Mens Rea and the Supreme Court, cited above in note 15, at 125-27, did see a potential significance in these decisions. Packer hoped that certain First Amendment decisions suggested that "some constitutional doctrines about the substantive limits of criminal law may soon be born." Id. at 127. He did not articulate what those limits would be or how they could be derived from those decisions, however. These lines of cases have developed considerably, but quietly, since Packer wrote 26 years ago.
270. See, e.g., Alexander v. United States, 509 U.S. 544, 555 (1993); Miller v. California, 413 U.S. 15, 23 (1973); Roth v. United States, 354 U.S. 476, 485 (1957); see also CHEMERINSKY, supra note 140, at 829. In Miller, after years of struggle following Roth, the Supreme Court settled on the following test for obscenity: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller, 413 U.S. at 24 (citations omitted); see also CHEMERINSKY, supra note 140, at 832; TRIBE, supra note 140, § 12-16, at 909.
271. See New York v. Ferber, 458 U.S. 747, 758 (1982). The Court in Ferber did not define child pornography; instead, it simply approved a particular statutory definition as covering material unprotected by the First Amendment, even if not obscene. See Ferber, 458 U.S. at 758.
272. 361 U.S. 147 (1959).
273. The ordinance, section 41.01.1 of the Municipal Code of the City of Los Angeles, provided in relevant part: It shall be unlawful for any person to have in his possession any obscene . . . book . . . . 2. In any place of business where . . . books . . . are sold or kept for sale[.] Smith, 361 U.S. at 148 n.1 (quoting the Municipal Code).
274. See Smith, 361 U.S. at 149; People v. Smith, 327 P.2d 636, 639-41 (Cal. App. Dep't Super. Ct. 1958).
275. Smith, 361 U.S. at 150.
276. Id. at 152-53.
277. Id. at 152.
278. See id.
279. The mens rea for the obscenity element discussed in Smith related to knowledge of what was in the book, as opposed to knowledge of the legal standard of what constitutes obscenity. Although some mens rea element is required for the former, no mens rea element is required for the latter. See Hamling v. United States, 418 U.S. 87, 121-24 (1974). In other words, ignorance of the definition of obscenity is no excuse.
280. See United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994); New York v. Ferber, 458 U.S. 747, 765 (1982); Hamling, 418 U.S. at 121; Ginsberg v. New York, 390 U.S. 629, 643 (1968); Mishkin v. New York, 383 U.S. 502, 510 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 278-79 (1964); Manual Enters, v. Day, 370 U.S. 478, 492-93 (1962).
281. See Smith, 361 U.S. at 152-55.
282. See Manual Enters., 370 U.S. at 492-93.
283. Mishkin, 383 U.S. at 511.
284. See Hamling, 418 U.S. at 121; Ginsberg, 390 U.S. at 643.
285. See X-Citement Video, 513 U.S. at 73, 78; Ferber, 458 U.S. at 765.
286. In the Court's words: We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Smith, 361 U.S. at 154. But cf. Manual Enters., 370 U.S. at 493 (stating that failure to "make a 'good faith effort' to ascertain the character of . . . materials" did not satisfy the mental element of the statute).
287. See cases cited supra note 215.
288. In Mishkin, the Court approved an anti-obscenity statute that characterized the requisite mental state as being "in some manner aware of the character of the material." Mishkin, 383 U.S. at 510 (quoting People v. Finkelstein, 174 N.E.2d 470, 471 (N.Y. 1961)) (internal quotation marks omitted) (emphasis removed). The patent sufficiency of that mental element, the Court noted, "makes it unnecessary for us to define today 'what sort of mental element is requisite to a constitutionally permissible prosecution.'" Id. at 511 (quoting Smith, 361 U.S. at 154); see also Hamling, 418 U.S. at 123 (finding that knowledge of the content of the materials was sufficient).
289. See Osborne v. Ohio, 495 U.S. 103, 115 (1990) (stating that the mental state of recklessness "plainly satisfie[d] the requirement . . . that prohibitions on child pornography include some element of scienter").
290. In Ginsberg v. New York, 390 U.S. 629 (1968), the Court upheld against a facial challenge a New York statute that prohibited the "knowing" sale of obscene materials to minors. The statute defined "knowingly" to include "reason to know," id. at 643, which would seem to indicate a negligence standard. In rejecting the challenge to the provision (which centered on what the defendant had to "know" more than the extent of his knowledge), the Court relied on New York's interpretation of the statute as covering "only those who are in some manner aware of the character of the material they attempt to distribute." Id. at 644 (quoting Finkelstein, 174 N.E.2d at 471) (emphasis omitted). This holding would seem to limit application of the New York statute to those with some degree of knowledge. See also Hamling, 418 U.S. at 123 (describing Ginsberg).
291. For example, in United States v. Linetsky, 533 F.2d 192 (5th Cir. 1976), the court held that "general knowledge that the material is sexually oriented" is enough. Id. at 204. This standard would seem to correspond with a mental state of recklessness, because if one is aware that material is sexually oriented, one is arguably aware of an unjustifiable risk that the contents are obscene. In Newman v. Conover, 313 F. Supp. 623 (N.D. Tex. 1970), a district court upheld a negligence standard, approving a state statute that required only that the defendant have "knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material." Id. at 630 (quoting TEX. PENAL CODE ANN. § 527 (1969)). The precedents on which the Conover court relied, however - Ginsberg, and the Northern District of Georgia's approval of a Georgia statute in Great Speckled Bird of the Atlanta Cooperative New Project v. Stynchcombe, 298 F. Supp. 1291 (N.D. Ga. 1969), see Conover, 313 F. Supp. at 630 - did not go so far. Ginsberg is discussed above in note 225. Great Speckled Bird held only that proof that the defendant knew facts that would lead a reasonable person to know the character of the materials could be sufficient evidence for a jury to conclude that the defendant had actual knowledge. See Great Speckled Bird, 298 F. Supp. at 1292-93. Holding that a jury may infer knowledge of X from knowledge of Y (essentially a permissive inference) is an entirely different matter from holding that knowledge of Y without knowledge of X is sufficient for guilt. See Alan C. Michaels, Acceptance: The Missing Mental State, 71 S. CAL. L. REV. 953, 992-94 (1998). This is the difference between a permissive and a conclusive presumption. Cf. Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979) (holding that a conclusive presumption "conflict[s] with the overriding presumption of innocence with which the law endows the accused" (internal quotation marks omitted)).
292. See New York v. Ferber, 458 U.S. 747, 758 (1982).
293. Id. at 765.
294. 18 U.S.C. § 2252 (1994 & Supp. II 1996).
295. See id. at (a)(1).
296. 513 U-S. 64 (1994).
297. See id. at 68.
298. Id. Many might conclude that this is more than just the "most natural" reading of the statutory language (whether or not they agree with Justice Scalia's dissenting conclusion that such a view is "understatement to the point of distortion - rather like saying that the ordinarily preferred total for two plus two is four." Id. at 81 (Scalia, J., dissenting)). The relevant statutory language was as follows: (a) Any person who - (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if - (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; . . . . shall be punished . . . . X-Citement Video, 513 U.S. at 68 (quoting 18 U.S.C. § 2252 (1988 & Supp. V)).
299. See X-Citement Video, 513 U.S. at 78.
300. Id. at 72-73 (emphasis added).
301. Id. at 78 (citing Osborne v. Ohio, 495 U.S. 103, 115 (1990)).
302. See supra note 233 and accompanying text.
303. As the Court concluded: The legislative history . . . persuasively indicates that Congress intended that the term "knowingly" apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. X-Citement Video, 513 U.S. at 77. The dissent put the matter more bluntly: If what the statute says [i.e., that knowledge applies to neither sexually explicit conduct nor use of a minor] must be ignored, one would think we might settle at least for what the statute was meant to say [i.e., that knowledge applies to sexually explicit conduct but not use of a minor] . . . . Id. at 83 (Scalia, J., dissenting).
304. The Court has recently held that the doctrine of constitutional doubt should be invoked only when there "is a serious likelihood that the statute will be held unconstitutional" if the alternative construction (in this case, strict liability with regard to age) is adopted. Almendarez-Torres v. United States, 118 S. Ct. 1219, 1228 (1998). Moreover, the doctrine is not applied when the "fear of a constitutional difficulty . . . , upon analysis, will evaporate." Id. Thus, while the seven Justices in the majority in X-Citement Video evidently believed that strict liability with regard to the age of the minor would present "a serious likelihood" of unconstitutionality, Justice Scalia, joined in dissent by Justice Thomas, concluded in dicta that the statute would be constitutional, as long as it required knowledge of the sexually explicit nature of the materials. See X-Citement Video, 513 U.S. at 85 (Scalia, J., dissenting). Because Scalia viewed the material involved as "not merely pornography but fully proscribable obscenity, except to the extent it is joined with some other material," id. at 84, he considered it "of minimal First Amendment concern," id. at 85. This minimal First Amendment concern was outweighed, in Scalia's view, by his perception that "the unconstitutionality of such absolute liability will cause Congress to leave the world's children inadequately protected against the depredations of the pornography trade." Id. Beyond the obvious fact that seven Justices disagreed, two points about Scalia's argument deserve mentioning. First, his argument, by depending on the notion that knowledge of the age of minors will be difficult to prove, fails to consider that intermediate mental states, such as recklessness or negligence, or even a duty to try to determine whether there are minors, might well be constitutional alternatives to strict liability. See supra pp. 869-70 (discussing the level of scienter in Smith). Indeed, the Court was careful in its opinion to state that "a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts."
