Proportional mens rea

American Criminal Law Review

Volumn 46, Issue 1, 2009, Pages 127-155

  Smith, Stephen F ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 67549123294     PISSN: 01640364     EISSN: None     Source Type: Journal    
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References (173)

1. Liparota v. United States, 471 U.S. 419, 426 (1985);
2. see also, e.g., Carter v. United States, 530 U.S. 255, 269 (2000).
3. Ratzlaf v. United States, 510 U.S. 135, 144 (1994).
4. See, e.g., Dan M. Kahan, Ignorance of the Law is an Excuse-But Only for the Virtuous, 96 MICH. L. REV. 127, 145-52 (1997);
5. Richard Singer & Douglas Husak, Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer, 2 BUFF. CRIM. L. REV. 859, 882-904 (1999);
6. John S. Wiley Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 VA. L. REV. 1021,1057-1130 (1999).
7. See, e.g., United States v. Freed, 401 U.S. 601, 607 (1971);
8. United States v. Dotterweich, 320 U.S. 277, 280-81 (1943);
9. United States v. Balint, 258 U.S. 250, 251-52 (1922).
10. 342 U.S. 246 (1956).
11. Id. at 262. Among these "new" offenses are regulatory crimes known as "public welfare offenses," which dispense with mens rea as to one or more elements of the actus reus in the interest of the public welfare. Simply stated, public welfare offenses require individuals who engage in activities that create generalized risks of harm to the public at large to use special care to prevent those harms from materializing. See Id. at 255-56.
12. See, e.g., Freed, 401 U.S. at 607 (concluding that a culpable mental state is not required in the "expanding regulatory area involving activities affecting public health, safety, and welfare" and that common-law crimes belong to a "different category").
13. 471 U.S. 419 (1985).
14. See, e.g., Staples v. United States, 511 U.S. 600, 619 (1994);
15. Ratzlaf v. United States, 510 U.S. 135, 144 (1994).
16. 511 U.S. 600 (1994).
17. Id. at 612. In declaring gun possession to be "innocent" conduct, the Court relied on the "long tradition of widespread lawful gun ownership by private individuals in this country."
18. Id. at 610;
19. see also Id. at 621 (Ginsburg, J., concurring in judgment) (faulting the government for "not tak[ing] adequate account of the 'widespread lawful gun ownership' Congress and the States have allowed to persist in this country"). Given this tradition, the mere fact that an item is a gun "cannot be said to put gun owners sufficiently on notice of the likelihood of regulation."
20. Id. at 612 (majority opinion).
21. Id.;
22. see also Id. at 619 (holding that "to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act").
23. Id. at 612. Staples, of course, did not reject the concept of strict liability, which arises when one or more elements of the actus reus require no mens rea at all. Indeed, even as construed in Staples, the possession offense was a strict liability crime because, under Freed, no mens rea is required as to the unregistered status of the firearm. See Id. at 609. The fundamental insight of Staples is that strict liability, if properly limited, is not inconsistent with the goal of innocence protection: mens rea can be safely dispensed with as to elements of the crime that are not central to the blameworthiness of the prohibited act, provided that the remaining elements of the crime supply the requisite blameworthiness (and hence notice). What makes the possession of weapons classified as statutory "firearms" blameworthy is not that they are unregistered - after all, most dangerous items, and indeed most guns, need not be registered - but rather that they are the kind of weapons that traditionally could not be lawfully possessed without strict government regulation. See Id. at 611-12;
24. Freed, 401 U.S. at 616 (Brennan, J., concurring in judgment) (noting that the crime encompasses only "major weapons" as to which "the likelihood of government regulation⋯ is so great that anyone must be presumed to be aware of it"). The Court's insistence on proof of a culpable mental state as to the nature of the "firearm" thus served to exclude innocent gun possession from the crime, even though the weapon's unregistered status is a strict-liability element.
25. The relevant case here is Bryan v. United States, 524 U.S. 184 (1998). The issue in Bryan was whether persons charged with "willfully violating" a federal firearms law have to know of the exact law they violated or whether it is enough that they knew, in a generic sense, they were acting illegally. Because general knowledge of illegality would be enough to guarantee moral culpability, the Court accepted the lesser, more generic showing as sufficient.