305. X-Citement Video, 513 U.S. at 78 (emphasis added). The acceptability of mental states other than actual knowledge significantly reduces any "compelling need" for strict liability that would justify ignoring a constitutional right. Second, Scalia's point is only made in dicta and should be discounted accordingly. The view adopted by the dissent was that the statute required knowledge only as to the interstate shipping element, and therefore was unconstitutional. See id. at 85-86 (Scalia, J., dissenting).
306. See Scales v. United States, 367 U.S. 203, 228-29 (1961) (holding that a group engaging in illegal advocacy is not protected by the First Amendment).
307. See id. at 225-29.
308. In reaching this conclusion, the Court has used language similar to the language used in the freedom of expression cases. Absence of a scienter requirement would "tend[] to inhibit the exercise of constitutionally protected rights," see id. at 229, in this case, freedom of association.
309. 243; 344 U.S. 183 (1952).
310. See 361 U.S. 147, 151-52 (1959).
311. See Wieman, 344 U.S. at 190-91. As the Court put it, "In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when each man begins to 'eye his neighbor as a possible enemy.'" Id. at 191 (quoting Judge Learned Hand, Address at the 86th Convocation of the University of the State of New York (Oct. 24, 1952)).
312. Id.
313. See United States v. Robel, 389 U.S. 258, 264-66 (1967) (crime of working in a defense facility as a member of a communist party); Aptheker v. Secretary of State, 378 U.S. 500, 509-12 (1964) (crime of using a passport as a member of a communist party - also decided on right to travel grounds); Scales, 367 U.S. at 229 (crime of membership in an organization advocating the overthrow of the government by violence); CHEMERINSKY, supra note 140, at 944 (stating that the government may not punish membership in an organization absent knowledge of illegal objectives); see also TRIBE, supra note 140, at § 12-26, 1015 (stating that the government may not directly punish the fact of membership in an association). In addition to knowledge of the nature of the illegal organization, the Court has required a specific intent to further the organization's unlawful aims. See, e.g., Elfbrandt v. Russell, 384 U.S. 11, 15-19 (1966). The Court has also applied the same rules in the context of civil punishments. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 606-07 (1967) (finding unconstitutional a dismissal from a public teaching position based on a refusal to deny membership in the Communist Party).
314. 410 U.S. 113 (1973).
315. Planned Parenthood v. Casey, 505 U.S. 833, 846 (1993) (describing Roe's essential holding); see Roe, 410 U.S. at 164-65.
316. Casey, 505 U.S. at 846. The state may restrict abortions after fetal viability only if the state excepts pregnancies that endanger the woman's life or health. See id.
317. See id. at 879.
318. See id. ("We . . . reaffirm Roe's holding that 'subsequent to viability, the State . . . may, if it chooses, . . . proscribe abortion except where it is necessary . . . for the preservation of the life or health of the mother.'" (quoting Roe, 410 U.S. at 164-65)).
319. 439 U.S. 379 (1979), overruled in part on other grounds, Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).
320. Colautti, 439 U.S. at 380-81. The statute provided in relevant part: (a) Every person who performs or induces an abortion shall prior thereto have made a determination based on his experience, judgement or professional competence that the fetus is not viable, and if the determination is that the fetus is viable or if there is sufficient reason to believe that the fetus may be viable, shall exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother. . . . . (d) Any person who fails to make the determination provided for in subsection (a) of this section, or who fails to exercise the degree of professional skill, care and diligence or to provide the abortion technique as provided for in subsection (a) of this section . . . shall be subject to such civil or criminal liability as would pertain to him had the fetus been a child who was intended to be born and not aborted. Pennsylvania Abortion Control Act, 1974 Pa. Laws 209, PA. STAT. ANN. tit. 35, § 6605(a) (Purdon 1977), quoted in Colautti, 439 U.S. at 380-81 n.1.
321. Colautti, 439 U.S. at 396.
322. See id.
323. 63 F.3d 1452 (8th Cir. 1995).
324. The criminal penalty provision of the statute, S.D. CODIFIED LAWS § 34-23A-10.2 (Michie 1994), made violation a Class 2 misdemeanor, punishable under state law by a 30-day imprisonment, a $200 fine, and a report of the conviction to the board of medical examiners. See Miller, 63 F.3d at 1456 n.6, 1463.
325. The civil damages provision, S.D. CODIFIED LAWS § 34-23A-23 (Michie 1994), provided for $10,000 in punitive damages in addition to "treble whatever actual damages the plaintiff may have sustained." Miller, 63 F.3d at 1455 n.5, 1463.
326. See Miller, 63 F.3d at 1465, 1467. The effect of strict liability with regard to these elements, the court reasoned, was to authorize penalizing a physician who "performs an abortion on a minor who he reasonably believes is more than eighteen years old . . . [or] who in good faith supplies the mandatory information over the phone to the wrong person." Id. at 1467.
327. See Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 203-06 (6th Cir. 1997), cert. denied, 118 S. Ct. 1347 (1998); Summit Med. Assocs. v. James, 984 F. Supp. 1404, 1446-48 (M.D. Ala. 1998). In Voinovich, the statute imposed a negligence standard, as opposed to strict liability. The statute banned the performance of post-viability abortions except in cases of medical emergency or medical necessity. The existence of "emergency" and "necessity" were to be determined by the physician "in good faith in the exercise of reasonable medical judgment." Voinovich, 130 F.3d at 204 (quoting OHIO REV. CODE ANN. § 2919.17(A1) (Banks-Baldwin 1997)). In the Court's words, "[A] physician may act in good faith and yet still be held criminally and civilly liable if, after the fact, other physicians determine that the physician's medical judgment was not reasonable." Id. A statute, such as Ohio's, that does not punish an objectively reasonable mistake but does punish an objectively unreasonable mistake is more accurately described as imposing a negligence standard than as imposing strict liability. Like strict liability, however, liability under the Voinovich statute is objective, in the sense that it may be imposed even when the doctor in good faith believes in the emergency or necessity. The Voinovich court concluded that the absence of "a scienter requirement renders these exceptions unconstitutionally vague, because physicians cannot know the standard under which their conduct will ultimately be judged." Id. at 205. As Justice Thomas noted in his dissent from denial of certiorari in the case, the court "appears to have been concerned not so much with vagueness, but rather with the statute's lack of a scienter requirement relating to physician determinations about the medical necessity of an abortion." Voinovich v. Women's Med. Prof'l Corp., 118 S. Ct. at 1349 (Thomas, J., dissenting from denial of cert.). Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, thought the Court should hear the appeal in part because he questioned whether, in the abortion context, the Constitution mandated a scienter requirement See id.
328. See Voinovich, 130 F.3d at 203-06 (holding a negligence standard unconstitutional); James, 984 F. Supp. at 1448 (holding a strict liability standard unconstitutional).
329. See Schulte v. Douglas, 567 F. Supp. 522, 527-28 (D. Neb. 1981) (striking down a statute imposing strict liability with regard to whether a fetus is "alive with any chance of survival"), off'd sub nom. Women's Services, P.C. v. Douglas, 710 F.2d 465, 466 (8th Cir. 1983) (per curiam) (finding "no error of law" in the district court's holding); cf. Planned Parenthood Ass'n v. Ashcroft, 655 F.2d 848 (8th Cir. 1981), aff'd in part and rev'd in part on other grounds, 462 U.S. 476 (1983). In Ashcroft, the district court had struck down the statute as unconstitutional because, inter alia, no culpable mental state was required with regard to viability. See Ashcroft, 655 F.2d at 852-53. The court of appeals reversed by reading a culpable mental state
330. Virginia's newly enacted Partial Birth Abortion Act, VA. CODE ANN. § 18.2-74.2 (Michie 1998), which took effect on July 1, 1998, provides in part: [A] physician shall not knowingly perform a partial birth abortion that is not necessary to save the life of a mother. A violation of this section shall be punishable as a Class I misdemeanor. § 18.2-74.2(A). Prior to the effective date of the statute, several plaintiffs brought suit to enjoin its enforcement on the grounds that it is unconstitutionally vague and imposes a facially unconstitutional burden on the right to abortion. See Richmond Med. Ctr. for Women v. Gilmore, 144 F.3d 326, 327 (4th Cir. 1998) (Luttig, J., granting stay). The district court issued a preliminary injunction, but Judge Luttig of the court of appeals stayed the injunction pending appeal. See id. The language of the statute appears ambiguous with regard to whether the "knowing" requirement applies to the element of "not necessary to save the life of a mother." Under the principle of constitutional innocence, strict liability with regard to that element would be unconstitutional, because it is essential to the state's ability to prohibit the procedure. The decisions of other courts in similar cases suggest the same result. See supra pp. 875-76. Although Judge Luttig did not address this issue directly in his opinion, in discussing the mens rea requirements of the statute he listed only intentionally performing the procedure and knowing that it will kill the fetus, see Gilmore, 144 F.3d at 328, while also indicating that he thought the statute was constitutional, see id. In any event, Judge Luttig's statements were dicta, as he based his grant of the stay on his view that the plaintiffs lacked standing. See id. at 332. Nonetheless, the issue seems sure to resurface. See Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit at 15-16, Voinovich, 118 S. Ct. 1347 (listing 34 abortion statutes that could be influenced by some part of the Voinovich decision).
331. See supra sections II.B-C.
332. See supra section II.A.
333. See supra p. 869.
334. Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992).
335. See supra note 140.
336. The relationship between the "act requirement" and the "voluntariness requirement," as well as their severability, are controversial issues. See DRESSLER, supra note 11, at 69 n.4. For a good discussion, see Paul H. Robinson, Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?, in ACTION AND VALUE IN CRIMINAL LAW 187, 187-202 (Stephen Shute, John Gardner & Jeremy Horder eds., 1993). My emphasis here is on the core voluntariness requirement. "[T]he voluntariness requirement is universal in application." Id. at 195; see also LAFAVE & SCOTT, supra note 15, at 199 (stating that a "voluntary act is an absolute requirement for criminal liability"); Johnson, supra note 11, at 1519 (stating that a voluntary act requirement is universal and that public welfare offenses are no exception). But see Allen, Reflections, supra note 84, at 644 (interpreting Montana v. Egelhoff, 518 U.S. 37 (1996), as approving the elimination of voluntariness from the definition of murder in intoxication cases, but describing the case so viewed as "shockingly wrong"). Indeed, although issues of voluntariness "[a]t the edges," DRESSLER, supra note ii, at 75, (for example, hypnosis or addiction) can present difficult issues, the universal acceptance of the core principal has meant that the Supreme Court has not directly addressed it. The Court did address voluntariness indirectly in Robinson v. California, 370 U.S. 660 (1962), and Powell v. Texas, 392 U.S. 514 (1968). Briefly, Robinson involved a California statute that made it a crime to "be addicted to the use of narcotics." Robinson, 370 U.S. at 660. The Court's opinion striking down the statute suggested that it did so because the law punished a status (being an addict) rather than an act, see id. at 666, and because it punished involuntary conduct (an addict arguably uses drugs "involuntarily"), see id. at 667. In Powell, the Court examined a statute criminalizing "be[ing] found in a state of intoxication in any public place." Powell, 392 U.S. at 517. Powell argued that his conviction was unconstitutional because Robinson required a voluntary act and his drunkenness was involuntary given that he was an alcoholic. The four Justices in dissent adopted this view, see id. at 566-67 (Stewart, J., dissenting), while the four-Justice plurality read Robinson more narrowly to mean only that the Constitution forbids punishment for the mere status of being an addict (as opposed to the "act" of being intoxicated in Powell). See Powell, 392 U.S. at 533. Justice White cast the deciding vote against Powell. Although in dictum he agreed with the dissent's understanding of Robinson, see id. at 548-49 (White, J., concurring), so that five Justices understood Robinson to create a stout constitutional voluntariness principle, Justice White thought that Powell did not present the voluntariness issue because, even if Powell became intoxicated involuntarily, he voluntarily appeared in public. See id. at 549-50. The fact that Justice White dissented in Robinson further compli-cates the picture. See generally DRESSLER, supra note 11, at 81-84; Greenawalt, supra note 27, at 928-35; Robinson, supra, at 196-97. Thus, the Supreme Court cases provide a basis for arguing that the constitutional voluntariness requirement forbids punishment of conduct that is "on the edge" of the voluntary/involuntary line - such as drinking by an alcoholic. Although the chances of such an argument succeeding today are probably not good, a constitutional "core" voluntariness requirement that would prohibit the crime of, for example, having an epileptic seizure likely exists. See Kadish, supra note 11, at 286-89 (distinguishing addiction from core involuntariness). As noted by the sources cited above, however, the acceptance of this principle is so universal that a statute in contravention has not reached the Court. 271 That the act or omission must be covered by a statute is a part of the legality requirement, which holds that "a person may not be punished unless her conduct was defined as criminal before she acted." DRESSLER, supra note 11, at 29. The doctrine's constitutional foundations lie in the Ex Post Facto, Bill of Attainder, and Due Process Clauses of the Constitution. See id. at 30-31 (discussing cases); LAFAVE & SCOTT, supra note 15, at 195 (describing the rule as a "basic premise" of criminal law).
337. See generally Douglas Husak & Brian P. McLaughlin, Time-Frames, Voluntary Acts, and Strict Liability, 12 LAW & PHIL. 95 (1993).
338. See supra note 270.
339. See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 76 (1968);
340. see also DRESSLER, supra note 11, at 77 ("The voluntary act requirement is . . . closely linked to the retributivist's respect for human autonomy."). Douglas Husak's argument that the actus reus requirement should be replaced by a "control principle" encompasses the same basic point. See DOUGLAS N. HUSAK, PHILOSOPHY OF CRIMINAL LAW 102-03 (1987); see also Alexander, supra note 173, at 86 (stating that Husak is correct on this point).
341. PACKER, supra note 273, at 75.
342. Id.
343. Id. at 78.
344. See id. at 76-77.
345. See Powell v. Texas, 392 U.S. 514, 548 (1968) (White, J., concurring); Robinson v. California, 370 U.S. 660, 667 (1962).
346. See supra note 270.
347. Section 2.05(1) of the Model Penal Code provides an interesting apparent exception to this rule. Section 2.05 provides that the Code's voluntary act requirement, section 2.01, does not apply to "violations," which are the only kind of strict liability offenses allowed under the Code. See MODEL PENAL CODE § 2.05 (1985). Thus, ironically, in the only circumstance that the Code allows strict liability, it does not require a voluntary act. The exception is only apparent - indeed, it is the exception that proves the rule - because the Code is simultaneously explicit that "violations" are not "crimes" and cannot lead to any sentence other than a fine, forfeiture, or other civil penalty and cannot "give rise to any disability or legal disadvantage based on conviction of a criminal offense." Id. § 1.04. In essence, "punishment" without a voluntary act is limited to the non-criminal context. Whether even such civil "punishment" that was not based on a voluntary act or omission would be constitutional is certainly open to question. The Supreme Court has repeatedly indicated in dicta that there are limits beyond which imposing civil penalties on "innocents" would go too far. See, e.g., Bennis v. Michigan, 516 U.S. 442, 450 (1996); Austin v. United States, 509 U.S. 602, 617 (1993); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90 (1974). Indeed, an argument could certainly be made for the principle of constitutional innocence in the punitive civil context. Such an argument is beyond the scope of this Article, however, and the important point for present purposes is that the Code provision does not authorize strict liability in the criminal context without a voluntary act. Just as instructively, according to the Code's commentaries, of the twenty-eight penal code revisions and proposals that addressed the issue, twenty-seven rejected the Code's view that the voluntary act requirement should not apply in the strict liability context. See MODEL PENAL CODE § 2.05 commentaries at 292 n.9 (1985). Of course, this rejection of the Code's approach fits hand in glove with the widespread rejection of the Code's banishment of strict liability from crimes; while retaining strict liability, legislatures have also retained the voluntary act requirement that is essential to it.
348. United States v. Park, 421 U.S. 658, 674 (1975).
349. Id. at 673.
350. United States v. Dotterweich, 320 U.S. 277, 281 (1943).
351. United States v. Balint, 258 U.S. 250, 254 (1922).
352. A number of scholars have defended strict liability as a policy matter on the ground that some culpability can be demonstrated with regard to an apparent strict liability element of an offense by considering the actor's conduct more broadly. See GROSS, supra note 11, at 346-47; Kelman, supra note 15, at 1517; Low, supra note 62, at 556, 560-64; Wasserstrom, supra note 11, at 742-43. Others have responded that strict liability is nevertheless a bad idea because someone should not be punished on the basis of conduct that is not unreasonable and that the law does not want to discourage. See Johnson, supra note 11, at 1520-21; Kadish, supra note 11, at 268-69; Singer, supra note 11, at 406-07. These arguments about the wisdom of strict liability likely turn on whether the broader conduct that is the basis for culpability is in fact conduct the legislature wishes to discourage. See Wasserstrom, supra note 11, at 737 n.23. As to the constitutionality of strict liability, however, this rationale is a significant, but incomplete, starting point. The principle of constitutional innocence adds the critical importance of the other elements of the offense to the analysis. The other elements of the offense define the limits within which the search for legislatively determined "culpability" can take place. Because the other elements of the crime must be proven beyond a reasonable doubt, if their presence demonstrates imperfect care with regard to the strict liability element, then conviction of the offense will also demonstrate imperfect care. The constitutionality of relying on this maneuver to demonstrate imperfect care, however, depends upon the constitutionality - as opposed to the wisdom - of prohibiting the other elements of the offense absent the strict liability element. Cf. Husak & McLaughlin, supra note 271, at 107-09 (arguing that the principle of legality limits the search for a "voluntary act" to the conduct specified in a criminal statute); DRESSLER, supra note 11, at 79 (using the elements of an offense to limit the "time-frame" in which a voluntary act can be found).
353. GROSS, supra note 11, at 346. Alan Saltzman argues that the Constitution should be interpreted to mandate a defense of "utmost care" in every case. Saltzman, supra note 11, at 1639. That view is consistent with the principle of constitutional innocence. Saltzman does not appear to recognize, however, that "utmost care" could often mean not engaging in the other elements of the offense, so that proof of mens rea regarding the "strict liability" element could indeed be irrelevant if the other elements of the offense were proven. Discussing the fairness of strict liability, Richard Singer recognizes that Saltzman's argument leads to this result, and writes that Saltzman "may concede the entire issue." Singer, supra note 11, at 402 n.305. Whether or not recognizing the "negligence per se" aspect of strict liability "concede[s] the entire issue" on fairness, it certainly does not concede the entire issue of the constitutionality of strict liability. As detailed throughout this Article, but particularly in Part IV below, the principle of constitutional innocence would serve as a substantial check on strict liability.