26. Id. at 194-96.
27. Ratzlaf v. United States, 510 U.S. 135, 144 (1994).
28. This is precisely what happened in Staples, as previously noted.
29. See supra p. 4. Staples was not an outlier in this regard; the Supreme Court has repeatedly responded to the danger that innocent conduct might result in punishment by adopting heightened mens rea requirements. See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (holding that, to be guilty of obstruction of justice as a "corrupt persuader," consciousness of wrongdoing is required);
30. Ratzlaf, 510 U.S. at 144 (ruling mat defendants cannot be convicted of evading currency-transaction reporting requirements unless they knew such evasion is illegal);
31. liparota, 471 U.S. at 426 (holding that food stamp fraud requires proof that the defendant knew he violated laws concerning permissible uses of food stamps).
32. For a comprehensive discussion of the key cases in this area, see Wiley, supra note 3, at 1034-53.
33. 511 U.S. at 619.
34. 544 U.S. 696 (2000).
35. See Id. at 702 (describing indictment of Arthur Andersen). "Corrupt persuasion" is a form of obstruction of justice prohibited by 18 U.S.C. § 1512(b).
36. Arthur Anderson, 544 U.S. at 703-04.
37. Id. at 706. Arthur Andersen was hardly the first case in which the Court demanded consciousness of wrongdoing in order to exclude innocent conduct from the reach of federal crimes.
38. See Ratzlaf v. United States, 510 U.S. 135, 144 (1994) ("structuring" cash transactions to avoid currency reporting requirements);
39. Cheek v. United States, 498 U.S. 192, 203 (1991) (tax fraud);
40. Liparota, 471 U.S. at 426 (misuse of food stamps).
41. Ratzlaf, 510 U.S. at 144.
42. Carter v. United States, 530 U.S. 255, 269 (2000) (citations omitted).
43. "Normal" persons are those who are not so gravely deficient in their ability to discern right from wrong as to make it unfair to blame them for breaking the law. The law affords defenses, such as insanity and immaturity, to excuse crimes by certain categories of "abnormal" persons, colorfully described by one commentator as "the very young, the very crazy, and the severely mentally retarded." Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L. REV. 1511, 1521 (1992). Even "normal" persons, however, can be confronted with abnormal situations in which they cannot fairly be blamed for committing a crime. In such situations, commission of a crime might be morally appropriate or "justified" (such as breaking into private property to save a life) or, in the case of crimes committed under duress or as a result of entrapment, are "excused" as not fairly attributable to the defendant Abnormal situations, like abnormal persons, are addressed by special defenses (such as necessity, duress, and entrapment, respectively, in -the above examples) rather than mens rea doctrine. These defenses, and mens rea doctrine itself, reflect what Professor Peter Arenella has called the "liberal paradigm for moral responsibility."
44. See generally Id. at 1516-26. According to the paradigm, an individual does not deserve moral blame or punishment unless he "made rational and voluntary choice to engage in behavior that he knew (or more controversially, that he should have known) would (or might) breach community norms under circumstances that gave him a fair opportunity to avoid the breach."
45. Id. at 1523.
46. See Morissette, 342 U.S. 246, 251 (1952) (describing crime as a "compound concept" involving the "concurrence of an evil-meaning mind with an evil-doing hand").
47. The actus reus of mail fraud is plac[ing] in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposit[ing] or caus[ing] to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or tak[ing] or receivpng] therefrom, any such matter or thing, or knowingly caus[ing] to be delivered by mail or such carrier⋯ any such matter or thing. 18. U.S.C. § 1341 (2006).
48. Id.
49. See, e.g., JOSHUA DRESSLER, U NDERSTANDING CRIMINAL LAW § 10.06, at 136 (3d ed. 2001). Common examples of specific-intent crimes include larceny (which requires intent to steal), attempt (which requires intent to commit a crime), and conspiracy (which requires intent to commit a crime or to perform a lawful act through unlawful means). Specific-intent crimes are to be contrasted with "general-intent crimes," which do not require proof of any particular bad purpose or motive. For an attempt to explain the elusive distinction under common law between general and specific intent crimes, see id. § 10.06, at 135-37.
50. "Malice aforethought" has commonly been construed to require either intent to kill or inflict serious bodily injury, recklessness as to a risk of death so extreme as to manifest extreme indifference to the value of human life, or intent to commit a serious felony during which the killing occurs. See, e.g., id. § 31.02[B][2], at 503.