354. Put differently, the "greater power includes the lesser" argument, see supra note 84, is unavailable when the greater power itself is unavailable.
355. 361 U.S. 147 (1959).
356. Id. at 152-53.
357. In Smith, for example, although one could say that the bookseller was "culpable" for the sale of obscene books because he could have avoided that harm by not selling books at all, that does not make the crime constitutional, because the selling of books - an act beyond the legislative power to punish - cannot, under the principle of constitutional innocence, be the basis of culpability. There must be culpability for the obscenity (he knew the books were obscene, for example), independent of the inherent risk involved in selling books in the first place.
358. See supra pp. 863-64.
359. See supra pp. 868-69.
360. See supra note 84.
361. See supra p. 836.
362. Cf. Staples v. United States, 511 U.S. 600, 605-06 (1994) (stating that the principle of mens rea is important enough to require indications of congressional intent for crimes to be interpreted as dispensing with it); United States v. United States Gypsum Co., 438 U.S. 422, 437-38 (1978) (noting that strict liability has been upheld, but is disfavored); Morissette v. United States, 342 U.S. 246, 250, 260 (1952) (reaffirming Balint, but describing mens rea as essential in a mature system of law).
363. See supra notes 26-27 and accompanying text.
364. See, e.g., Allen, Reflections, supra note 84, at 648-49 ("[V]irtually every . . . foray of the Court into the constitutional aspects of the substantive criminal law . . . . ground down to virtual insignificance in subsequent cases."); Bilionis, supra note 28, at 1292-94; Charles R. Nesson, Rationality, Presumptions, and Judicial Comment: A Response to Professor Allen, 94 HARV. L. REV. 1574. 1580-81 (1981) (the Court "has quickly retreated" on the rare occasions that it has ventured into constitutional limits on substantive criminal law); Perkins, supra note 15, at 1068-69; Saltzman, supra note 11, at 1618-19; Stuntz, supra note 27, at 1; Sundby, supra note 65, at 477 (the Court has been extremely reluctant to adduce constitutional rules of criminal responsibility); Underwood, supra note 84, at 1328.
365. See, e.g., Patterson v. New York, 432 U.S. 197, 201-02 (1977); Powell v. Texas, 392 U.S. 514, 535-36 (1968) (plurality opinion); Lambert v. California, 355 U.S. 225, 228 (1957).
366. For discussions of legislative primacy in criminal law choices, see Bilionis, cited above in note 28, at 1301-18, who discusses legislative primacy in his article to insure that "the familiar will [not] turn into the banal," and Levenson, cited above in note 15, at 454 & n.268. See also Allen, Limits of Legitimate Intervention, supra note 84, at 300 (arguing for legislative primacy in the language of federalism).
367. See, e.g., State v. Dahnke, 57 N.W.2d 553, 554-55 (Iowa 1953).
368. See, e.g., CHEMERINSKY, supra note 140, at 15-25, 640-42 (summarizing many of the leading views and the criticisms thereof and discussing the inevitable need for such principles).
369. In the area of fundamental rights, for example, in addition to the rights already discussed in text, the Court has developed rules, according to one leading commentator's accounting, that severely restrict the legislature's power to punish matters of family autonomy (including the right to custody of one's children, see Santosky v. Kramer, 455 U.S. 745, 758-59 (1982), the right to keep the family together, see Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion), and the right to control the upbringing of children, see Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)), the exercise of rights relating to reproductive autonomy (including the right to procreate, see Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977), and the right to purchase or use contraceptives, see id. at 689), and the exercise of the right to vote, see Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 (1969). See CHEMERINSKY, supra note 140, at 645-85, 710-11.
370. As described by Louis Bilionis: A successful theory of substantive constitutional criminal law, we saw earlier, depends upon the ability to identify some principle that can generate doctrine. . . . Not just any creatively articulated principle will do, however. To be vital in this connection, the principle requires a secure footing in some milieu that our practice of constitutional law recognizes as a legitimate source of content, such as text, history and tradition, or precedent. Bilionis, supra note 28, at 1308 (concluding that the Court's emphasis on legislative primacy has made it difficult for substantive criminal law theories to pass this test). Constitutional innocence plainly satisfies these criteria. The principle is rooted in text to the extent that the rights that determine its scope are textual, the principle is very strongly supported by precedent, and history and tradition seem difficult to separate from precedent in the context of strict liability.
371. A state court, erroneously in my view, reached the opposite conclusion in State v. Pruser, 21 A.2d 641, 642-43 (N.J. 1941).
372. See Dahnke, 57 N.W.2d at 556.
373. See Jeffries & Stephan, supra note 27, at 1348 ("Within the range of permissible legislative choice, the greater-power-includes-the-lesser argument is fully applicable.").
374. See, e.g., Packer, supra note 15, at 152 (advocating such a constitutional rule).
375. A legislature's conclusion that imposing strict liability, rather than negligence, with regard to the minor's age will lead to greater care on the part of liquor sellers would surely not be so irrational that the law would fail the rational basis test of the Due Process Clause. See infra note 348 (discussing the rational basis test). Nor would the choice of this more limited method of protecting minors over a complete ban on liquor sales fail rational basis analysis. It may be bad policy, but that does not make it unconstitutional. See Bilionis, supra note 28, at 1292-94 (defending legislative power to decide on the utility of strict liability). As the Supreme Court has stated: "Imposing liability without independent fault deters fraud more than a less stringent rule. It therefore rationally advances the State's goal. We cannot say this is a violation of Fourteenth Amendment due process." Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991). Labeling such a legislative judgment irrational would be a significant encroachment on legislative primacy. The alternative approach would be to argue that the law punished the liquor seller for conduct that is, in a way that has constitutional force, either beyond his capacity to control or morally innocent. It is difficult to see either argument holding sway constitutionally, however, once one concedes that a law banning the intentional sale of liquor would be constitutional. In any event, even if one concluded that the Due Process Clause encompassed a fundamental right not to be punished for morally innocent acts and that courts, rather than legislatures, could define moral innocence, great difficulties would remain in defining, applying, and limiting the principle. Is strict liability ever just? Is punishment for negligence just? These questions, and others like them, are exceedingly difficult, and contemporary consensus on their answers is lacking. Broader constitutional restrictions on strict liability, however, would need to constitutionalize answers to such questions as new limits on legislative power.
376. See Staples v. United States, 511 U.S. 600, 606-07 (1994); Haslip, 499 U.S. at 15; Liparota v. United States, 471 U.S. 419, 432-33 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978); United States v. Park, 421 U.S. 658, 668-73 (1975); United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 91 (1964); Smith v. California, 361 U.S. 147, 152 (1959); Lambert v. California, 355 U.S. 225, 228 (1957); Morissette v. United States, 342 U.S. 246, 260 (1952); Williams v. North Carolina, 325 U.S. 226, 238 (1945); Marcus v. Hess, 317 U.S. 537, 554 (1943) (Frankfurter, J., concurring); United States v. Behrman, 258 U.S. 280, 288 (1922); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 67-70 (1910).
377. See, e.g., United States v. Henry, 111 F.3d 111, 113-14 (11th Cir. 1997); Stanley v. Turner, 6 F.3d 399, 403 (6th Cir. 1993); United States v. Agnew, 931 F.2d 1397, 1405 n.6, 1408 (10th Cir. 1991); United States v. Sellers, 926 F.2d 410, 416 (5th Cir. 1991); United States v. Green Drugs, 905 F.2d 694, 696 (3d Cir. 1990); Stepniewski v. Gagnon, 732 F.2d 367, 570-71, 573 (7th Cir. 1984); United States v. Pruner, 606 F.2d 871, 873 (9th Cir. 1979); McQuoid v. Smith, 556 F.2d 595, 598 (1st Cir. 1977); United States v. Mayo, 498 F.2d 713, 717-18 (D.C. Cir. 1974); United States v. Jarman, 491 F.2d 764, 766-67 (4th Cir. 1974); United States v. Brown, 453 F.2d 101, 108 (8th Cir. 1971); United States v. Nieves, 451 F.2d 836, 837 n.2 (2d Cir. 1971); Smith v. City of Tuscaloosa, 666 So. 2d 101, 104-05 (Ala. Crim. App. 1995); State v. Kreminski, 422 A.2d 294, 296 (Conn. 1979); Surf Attractions, Inc. v. Department of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 480 So. 2d 1354, 1359 (Fla. Dist. Ct. App. 1985); People v. Brown, 457 N.E.2d 6, 8 (Ill. 1983); May's Drug Stores, Inc. v. State Tax Comm'n, 45 N.W.2d 245, 252-53 (Iowa 1950); see also Levenson, supra note 15, at 451 n.261 (collecting recent cases).
378. See, e.g., Perkins, supra note 15, at 1068; Saltzman, supra note 11, at 1591; Nemerson, supra note 15, at 1528-29. Most commentators calling for a broad, substantive constitutional limit on strict liability recognize that Balint and usually also Dotterweich would have to be overruled to comport with their conclusions. See Dubin, supra note 15, at 381; Hippard, supra note 15, at 1052; Packer, supra note 15, at 121, 149-50; Saltzman, supra note 11, at 1592-96; Note, Constitutionality of Criminal Statutes Containing No Requirement of Mens Rea, supra note 15, at 96-101. Because Balint came to the Court on a claim of insufficiency of the indictment, Richard Singer argues that it is not an example of the Court sustaining strict liability; in his view, Balint is a mere pleading case the holding of which "says nothing about whether knowledge . . . is relevant, or if so, upon whom the burden of proof lies." Singer, supra note 11, at 399. Singer makes the point as part of a broader argument that, technically, the Court has never upheld strict liability: he limits Freed on the same grounds as Balint, see id. at 401, and restricts Dotterweich on the ground that "the Court's limited certiorari grant in that case did not include the issue of the constitutionality of applying . . . strict . . . liability to the defendant," id. at 400. (Singer does not address Williams v. North Carolina, 325 U.S. 226 (1945), discussed above at pp. 853-56, but would presumably limit that case on the same basis as Dotterweich and by characterizing Williams as an ignorance of the law case.) Even Singer concedes that these cases, and others, "teem[] with language that supports strict liability" and have been widely read, including by the Court itself, as upholding the constitutionality of strict liability. Singer, supra note 11, at 398-402. Whether or not one agrees with Singer's ultra-narrow reading of the cases, a debate on the issue would appear to be purely academic given the Supreme Court's many statements that it has upheld strict liability, the wide acceptance of those statements by lower courts and commentators, and the obvious reliance on them by legislatures.
379. See Bilionis, supra note 28, at 1279 ("[T]he fact that the people, their legislatures, and their judges have begged to differ so frequently and for so long makes dubious Hart's claim to an accurate descriptive account of the criminal law['s] essence [as punishment of individual moral blameworthiness].").
380. See, e.g., Levenson, supra note 15, at 406 n.29, 413 n.76 (collecting statutes).
381. As the Court recently stated in reaffirming Roe v. Wade, 410 U.S. 113 (1973), when reexamining a prior holding, the Court's "judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992). The Court outlined four primary considerations: (i) whether the rule has proven unworkable; (ii) whether reliance on the rule would add significant costs to changing it; (iii) whether the development of related principles have rendered the rule an abandoned relic; and (iv) whether circumstances are so different as to have de-stroyed the old rule's justification. See id. at 854-55. Viewing the matter objectively, even one not fond of the Balint decision must recognize that these factors would counsel against overruling Balint and its progeny. First, not even strict liability's harshest critics have found it "unworkable." The legislative authority not to require a mental state with regard to particular elements of a crime has not prevented courts from rationally interpreting and applying statutes, particularly following Morissette's articulation of a presumption of a mental element in most circumstances. See Morissette v. United States, 342 U.S. 246, 260-63 (1952). Second, and perhaps most importantly, a vast amount of intricate federal regulatory legislation enacted over the past 75 years has relied on the constitutionality of some applications of strict liability. See source cited supra note 313. Furthermore, most states have recodified their penal codes and provided for some strict liability, notwithstanding the Model Penal Code's "frontal assault." See MODEL PENAL CODE § 2.05 commentary at 290 (1985) ("[S]trict liability offenses carrying the possibility of imprisonment still exist in most jurisdictions."). A strong constitutional rule against strict liability thus could undermine a significant amount of legislation enacted on the premise of its constitutionality, much of it part of a larger regulatory scheme that could, at least from the legislature's perspective, be thrown out of kilter. Third, as demonstrated by the continued, though cabined, use of strict liability, the holding that it is constitutional is hardly an abandoned relic. See MODEL PENAL CODE § 2.05 commentary at 290 n.7 (documenting recent cases upholding strict liability); Parts III-IV. To the contrary, it is part of the Court's consistent refusal to restrict the legislature's ability to define crimes. See Bilionis, supra note 28, at 1304-06. Finally, although the wisdom of strict liability has always been open to question, the reasons for concluding that it is or is not a part of the legislative power have not changed over the past 75 years. Indeed, the demise of Lochner in the 1930's, which occurred after Balint was decided in 1922, would suggest that there is less basis today (rather than more) for concluding that strict liability, particularly regarding economic regulation, is beyond the legislative power. 315 See supra p. 882.
382. The survey was conducted through searches of the Westlaw ALLCASES database, which includes all reported federal and state cases and many unreported decisions as well. Searches were run for the following terms: i) "Lambert v. California" & "Due Process" & Date (>1984) ii) "Strict Liability" /p [in the same paragraph as] "Constitution!" [the ! is a root expander] & Date (>1984) iii) "Strict Liability" /p "Unconstitution!" & Date (>1984) % [but not including] "Products Liability" iv) The West Constitutional Law Key number 258(4) after 1984 v) The West Constitutional Law Key number 258(5) after 1984; and vi) "No" or "Absence" or "Lack of" w/3 [within 3 words of] "scienter" or "mental state" or "mens rea" /p "Constitution!" or "Unconstitution!" or "Due Process" & Date (>1984). These searches yielded a total of 1030 cases, though this total included some of the same decisions more than once as well as different opinions in the same case. Each case was then reviewed to determine whether the court considered a constitutional challenge to strict liability. Inevitably, there was some degree of subjectivity in these judgments. If the court construed a statute to provide for strict liability and either upheld or struck down the statute, the case was included. If the court construed a statute to include a mental state requirement or to provide an affirmative defense of lack of some mental state, and the court stated that it reached the construction in part to avoid constitutional issues raised by a strict liability construction, the case was also included. See supra note 239 (discussing the significance of the doctrine of constitutional doubt). If the court construed a statute to include a mental state requirement or to provide an affirmative defense of lack of some mental state, but the court indicated clearly in dicta that a strict liability construction would have been constitutional, the case was included (only five cases qualified on this basis). All other cases were excluded, including the many cases that read mental state requirements into statutes as a matter of statutory construction, without explicit reference to the constitutional issue. Also, only one opinion for any given case was included. This winnowing reduced the number of cases to 162. Of these, 19 were civil cases (regarding the applicability of constitutional innocence to civil cases, see note 280 above) and 7 were pure ignorance of governing law claims. Of the remaining 136 cases, 96 involved state statutes, 39 involved federal statutes, and one involved a Virgin Islands statute. A complete record of the results is on file with the author.
383. See supra pp. 867-73.
384. See United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (reading the knowledge requirement of a statute prohibiting knowing possession or receipt from interstate commerce of child pornography to apply to the "child" element to avoid the constitutional issue); United States v. Colavito, 19 F.3d 69, 70-71 (2d Cir. 1994) (same); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710, 722 (N.D. Ohio 1998) (assessing a statute prohibiting physical contact with another while in a state of semi-nudity in a club, and finding strict liability with regard to physical contact with another unconstitutional); United States v. Edwards, No. 92 CR 884, 1993 WL 433461, at *5-*6 (N.D. Ill. Nov. 4, 1993) (same as X-Citement); United States v. Kempton, 826 F. Supp. 386, 388-89 (D. Kan. 1993) (reading a recklessness requirement into the X-Citement statute); United States v. Long, 831 F. Supp. 582, 585-86 (W.D. Ky. 1993) (same as X-Citement); United States v. Sherin, No. 86 Cr. 480 (MJL), 1987 WL 6146, at *5-*7 (S.D.N.Y. Jan. 28, 1987) (same); People v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348, 362-65 (Colo. 1985) (invalidating a statute prohibiting the promotion of obscene material under which knowledge of the obscenity was presumed); People v. F.P. Books & News, Inc., 533 N.W.2d 362, 364 (Mich. Ct. App. 1994) (reviewing a statute prohibiting disseminating obscene material, and finding unconstitutional a statutory presumption of knowledge of obscenity from knowledge that material contains sexual conduct); Cinema I Video, Inc. v. Thornburg, 351 S.E.2d 305, 314-15 (N.C. Ct. App. 1986) (construing a statute that prohibits dissemination of obscene materials to require that the defendant have knowledge of the content of the disseminated material), aff'd, 358 S.E.2d 383 (N.C. 1987); Aguirre v. State, No. 08-97-00408-CR, 1998 WL 32434, at *2 (Tex. Crim. App. Jan. 29, 1998) (holding that a statute prohibiting nude entertainment within a school zone could not constitutionally apply strict liability); Soundgarden v. Eikenberry, 871 P.2d 1050, 1062 (Wash. 1994) (holding that, for a statute prohibiting the sale or distribution of erotic material, strict liability with regard to the nature of the material was unconstitutional).
385. In State v. Kevin L.C., 576 N.W.2d 62 (Wis. 1997), the court upheld the conviction of a defendant for exposing a child to harmful materials. See id. at 64. Rather than imposing strict li-ability with regard to the child's age, the statute provided an affirmative defense of reasonable mistake of age. See id. at 71. In rejecting the defendant's constitutional challenge, the court implied that the statute might be constitutional even without the affirmative defense. See id. at 72.