51. See, e.g., 18 U.S.C. § 1111(a) (2006) (incorporating "malice aforethought" requirement in definition of murder). The Model Penal Code does not employ the term "malice aforethought," but, with the exception of the Code's much-narrower definition of felony murder, closely tracks the familiar common-law categories of murder.
52. See MODELPENAL CODE § 210.2 (2001).
53. Compare 18 U.S.C. § 1111(b) (punishments for murder) with 18 U.S.C. § 1112(b) (2006) (punishments for manslaughter). Even within the separate categories of murder and manslaughter, mens rea is used to differentiate between different grades of those offenses. For example, "willful, deliberate,⋯ and premeditated" murders are classified as murder in the first degree, with "[a]ny other murder" constituting second-degree murder only. 18 U.S.C. § 1111(a). First-degree murder is punishable by a minimum of life imprisonment, and potentially the death penalty, whereas any term of years, up to a maximum of life, can be imposed for second-degree murder.
54. See 18 U.S.C. § 1111(a)-(b). Similarly, an intentional killing in the heat of passion in response to legally adequate provocation is punished as voluntary manslaughter, but negligent or reckless killings are classified as involuntary manslaughter. 18 U.S.C. § 1112(a). The maximum punishment for voluntary manslaughter is ten years, as compared to the six years that may be imposed for involuntary manslaughter.
55. See 18 U.S.C. § 1112(b).
56. See DRESSLER, supra note 28, § 12.03[C], at 154-55.
57. As Oliver Wendell Holmes, Jr. famously said of the crime of larceny: "A momentary loss of possession is not what has been guarded against with such severe penalties. What the law means to prevent is the loss of [property taken] wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use without intending to deprive the owner of his property." OLIVER WENDELL HOLMES, JR., THE COMMON LAW 71 (1881).
58. Generally speaking, mistakes of facts are valid defenses where, had the facts been as the defendant reasonably supposed them to be, his conduct would not have been wrongful. The only exception involves mistakes as to strict-liability elements, which require no mens rea and thus admit of no mistake defenses. See generally DRESSLER, supra note 28, §§ 12.03-12.05. Apart from strict-liability elements, mistakes of fact can be a complete defense. The same is true of mistakes of non-criminal law, such as the law determining the validity of divorces where relevant to bigamy prosecutions. The common law rule is that mistakes of noncriminal law are admissible to negate specific intent, id. § 13.02[D][1]-[3]; under the Model Penal Code jurisdictions, such mistakes, like mistakes of fact, can be used to negate any mens rea requirement with which they are logically inconsistent.
59. See MODEL PENAL CODE § 2.04(1)(a) (2001). Neither the common law nor the Code, however, is solicitous of mistakes of criminal law. Except in the rare case where the crime makes knowledge of some aspect of the criminal law an element of the offense, claims of ignorance or mistake of criminal law almost invariably meet with the reflexive retort that "ignorance of the law is no excuse."
60. See MODEL PENAL CODE § 2.02(9) (2001) (mistakes of criminal law no defense);
61. see generally Cheek v. United States, 498 U.S. 192, 199 (1991) (citing "numerous" applications of the doctrine in federal cases).
62. Even unreasonable mistakes are a defense to specific-intent elements. See, e.g., Cheek, 498 U.S. at 202 (noting that individuals who misunderstood their tax obligations cannot be convicted of "willful" violations of the tax code "whether or not the claimed belief or misunderstanding is objectively reasonable"). The common law rule was different, however, for crimes of general intent. For such crimes, negligent mistakes are not a defense. See generally DRESSLER, supra note 28, § 12.05, at 136-38 (summarizing the common law's mistake-of-fact rules).
63. 342 U.S. 246 (1952).
64. Id. at 276.
65. In Morissette, the conversion statute explicitly provides that, to be a crime, the conversion of government property has to be "knowing Q." 18 U.S.C. § 641 (2006). This was significant to the outcome of the case because, as the Court noted, it was impossible for Morissette to "have knowingly⋯ converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property."
66. Morrissette, 342 U.S. at 271.
67. Carter v. United States, 530 U.S. 255, 269 (2000). Professor John Wiley gives a similar description; he says that the Court addresses risks that blameless conduct might result in conviction by "formulat[ing] an additional and minimally sufficient element about mental state to shield blameless conduct from criminal condemnation." Wiley, supra note 3, at 1023 (emphasis added). He finds implicit in the new approach a "rule against requiring superfluous culpability," pursuant to which mens rea requirements should only demand "minimally sufficient culpability."
68. Id. at 1128. For reasons that will soon become clear, it is incorrect to say that mens rea doctrine requires only the minimal level of culpability necessary to avoid conviction for blameless conduct.
69. See MODEL PENAL CODE §§ 2.02(2)(c)-(d) (2001) (recognizing recklessness and negligence as culpable mental states). The Code defines "negligence" as involving unawareness of risks that are so obvious and so substantial and unjustifiable in the circumstances as to amount to a "gross deviation from the standard of care" that a "reasonable person" would have observed. § 2.02(2)(d). Recklessness, by contrast, involves "conscious disregard" of risks that are so substantial and unjustified as to constitute a "gross deviation from the standard of conduct" that a "law-abiding person" would have observed in such circumstances.
70. Id. § 2.02(2)(c). Although negligence is thus regarded as a culpable mental state, the Code drafters chose the higher standard of recklessness as the default mens rea required for Code offenses. § 2.02(3). The Code also recognizes two higher standards of culpability; they are, in ascending order, "knowledge" and "purpose."
71. See § 2.02(2)(a)-(b).
72. Staples v. United States, 511 U.S. 600, 619 (1994).
73. Liparota v. United States, 471 U.S. 419, 433 (1985).
74. Ratzlaf v. United States, 510 U.S. 135, 149 (1994).
75. 513 U.S. 64 (1994).
76. Id. at 68.
77. Id. at 69-73.
78. Arguably, even a less demanding mens rea would have established minimal culpability. The argument would be that the knowing possession of any pornographic material, whether or not it involves minors, is morally culpable. Even assuming mat pornography can be treated as inevitably nefarious in our prurient culture, the First Amendment complicates matters. In terms of precedent, adult pornography constitutes protected speech, provided it is not so vulgar as to be considered "obscene" under Miller v. California, 413 U.S. 15 (1973). See generally X'Citement Video, 513 U.S. at 72. The First Amendment itself would seem to require mens rea for the underage status of a performer in pornographic material to avoid a "chilling effect" on the production and distribution of constitutionally protected adult pornography. Indeed, the dissenters in X-Citement Video voted to invalidate the child pornography statute on this basis. See Id. at 85-86 (Scalia, J., dissenting). In light of the First Amendment, the possession and distribution of non-obscene pornography involving adults is "constitutionally innocent"- "innocent" not because it is morally licit, but rather because it is constitutionally protected - and thus cannot be treated as blameworthy by the criminal law. See generally Alan C. Michaels, Constitutional Innocence, 112 HARV. L. REV. 828 (1999) (arguing that strict liability is unconstitutional when the crime, minus the strict-liability element, constitutes constitutionally protected activity). Some culpability, therefore, was necessary concerning the age of the performers.
79. X-Citement Video, 513 U.S. at 78. The Court ruled that actual knowledge was required "both" as to "the sexually explicit nature of the material and⋯ the age of the performers."
80. Id.
81. Id. at 73 (emphasis added).
82. As Professor Alan Michaels has explained, with particular reference to X-Citemeni Video, "[t]he principle of constitutional innocence⋯ means that strict liability may not be imposed with regard to the use of minors in the production of [pornographic] materials." Michaels, supra note 47, at 890.
83. In New York v. Ferber, the Court was unequivocal as to the serious "physiological, emotional, and mental" harms that children used to produce child pornography suffer. 458 U.S. 747, 758 (1982). Not only are children sexually exploited in the very creation of child pornography, but the resulting images create a permanent record of their exploitation which can surface at any time, causing the victims great anxiety and emotional distress. See Id. at 756-59. Because protecting children against sexual exploitation is "of surpassing importance,"
84. Id. at 757, the Court ruled that legislatures can "dry up the market for this material by imposing severe criminal penalties [for the creation and possession of child pornography]."
85. Id. at 760.
86. For example, possession of an obscene visual depiction on federal property carries a maximum prison term of two years, see 18 U.S.C. § 1460(a) (2006), and engaging in the business of distributing obscene matter is punishable by no more than five years, see § 1466(a). By comparison, the basic penalty for possession or distribution of child pornography is five to twenty years in prison.