386. Compare Gilmour v. Rogerson, 117 F.3d 368, 372-73 (8th Cir. 1997) (upholding an Iowa statute prohibiting sexual exploitation of minors despite the exclusion of a mistake of age defense), United States v. Reedy, 632 F. Supp. 1415, 1422-23 (W.D. Okla. 1986) (holding strict liability regarding age constitutional in a statute prohibiting employing a minor to engage in a sexual performance), Outmezguine v. State, 641 A.2d 870, 877-80 (Md. 1994) (stating that strict liability would be constitutional even if the statute did not provide mistake of age as an affirmative defense), State v. Peterson, 535 N.W.zd 689, 691-92 (Minn. Ct. App. 1995) (holding strict liability regarding age constitutional in a statute prohibiting employing a minor to engage in a sexual performance), State v. White, 464 N.W.2d 585, 588-89 (Minn. Ct. App. 1990) (same), and State v. Fan, 445 N.W.2d 243, 247-48 (Minn. Ct. App. 1989) (same), with United States v. United States Dist Court, 858 F.2d 534, 540-41 (9th Cir. 1988) (ruling that a statute punishing production of material depicting a minor engaged in a sexually explicit performance could not constitutionally forbid a reasonable mistake of age defense), and Cinema I Video, 351 S.E.2d at 320-21 (construing a statute prohibiting employing a minor to engage in a sexual performance as requiring knowledge that the material depicted persons appearing to be minors). See generally Frederick Schauer, Codifying the First Amendment: New York v. Ferber, 1982 SUP. CT. REV. 285, 289 (discussing child pornography statutes).
387. 361 U.S. 147, 151-55 (1959).
388. See supra p. 869.
389. See Outmezguine v. State, 641 A.2d 870, 878-79 (Md. 1994).
390. To be sure, it will often be easier for a producer of pornographic films to determine the age of the performers in the film than it will be for the mere possessor of such films, and the producer is also more likely to be aware of the risk that an actor may be underage. All this likelihood means, however, is that independent culpability with regard to the performer's age, be it negligence or recklessness, ought to be easier to prove against the producer than against the possessor. It does not eliminate the constitutional mandate for such culpability.
391. See supra, pp. 874-76.
392. See Planned Parenthood v. Miller, 63 F.3d 1432, 1465 (8th Cir. 1995).
393. See Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 203 (6th Cir. 1997), cert. denied, 118 S. Ct. 1347 (1998).
394. See Summit Med. Assocs. v. James, 984 F. Supp. 1404, 1447 (M.D. Ala. 1998).
395. See Richmond Med. Ctr. v. Gilmore, 144 F.3d 326, 328-31 (4th Cir. 1998) (Luttig, J., granting stay).
396. See Voinovich v. Women's Med. Prof'l Corp., 118 S. Ct. 1347, 1349 (1998) (Thomas, J., joined by Rehnquist, C.J., and Scalia, J., dissenting from denial of certiorari) ("[W]e have never held that, in the abortion context, a scienter requirement is mandated by the Constitution."). The statute that the court of appeals invalidated in Voinovich essentially made negligence the requisite mental state for liability. See supra note 261. The court of appeals struck down the statute on the ground that it lacked a scienter requirement, by which the court of appeals apparently meant some degree of objective fault, that is, recklessness. See Voinovich, 130 F.3d at 203-06. Unfortunately, the word scienter is sometimes used to indicate a mental state of subjective fault and sometimes used to indicate the presence of any mental element, including negligence. Thus, although he signaled his disapproval of a constitutional scienter requirement in the abortion context, it is at least possible that Justice Thomas would approve a constitutional requirement of objective fault. The principle of constitutional innocence teaches that strict liability would be impermissible in this context, but determining what level of mental state would be required when strict liability is not permitted is a separate question. Full discussion of that issue is beyond the scope of this Article. Three observations can be made, however. First, it would be impossible to answer this question through descriptive analysis. Consensus among courts on "how much" culpability is enough when strict liability is rejected is thoroughly lacking. See supra section U.C. Second, a preliminary answer might be "sufficient culpability to ensure that the punishment is for a voluntary choice apart from the choice to engage in the activity that the legislature cannot forbid." Although this answer comports with the constitutional derivation of the principle, see supra section III.A., and would appear usually to imply a minimum mental state of at least negligence when constitutional innocence applies, judgment of its viability and effect would have to await express recognition of the principle. Third, the opportunity to develop consistent rules about minimum mental states when strict liability is not permitted, based on an explicit understanding of why strict liability is unconstitutional, would be an additional benefit of express recognition of constitutional innocence.
397. See, e.g., Johnson, supra note 11, at 1519; Simons, supra note 65, at 1082 (distinguishing strict liability in criminalizing from strict liability in grading criminal offenses).
398. See Conner v. Iowa Dir. of Div. of Adult Corrections, 870 F.2d 1384, 1387 (8th Cir. 1989); United States v. Peters, No. 92 C 3228, 1992 WL 368035, at *1 (N.D. Ill. Nov. 30, 1992); State v. West, 862 P.2d 192, 205 (Ariz. 1993); People v. Howard, 661 N.Y.S.2d 386, 387-88 (App. Div. 1997); State v. McGuire, 686 N.E.2d 1112, 1117, 1126 (Ohio 1997); State v. Middlebrooks, 840 S.W.2d 317, 336 (Tenn. 1992); State v. Oimen, 516 N.W.2d 399, 408-09 (Wis. 1994). But see State v. Ortega, 817 P.2d 1196, 1204-05 (N.M. 1991) (construing a felony murder statute as requiring proof that the defendant was at least knowingly heedless that death might result from his conduct, and holding that unintentional or accidental killing will not suffice).
399. See United States v. Holland, 810 F.2d 1215, 1223-24 (D.C. Cir. 1987); United States v. Cunningham, 615 F. Supp. 519, 521 (S.D.N.Y. 1985); Jackson v. State, 570 So. 2d 874, 875 (Ala. Crim. App. 1990); State v. Burch, 545 So. 2d 279, 281 (Fla. Dist. Ct. App. 1989); People v. Brooks, 648 N.E.2d 626, 627-30 (Ill. App. Ct. 1995); State v. Hatton, 918 S.W.2d 790, 794 (Mo. 1996); State v. Wheeler, 845 S.W.2d 678, 680-81 (Mo. Ct. App. 1993); State v. Moore, 782 P.2d 497, 504-05 (Utah 1989); State v. Coria, 839 P.2d 890, 895-96 (Wash. 1992); State v. Nero, No. 35786-7-I, 1998 WL 85707, at *2 (Wash. Ct. App. Mar. 2, 1998); State v. Graham, 846 P.2d 578, 579 (Wash. Ct. App. 1993); State v. Carter, 823 P.2d 523, 524-25 (Wash. Ct. App. 1992).
400. See United States v. Cook, 76 F.3d 596, 600-01 (4th Cir. 1996); United States v. Chin, 981 F.2d 1275, 1280-81 (D.C. Cir. 1992); Ramos v. State, 961 S.W.2d 637, 638 (Tex. Crim. App. 1998).
401. See United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996); United States v. Williams, 49 F.3d 92, 93 (2d Cir. 1995) (per curiam); United States v. Griffiths, 41 F.3d 844, 845-46 (2d Cir. 1994); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993); United States v. Sanders, 990 F.2d 582, 584 (10th Cir. 1993); United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993); United States v. Schnell, 982 F.2d 216, 219-22 (7th Cir. 1992); United States v. Mobley, 956 F.2d 450, 454-56 (3d Cir. 1992); United States v. Seale, Nos. 89-4098 et al., 1991 WL 224088, at *11-*12 (6th Cir. Oct. 31, 1991); United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991); State v. Swiger, No. 14651, 1991 WL 47614, at *5 (Ohio Ct. App. Apr. 3, 1991).
402. Compare GROSS, supra note 11, at 368 (arguing that strict liability is just), Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 AM. CRIM. L. REV. 73, 99-102 (1990) (same), and Simons, supra note 65, at 1110-11 (arguing that strict liability is possibly just), with MODEL PENAL CODE § 210.2 commentary at 36-40 (1985) (arguing that strict liability is unjust), FLETCHER, supra note 11, § 9.3.3, at 729 (same), and Roth & Sundby, supra note 27, at 457-60, 490-92 (same).
403. See Simons, supra note 65, at 1105-20. Commentators have expressed different views on this issue, often described as whether there is "moral luck." Compare BERNARD WILLIAMS, MORAL LUCK 20-39 (1981) (arguing that outcomes are relevant to desert),
404. THOMAS NAGEL, MORTAL QUESTIONS 30-31 (1979) (same),
405. and Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 237-38 (1994) (same),
406. with Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES I, 8 & nn.26-28 (1994) (arguing that results are not relevant to desert),
407. Yoram Shachar, The Fortuitous Gap in Law and Morality, 6 CRIM. JUST. ETHICS 12, 14-29 (1987),
408. and Holly Smith, Culpable Ignorance, 92 PHIL. REV. 543, 569-70 (1983) (same).
409. See infra note 348.
410. See Payne v. Tennessee, 501 U.S. 808, 825 (1991). In Payne, the Court held that juries may consider, in deciding whether to impose a death sentence, testimony concerning the impact of a murder victim's death on those who survived, without regard to the defendant's awareness of the particular circumstances of his victim that caused the impact. See id. In essence, the jury may constitutionally choose between life and death for the defendant on the basis of "strict liability" with regard to the impact of the homicide.
411. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir. 1991); United States v. Brooks, 841 F.2d 268, 270 (9th Cir. 1988); Garnett v. State, 632 A.2d 797, 803-05 (Md. 1993); Commonwealth v. Knapp, 592 N.E.2d 747, 748-49 (Mass. 1992); State v. Hoehne, 717 P.2d 237, 239 (Or. Ct. App. 1986); Massey v. State, 933 S.W.2d 582, 584-85 (Tex. Ct. App. 1996). But see State v. Guest, 583 P.2d 836, 838-40 (Alaska 1978).