87. See 18 U.S.C. §§ 1466A(a), 2252A(bXl) (2006).
88. Staples v. United States, 511 U.S. 600, 618 (1994) (quoting Morissette v. United States, 342 U.S. 246 (1952)).
89. See 7 U.S.C. § 2024(b)(1) (2006) (Liparota);
90. 31 U.S.C. § 5322(a) (2006) (Ratzlaf).
91. 26 U.S.C. §§ 5861(d), 5871 (2006).
92. 18 U.S.C. §§ 1466A(a), 2252A(b)(1). The penalty range for convicted sex offenders is much higher still: fifteen to forty years. See Id. For constitutional law purposes, criminal statutes carrying far less severe punishments are treated as serious crimes. The right to jury trial and the right to counsel are examples. The right to trial by jury attaches to any crime for which more than six months incarceration is authorized; only crimes punishable by less than six months can be treated as "petty offenses" as to which there is no constitutional right to jury trial.
93. See Blanton v. City of N. Las Vegas, 489 U.S. 538, 543-44 (1989) (holding that "petty crimes" are not subject to the Sixth Amendment jury trial provision). Indigents have an automatic right to appointed counsel in any felony prosecution, regardless of the penalty the defendant may receive.
94. See Nichols v. United States, 511 U.S. 738, 743 n.9 (1994) (noting that the Constitution requires indigent defendants to be offered appointed counsel in felony cases). Indeed, even for misdemeanors, the possibility of being sentenced to even a day in jail makes a criminal case important enough to entitle indigent defendants to appointed counsel. See, e.g., Alabama v. Shelton, 535 U.S. 654, 662 (2002) (arguing that an uncounseled conviction, once a prison sentence is triggered, is violative of the Sixth Amendment);
95. Argersinger v. Hamlin, 407 U.S. 25, 40 (1972) (holding that if a misdemeanor ends with a deprivation of liberty, the accused should have "the guiding hand of counsel").
96. Morissette, 342 U.S. at 255. Consistent with this reasoning, the Staples Court adopted an interpretive presumption against treating felonies as public-welfare offenses.
97. See Staples v. United States, 511 U.S. 600, 618-19 (1994).
98. See generally Michaels, supra note 47, at 831 (noting that "[s]trict liability has endured decades of unremitting academic condemnation").
99. Cf. United States v. Dotterweich, 320 U.S. 277,280-81 (1943) (noting that public-welfare offenses differ from traditional crimes in that their "penalties serve as [an] effective means of regulation").
100. This is not to suggest that there is no conceptual upper limit on the level of mental culpability that courts can require as a precondition to punishment. Innocence-protection, as we have seen, is fundamentally about two things: avoiding punishment for blameworthy acts and limiting punishment for blameworthy acts in proportion to their moral culpability. So understood, there is no warrant for courts to require culpability greater than necessary to ensure blameworthiness and proportionality of punishment. See, e.g., Bryan v. United States, 524 U.S. 184 (1998) (adopting a less stringent interpretation of "willful violation" because the more stringent interpretation favored by the defendant would have hampered law enforcement without any innocence-protection payoff). Thus, once culpability and proportionality have been guaranteed, the proper demands of innocence-protection are at an end.
101. 504 U.S. 255 (1992).
102. Id. at 257.
103. See 18 U.S.C. § 201 (2006).
104. Evans, 504U.S.at257;
105. see 18U.S.C. § 1951 (2006).
106. The Supreme Court has explained: The distinguishing feature of each crime is its intent element. Bribery requires "intent to influence" or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given, or accepted "for or because of an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may have already determined to take), or for a past act that he has already taken. United States v. Sun-Diamond Growers, 526 U.S. 398,404-05 (1999) (quoting 18 U.S.C. § 201).
107. Compare 18 U.S.C. § 201(b) (bribery) with 18 U.S.C. § 201(c) (gratuity).
108. Evans, 504 U.S.at 268.
109. Perhaps only barely so. As Sun-Diamond Growers noted, the mens rea requirement for gratuities offenses does not prevent prosecution for acceptance of tokens of appreciation that are so trivial as to carry no possibility of corruption.
110. See 526 U.S. at 411-12.
111. Ewing v. California, 538 U.S. 11, 23 (2003).
112. See generally Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 892-93 (2005).
113. See generally, e.g., KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THEFEDERAL COURTS (1998);
114. Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. Cm. L. REV. 901 (1991).
115. 543 U.S. 220 (2005). Booker invalidated the binding federal sentencing guidelines as violative of the Sixth Amendment right to jury trial. The guidelines were invalid because they allowed judicial factfinding to increase sentences above the guidelines range authorized by jury verdicts of guilty. The Court cured the Sixth Amendment infirmity by declaring the guidelines "effectively advisory" only.
116. Id. at 245. This meant that, as before the advent of the guidelines, guilty verdicts expose defendants to any punishment up to the statutory maximum and district judges are entitled to engage in the factfinding necessary to select appropriate sentences.
117. Paul G. Cassell, Too Severe? A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums), 56 STAN. L. REV. 1017, 1045 (2004).
118. There are more than one hundred statutes in the federal code that impose mandatory minimum sentences, and those statutes applied in "nearly 60,000 cases" decided between 1984 and 1991.
119. See UNITED STATESSENTENCING COMM'N, REPORT ON MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM11-12 (1991).
120. Professor Kate Stith explains: There are still powerful forces arrayed against the exercise of sentencing discretion by district judges responsive to local concerns, the particular facts of the case at hand, and the advocacy of the parties. As a formal matter, courts of appeals may still second-guess judges whose sentences are found to be an "unreasonable" application of the broad statutory sentencing criteria that are the lodestar of sentencing law after Booker⋯. Most importantly, the Guidelines remain the starting point for all sentences, with an anchoring effect made all the more powerful by [the Supreme Court's] go-ahead to the courts of appeals to treat Guidelines sentences as presumptively reasonable. The Guidelines are now the frame, in both law and practice, in which sentences are viewed. Kate Stith, The Arc of the Penduluum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE LJ. 1420, 1496 (2008) (footnotes omitted).
121. U.S. SENTENCINGCOMM'N, PRELIMINARY QUARTERLY DATA REPORT, 3RD QUARTER RELEASE tbl. 1 (2007), available at http://www.ussc.gov/sc- cases/Quarter-Report-3rd-07.pdf. Overall, almost two-thirds (61.2%) of defendants sentenced after Booker received sentences within the guidelines range, and most of the sentences below the guidelines range were sought by the prosecution as a reward for assistance by the defendant in pursuing other offenders.
122. Id.
123. A familiar historical example involves the Mann Act, otherwise known as the "White Slave Traffic Act," Pub. L. No. 61-277, § 2, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. § 2421 (2006)). The Act made it a crime to transport a female in interstate commerce for purposes of "prostitution or debauchery, or for any other immoral purpose."
124. Id. The catch-all phrase ("any other immoral purpose") could be read narrowly (as, say, limited to commercialized vice) or broadly (as reaching sex outside of marriage and any other sex deemed immoral). This interpretive choice, which was presented in Caminetti v. United States, 242 U.S. 470 (1917), had dramatic implications for the punishment available for extramarital sex in federal court. The Mann Act's five-year maximum was harsher than the punishments available in most states at the time for adultery and fornication and, oddly enough, under the congressional statutes that specifically prohibited adultery and fornication on federal lands. See generally Smith, supra note 70, at 897-903 (discussing the proportionality implications of Caminetti). A narrow interpretation of the catch-all phrase that excluded extramarital sex from the Mann Act would thus have prevented disproportionate punishment for that conduct.
125. See generally Smith, supra note 70, at 893-930. Caminetti is a prime example. The Court construed a statute aimed at "white slavery" broadly as encompassing the transportation of willing females across state lines for extramarital sex. 242 U.S. at 484-86. The Court's desire to allow prosecutors to reach culpable conduct evidently blinded it to the fact that its interpretation significantly increased the penalty for adultery and fornication.
126. Indeed, it is possible to think of avoiding punishment for blameless acts as simply an application of the broader principle that punishment must be proportional to the blameworthiness of the offense committed. Where the defendant's conduct is blameless, the only proportional punishment is zero.
127. See supra Part n.A.
128. Compare, e.g., MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 91 (1997) ("Retributivism is a very straightforward theory of punishment: We are justified in punishing because and only because offenders deserve it. Moral responsibility ('desert') in such a view is not only necessary for justified punishment, it is also sufficient") with 1 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in THE WORKS OF JEREMY BENTHAM 83 (John Bowring ed., 1962) ("All punishment being in itself evil, upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil."). H.L.A. Hart stated the utilitarian credo with characteristic pithiness: the law "punish[es] men not as wicked but as nuisances." H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 181 (1968).