412. The crime of fornication is the means by which such intentional conduct is sometimes made criminal, with the added element of the sexual partners not being married. As of 1991, fornication was still a crime in 13 states and the District of Columbia. See Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1661 n.9 (1991) (collecting statutes). The survey did reveal one case that suggested an interesting variation on this point. In Commonwealth v. Knapp, 592 N.E.2d 747 (Mass. 1992), the defendant argued that he thought the person who crawled into his bed, and with whom he proceeded to have sexual intercourse, was his overage girlfriend, not the underage victim. The court refused to recognize this as a possible defense, on the ground that the statute applied strict liability as to the identity of the statutory rape victim. Had the defendant claimed that he reasonably believed he was having sex with his wife, something the state presumably cannot prohibit, the doctrine of constitutional innocence would have mandated that he at least be allowed to make the claim.
413. The United States Supreme Court has not directly addressed the constitutionality of fornication statutes. Some commentators have concluded that the logic of the right to contraception cases, particularly Eisenstadt v. Baird, 405 U.S. 438 (1972), dictate that fornication statutes are unconstitutional. In Eisenstadt, the Court struck down on Equal Protection Clause grounds a statute that prohibited the distribution of contraceptives to unmarried persons: "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453. Without a corresponding right to engage in sexual intercourse, the argument runs, the right to contraceptives recognized in Eisenstadt and Griswold v. Connecticut, 371 U.S. 479 (1965), would be meaningless. See Note, supra note 341, at 1663-65; see also State v. Saunders, 381 A.2d 333, 339 (N.J. 1977) (holding that a fornication statute infringed the constitutional right of privacy); TRIBE, supra note 140, § 15-21, at 1423 (Eisenstadt "mandated heightened scrutiny . . . of restrictions on recreational or expressional sex . . . between unmarried lovers"); Note, Fornication, Cohabitation, and the Constitution, 77 MICH. L. REV. 253, 290-91 (1978) (arguing that "the cases preserving the right of privacy in sexual matters together with Eisenstadt" create a constitutional right to be free from state regulation of heterosexual intercourse). On the other hand, even after Eisenstadt, the Court stated explicitly that the constitutionality of fornication statutes is an open question. See Carey v. Population Servs. Int'l, 431 U.S. 678, 694 n-17 (1977) (plurality opinion) ("[T]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual behavior] among adults."). Moreover, individual Justices have more than once stated in dicta that fornication statutes are constitutional. See Griswold v. Connecticut, 381 U.S. 479, 498-99 (1965) (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (stating that the constitutionality of fornication statutes is "beyond doubt"); Poe v. Ullman, 367 U.S. 497, 552 (1961) (Harlan, J., dissenting) (arguing that a ban on the use of contraceptives by married couples would be unconstitutional, but that such a result "would not suggest that . . . fornication . . . [is] immune from criminal enquiry"). Perhaps more ominously for proponents of a right to fornication, Justice White, speaking for the Court, wrote in Bowers v. Hardwick, 478 U.S. 186 (1986), that "the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable." Id. at 191; see also Nelson v. Moriarty, 484 F.2d 1034, 1035-36 (1st Cir. 1973) (per curiam) (stating that nothing in Eisenstadt or Roe v. Wade, 410 U.S. 113 (1973), suggests that strict liability in statutory rape cases is now unconstitutional);
414. Martin J. Siegle, For Better or For Worse: Adultery, Crime & the Constitution, 30 J. FAM. L. 45, 82-85 (1991/1992) (suggesting that although the Court may have formerly recognized a right to sexual privacy, Bowers casts serious doubt on the status of that right).
415. Two possible objections to the use of the constitutional innocence principle may be noted at this point. First, an observer eager to have courts recognize fundamental rights might object that the principle of constitutional innocence would deter courts from doing so. For example, knowledge that a right of choice of sexual partners would make strict liability in statutory rape unconstitutional might lead courts to conclude that there is no such right. The possibility of marginal deterrence of "rights recognition" on this basis is undeniable, although recognizing that the defendant's mental state has constitutional relevance would not reduce in any way the conduct that a legislature could prohibit. My answer to this objection would be skepticism that such marginal deterrence would be significant, and more fundamentally, belief that such risks are inherent in any argument for taking rights seriously, but that without such risks rights would have little value. A second, related, objection would be that the admittedly formal approach of the principle of constitutional innocence relies on an inappropriate, unitary conception of the nature of a right. According to this objection, a "right" is merely a shorthand expression for a bundle of special protections that can vary according to the right involved and are never absolute, and there is no reason that some "rights" cannot be weaker than others - a "right" may forbid direct punishment of the conduct protected by the right (for example, fornication), but permit punishment of the conduct when it causes a strict liability harm (for example, statutory rape). Such an objection may misunderstand the nature of constitutional innocence. Constitutional innocence actually says little about the nature of rights per se. Whether a "right" prohibits the state from punishing the intentional conduct covered by the statute is not an issue that the principle of constitutional innocence addresses. The formal implications of finding a right of at least this strength, however, are that, even with the addition of a strict liability element, the "core culpability" embodied in the voluntary act requirement is missing. See supra pp. 877-81. This outcome has more to do with the nature of culpability than the nature of rights. In any event, putting what may be semantic quibbles about the meaning of a "right" to one side, the arguments from precedent, theory, and pragmatism in support of this formal approach are set out in Parts II and III above.
416. See United States v. Bajakajian, 118 S. Ct. 2018, 2036-37 (1998) (holding that the same standard of "gross disproportionality" applies to both the Excessive Fines and the Cruel and Unusual Punishment Clauses). See generally DRESSLER, supra note 11, at 43-50. The Court's holding in Bajakajian that a forfeiture of $357,144 was a grossly excessive penalty for willful failure to report the removal of currency from the United States may pave the way for greater scrutiny in this area. See Bajakajian, 118 S. Ct. at 2038 n.14 (implying that a five year term of imprisonment would also have been grossly disproportional).
417. See Harmelin v. Michigan, 501 U.S. 957, 998-99 (1991) (Kennedy, J., concurring) (stating that the penological theory on which to base prison terms "is properly within the province of legislatures, not courts," and that "the Eighth Amendment does not mandate adoption of any one penological theory" (internal quotation marks omitted)).
418. See Tison v. Arizona, 481 U.S. 137, 156 (1987) (describing Enmund v. Florida, 458 U.S. 782 (1982), as forbidding the death penalty for minor accomplices who were not shown to have had a culpable mental state regarding causing a death); State v. Weitbrecht, No. 97 CA 588, 1998 WL 549021 (Ohio Ct. App. July 31, 1998) (holding that incarceration for two to ten years for causing a death in the course of committing a strict liability traffic misdemeanor violates the Eighth Amendment); State v. Shy, No. 96 CA 587, 1997 WL 381782, at *4-*6 (Ohio Ct. App. June 30, 1997) (same); State v. Campbell, 691 N.E.2d 711, 713-18 (Ohio Ct. App. 1997) (same); cf. Harmelin, 501 U.S. at 1004 (quoting Solem v. Helm, 463 U.S. 277, 290 n.15 (1983)) (stating in dicta that no sentence of imprisonment is disproportionate for felony murder); State v. Oimen, 516 N.W.2d 399, 408-09 (Wis. 1994) (finding that the intentional commission of a felony combined with strict liability for resultant death was not grossly disproportional to a penalty of life imprisonment); Cole, supra note 336, at 122 ("[I]f certain felonies could be punished as harshly as . . . murder, then the felony-murder rule does not violate negative retributive principles . . . .").
419. See Harmelin, 501 U.S. at 1000 (stating that proportionality review should "be informed by objective factors to the maximum possible extent" (quoting Rummel v. Estelle, 445 U.S. 263, 274-75 (1980) (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion))) (internal quotation marks omitted)); cf. Allen, Limits of Legitimate Intervention, supra note 84, at 295-300 (arguing that to determine the constitutionality of a punishment, a court should compare the amount of punishment to the elements proven beyond a reasonable doubt); Allen, supra note 29, at 342-48; Jeffries & Stephan, supra note 27, at 1384-86 (arguing that the proportionality of aggregated penalties to aggravated culpability should govern the constitutionality of felony murder in any given case).
420. The Due Process and Equal Protection Clauses of the Constitution impose some substantive limitations on the police power even when fundamental rights are not at issue. A criminal statute must bear some relationship to injury to the public. See LAFAVE & SCOTT, supra note 15, at 149-55. Criminal "[l]egislation must be rationally related to a legitimate governmental interest This 'rational basis test" is commonly said to be the minimum standard of judicial review - the standard that all legislation must meet to survive constitutional attack, whether challenged under the due process or the equal protection clause." Scott H. Bice, Rationality Analysis in Constitutional Law, 65 MINN. L. REV. I, I (1980) (citing Village of Belle Terre v. Boraas, 416 U.S. I, 8 (1974), for the equal protection standard, and Williamson v. Lee Optical Co., 348 U.S. 483 (1955), for the due process standard, and noting that the standards may appropriately be treated as identical). Courts have infrequently, but occasionally, invalidated statutes on this basis. See CHEMERINSKY, supra note 140, at 533-45 (citing cases); LAFAVE & SCOTT, supra note 15, at 149-55; Bice, supra, at 4 n.5 (citing cases).