129. HERBERT L. PACKER, THE-LIMITS OF THE CRIMINAL SANCTION 66-67 (1968).
130. Id. Packer was far from alone in this regard. As no less an authority than Oliver Wendell Holmes, Jr. declared, "a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear." HOLMES, supra note 33, at SO. Similarly, Hart agreed mat the law should heed "principles of justice" calling for reduced punishment in particular situations. HART, supra note 81, at 24. Han also contended that the "guiding principle," bom for legislatures in defining crimes and judges in sentencing defendants, should be "proportion," meaning "very broad judgments bom of the relative moral iniquity and harmfulness of different types of offence."
131. Id. at 25.
132. Professors Paul Robinson and John Darley nicely explain the utility of limiting punishment in accordance with moral blameworthiness.
133. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453 (1997). In their view, "every deviation from a desert distribution can incrementally undercut the criminal law's moral credibility, which in turn can undercut its ability to help in the creation and internalization of [social] norms and its power to gain compliance by its moral authority."
134. Id at 478;
135. see generally TOM R. TYLER, WHYPEOPLE OBEY THE LAW 178 (1990) (reporting results of study finding that people "obey[] the law if it is legitimate and moral"). Robinson and Darley conclude that, to have moral credibility in the eyes of the public, the criminal law "ought to adopt rules that distribute liability and punishment according to desert, even if a non-desert distribution appears in the short run to offer the possibility of reducing crime." Robinson & Darley, supra, at 477-78.
136. Justice Antonin Scalia leveled this sort of objection against constitutional proportionality analysis in Harmelin v. Michigan: The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate-and to say that it is not. For that real-world enterprise, the standards seem so inadequate that the pn-portionality principle becomes an invitation to imposition of subjective values. 501. U.S. 957, 986 (1991) (plurality opinion).
137. As a leading account of sentencing reform notes, apart from the era of binding sentencing guidelines, "[i]n exercising the wide sentencing discretion assigned by Congress, a federal judge's task has been to allocate punishment fairly for each crime and each criminal who comes before the court"-a determination made according to the "idea of proportionality in sentencing." STITH & CABRANES, supra note 73, at 14. Even during the nation's now-ended experiment with binding federal sentencing guidelines, proportionate sentencing was still the goal; what changed was the means by which the goal was to be achieved. The binding guidelines replaced wide judicial discretion with precise guidelines telling judges precisely what factors are relevant to sentencing and the precise weight to give to those factors. See generally Id. at 78-103 (contrasting pre- and post-guidelines sentencing).
138. See Smith, supra note 70, at 891. In making proportionality determinations for these constitutional purposes, courts are properly guided by objective indicia of how the authorized punishment compares with the crime of conviction. Two of the most pertinent indicia in this regard are the penalties authorized for other crimes in the same jurisdiction and for the same crime in other jurisdictions. See, e.g., Solem v. Helm, 463 U.S. 277, 292 (1984) (describing criteria that should guide a court's proportionality analysis).
139. Congress quickly exercised its prerogative in this regard in the wake of Ratzlaf v. United States, 510 U.S-135 (1994). At the urging of the Justice Department, Congress enacted a new crime punishing " structuring" cash transactions worth $10,000 or more into smaller transactions in order to avoid federal currency transaction reporting requirements. The new law omitted the original crime's "willfulness" requirement, which Ratzlaf had interpreted as making ignorance of the law a defense.
140. See Money Laundering Suppression Act of 1994, Pub. L. No. 103-325, 108 StaL 2160 (codified at 31 U.S.C. § 5324(d) (2006)). As the rapid demise of Ratzlaf shows, Congress is willing and able to override heightened mens rea requirements when it thinks the courts have undermined an important law-enforcement tool.
141. See generally Staples v. United States, 511 U.S. 600, 605 (1994) (stating that "we have long recognized that determining the mental state required for commission of a federal crime requires 'construction of the statute'" (quoting United States v. Balint, 258 U.S. 250, 253 (1922))).
142. 342 U.S. 246 (1956).
143. 471 U.S. 419 (1985).
144. Wiley, supra note 3, at 1046. Although they have disagreed over the application of mens rea doctrine in particular cases, the Justices agree that heightened mens rea requirements can and should be used to avoid the possibility of conviction for morally blameless conduct This approach to mens rea selection has commanded support from such polar opposites as Justices Stevens and Ginsburg and Chief Justice Rehnquist and Justice Thomas, all of whom have authored major opinions adjusting mens rea requirements in light of culpability concerns.