421. Under the Due Process Clauses, a criminal statute will be held unconstitutionally vague not only if it is so unclear that people "of common intelligence must necessarily guess at its meaning," Connally v. General Constr. Co., 269 U.S. 385, 391 (1926), but also if it provides so few guidelines that "[it] vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute," Kolender v. Lawson, 461 U.S. 352, 358 (1983). A statute that "permits and encourages an arbitrary and discriminatory enforcement of the law," Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972), is unconstitutionally vague. See generally John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 212-19 (1985); DRESSLER, supra note 11, at 33-34. A statute that criminalized unavoidable everyday activity, such as "possessing anything," would be vague in this way, because it would allow enforcement authorities to pick and choose their targets at will.
422. Cf. Baender v. Barnett, 255 U.S. 224, 225-26 (1921) (interpreting counterfeiting statute as not covering unknowing possession of counterfeiting devices and suggesting that the opposite result might "infringe[] constitutional safeguards").
423. See United States v. Garrett, 984 F.2d 1402, 1411 (5th Cir. 1993) (holding that punishing by statute the possession of a weapon on an airplane would present serious due process problems if courts construed the statute to cover a person who neither knew nor had reason to know she was carrying a weapon); People v. Small, 598 N.Y.S.2d 431, 436 (Sup. Ct. 1993) (Rothwax, J.) (holding that a statute outlawing the possession of a weapon would be unconstitutional if construed to require knowledge of possession of an "object" without regard to the nature of the object); State v. Michlitsch, 438 N.W.2d 175, 176-79 (N.D. 1989) (construing a statute outlawing the possession of marijuana to allow an affirmative defense of ignorance of the identity of the substance in order to avoid a constitutional problem); cf. People v. Gean, 573 N.E.2d 818 (111. 1991) (avoiding a due process issue by interpreting a statute prohibiting the possession of an automobile title without complete assignment to require knowledge of a lack of complete assignment).
424. Compare State v. Larson, 653 So. 2d 1158, 1164-67 (La. 1995) (upholding strict liability with regard to "permitting" the commission of a crime on the ground that the statute contained an additional element of intentionally selling alcohol on the premises), and State v. Brandner, 551 N.W.2d 284, 286-87 (N.D. 1996) (construing a statute punishing ownership of land on which there are illegal fish traps to allow an affirmative defense of lack of knowledge of the fish traps' presence to avoid a constitutional problem), with State v. Holmberg, 527 N.W.2d 100, 104-05 (Minn. Ct. App. 1995) (upholding strict liability with regard to "permitting" prohibited acts, on the ground that running a business provides sufficient mens rea). Cf. City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 297 (Colo. 1995) (holding that the civil punishment of a license revocation for any violation of law by any agent or employee of an adult entertainment license holder is unconstitutional when strict liability attaches to the fact of the agent's or employee's violation).
425. 598 N.Y.S.2d 431 (Sup. Ct. 1993).
426. Id. at 432.
427. Id. at 434 (citing People v. Munoz, 172 N.E.2d 535 (N.Y. 1960)).
428. See id. at 436.
429. See Larson, 653 So. 2d at 1160. The statute under which the defendant was charged provided in relevant part: "No person holding a retail dealer's permit [a liquor license] and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises . . . ." LA. REV. STAT. ANN. § 26:90(A) (West 1994). The statute provided a maximum penalty of six months in jail. See Larson, 653 So. 2d at 1161.
430. See Larson, 653 So. 2d at 1165 (citing New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 715 (1981)).
431. See id. at 1163, 1166.
432. See id. at 1164.
433. See State v. Holmberg, 527 N.W.2d 100, 104-03 (Minn. Ct. App. 1995); see also State v. Merdinger, 655 A.2d 1167, 1171 n.4, 1172 (Conn. App. Ct. 1995) (erroneously upholding strict liability with regard to the element of failure to pay wages in a statute that prohibited being an employer and failing to pay an employee's wages, and therefore affirming the defendant's 90 day jail sentence).
434. See Hancock v. Thalacker, 933 F. Supp. 1449, 1488-90 (N.D. Iowa 1996) (false statement in prisoner grievances); Keating v. Hood, 922 F. Supp. 1482, 1489 (C.D. Cal. 1996) (false statements in connection with the sale of securities), vacated on other grounds, 133 F.3d 1240 (9th Cir. 1998); Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328, 1350 (E.D. Tex. 1995) (false statement in attorney advertising and the attorney disciplinary rule), aff'd, 100 F.3d 953 (5th Cir. 1996); Howard Gault Co. v. Texas Rural Legal Aid, Inc., 615 F. Supp. 916, 952-53 (N.D. Tex. 1985), rev'd in part on other grounds, 848 F.2d 544 (5th Cir. 1988); People v. Simon, 886 P.2d 1271, 1290-91 (Cal. 1995) (en banc) (false statement in connection with the sale of securities); City of Cuyahoga Falls v. Azodi, No. 15643, 1992 WL 393151. at *2 (Ohio Ct. App. Dec. 30, 1992) (false statement to a police officer).
435. In Texans Against Censorship, the court held that because the Supreme Court has held that false or misleading commercial speech is not constitutionally protected, imposition of strict liability with regard to the falsity was constitutional. See Texans Against Censorship, 888 F. Supp. at 1350. However, "[b]ecause disclosure of truthful, relevant information is more likely to make a positive contribution to decision making than is concealment of such information, only false, deceptive, or misleading commercial speech may be banned. Truthful advertising related to lawful activities is entitled to the protections of the First Amendment." Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 142 (1994) (citations omitted). Because the intentional conduct covered by the statute in Texans Against Censorship, truthful advertising by an attorney, could not be criminally punished, strict liability with regard to the element that eliminates the protec-tion, falsity, is not permissible according to the principle of constitutional innocence. Perhaps the court would have reached a different result had criminal penalties rather than bar discipline been at issue in Texans Against Censorship, but the opinion gives no such indication. In Azodi, the court held that a statute that prohibited the giving of a false name, address, or date of birth to a law enforcement officer could constitutionally apply strict liability to the ele-ment of falsity. Inadvertence or mistake would be no excuse. See Azodi, 1992 WL 393151, at *1-*2. Obviously, giving such information truthfully to a law enforcement officer could not be criminal; thus, the principle of constitutional innocence indicates that this case was wrongly decided. The court apparently approved strict liability in part because it thought there was "no risk" of making an accidental mistake about this information. See id. at *I. The risk might be small, but making it irrelevant is beyond the legislature's power.
436. In Simon, the court construed a statute that prohibited making false statements in connection with the sale of securities as not imposing strict liability with regard to the element of false-hood on the ground that the authorized penalty for the statute, three years imprisonment, meant that the statute would raise significant due process questions if strict liability were imposed. See Simon, 886 P.2d at 1290. To be sure, the penalty imposed is grounds for determining whether the legislature intended strict liability, see, e.g., Morissette v. United States, 342 U.S. 246, 256, 260 (1952), and some penalties under strict liability statutes would run afoul of the prohibition on cruel and unusual punishments if actually imposed, see supra pp. 895-96. In deciding whether strict liability with regard to falsehood offended due process, however, the court should have considered whether the California legislature could outlaw the sale of securities. Strict liability would be constitutional if, but only if, it could do so. See also Keating, 922 F. Supp. at 1489 (containing dicta to the same effect as Simon). The reasoning would be the same whether the penalty was minor or severe.
437. See State v. Carter, 710 So. 2d 110 (Fla. Dist. Ct. App. 1998); State v. Keihn, 542 N.E.2d 963 (Ind. 1989); Village of Johnstown v. Hembree, No. CA-3538, 1990 WL 125189, at *1-*2 (Ohio Ct. App. Aug. 20, 1990).
438. See supra p. 854.
439. See supra pp. 883-84.
440. See supra note 330.
441. The Due Process Clause requires that the state prove beyond a reasonable doubt every element of the crime charged, see Patterson v. New York, 432 U.S. 197 (1977), but the Court has not made clear what limits, if any, the Constitution places on the state's ability to define circumstances or conduct as defenses rather than elements. Some believe that if strict liability is unconstitutional, the state may place the burden of production and persuasion with regard to the defendant's lack of culpability on the defendant. See, e.g., United States v. X-Citement Video, Inc., 982 F.2d 1285, 1296-97 (9th Cir. 1992) (Kozinski, J., dissenting); Levenson, supra note 15, at 462-68; Saltzman, supra note 11, at 1659. Others contend that when some culpability is constitutionally mandated, the state must bear the burden beyond a reasonable doubt. See, e.g., John Quigley, The Need to Abolish Defenses to Crime: A Modest Proposal to Solve the Problem of Burden of Persuasion, 14 VT. L. REV. 335 (1990) (arguing that the state must bear the burden of production and the burden of proof); Sundby, supra note 65, at 500-06 (arguing that the state may shift the burden of production, but must accept the burden of proof). Neither view is implausible, but the Court has certainly not resolved this issue, and its resolution is beyond the scope of this Article. Explicit recognition of the principle of constitutional innocence would assist, however, in bringing the question into sharper relief.
442. The answers to the question posed at the beginning of Part I should now be readily apparent. The distributor of pornographic videos cannot be held liable on the basis of strict liability with regard to the video's containing minors, because the legislature cannot punish the mere distribution of pornographic videos. The drug shipper can be held liable on the basis of strict liability with regard to the mislabeling of the drugs because the legislature could ban the shipment of the drugs altogether. The doctor cannot be held liable on the basis of strict liability with regard to the viability of the fetus because the legislature cannot punish the performance of all abortions. The beer seller can be held liable because the legislature could ban the sale of alcohol.