145. See Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (Rehnquist, C.J.);
146. Bryan v. United States, 524 U.S. 184 (1998) (Stevens, J.);
147. Ratzlaf, 510 U.S. at 144 (Ginsburg, J.);
148. Staples, 511 U.S. at 605 (Thomas, J.).
149. See sources cited supra note 3. For an extensive argument that the culpability-based approach to mens rea accords with the proper judicial role, see Wiley, supra note 3, at 1068-78.
150. As one supporter has explained, the culpability approach to mens rea selection necessarily rests on courts' "internal moral intuitions": "The question of whether conduct is 'apparently innocent' usually cannot be answered by direct reference to congressional sources because the meaning of the legislative authority-the statute and its history-is the very issue for decision." Wiley, supra note 3, at 1071.
151. See, e.g., Wayte v. United States, 470 U.S. 598, 607-08 (1985) (listing factors that prosecutors consider when determining whether to prosecute).
152. See, e.g., Paula L. Hannaford-Agor & Valerie P. Hans, Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries, 78 CHI.-KENT L. REV. 1249, 1276 (2003) (reporting results of study finding that "juror concerns about legal fairness and outcome fairness are present to a measurable extent in hung and acquittal juries").
153. The main constitutional limits on bad-faith charging decisions are the Equal Protection and Due Process Clauses. Equal protection forbids "selective prosecution," which occurs when prosecutors charge suspects based on race or other suspect classifications. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (clarifying the elements required to establish selective prosecution based on race). Due process prohibits prosecutors from making arbitrary or vindictive charging decisions, the latter being charging decisions intended to punish suspects for exercising constitutional or statutory rights. See, e.g., Wayte, 470 U.S. at 608 (rejecting vindictiveness claim by vocal pacifist who refused to register for the Selective Service).
154. The recent mens rea cases illustrate the point. Although the Supreme Court feared that innocent defendants could be convicted absent heightened mens rea requirements, those fears were not based on real-world prosecutions. Rather, the Court resorted to imaginative hypotheticals to demonstrate that blameless defendants could be convicted. See generally Wiley, supra note 3, at 1044-46 (explaining that the examples of "innocence" cited in the mens rea cases were "all about outermost applications and not about usual or actual cases"). The, exclusive reliance on hypothetical cases of innocence suggests that, in each of the real-world prosecutions that faced the Court, the prosecution had successfully identified morally blameworthy suspects.
155. In one commentator's view, the mens rea cases suggest that the Supreme Court views prosecutors "as threats to, rather than bulwarks of, justice." Wiley, supra note 3, at 1043. This view, however, is mistaken. Even though the Supreme Court has insisted that federal crimes be defined when possible in terms that prevent conviction for morally blameless conduct, current mens rea doctrine in no way questions the professionalism and integrity of federal prosecutors. The point of the recent mens rea cases is not that prosecutors cannot be trusted to be fair (or, worse still, that prosecutors can be trusted to be unfair). It is, rather, that judicially enforceable safeguards against conviction for morally blameless conduct have an important role to play, along with prosecutorial discretion, in ensuring the just disposition of criminal cases.
156. As former U.S. Attorney Harry Litman has written: Many decisions to prosecute federally are based not on the facts of the charged offense but rather on other conduct or characteristics of the defendant. Call it the "Al Capone approach to federal prosecution" after its most celebrated instance, the 1932 prosecution on federal tax evasion charges of the colorful Chicago mobster who had long evaded prison for his notorious crimes. Harry Litman, Pretextual Prosecution, 92 GEO. L.J. 1135, 1135 (2004). For an interesting argument that pretextual prosecutions are particularly prevalent at the federal level, see Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 599-618 (2005).
157. The classic exposition of these points is Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117 (1998). These missing procedural safeguards include adversarial presentation of evidence and cross-examination, evidentiary rules barring the use of unreliable or unfairly prejudicial evidence, and the requirement that all reasonable doubts be resolved in the suspect's favor.
158. Id. at 2127-28.
159. Ratzlaf v. United States, 510 U.S. 135, 144 (1994).
160. With "enterprise" crimes, such as RICO, proof of other crimes by the defendant and his associates is essential in order to establish liability.
161. See 18 U.S.C. § 1962 (2006) (making the commission of a "pattern of racketeering activity" a necessary element of a RICO charge).
162. See generally Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 674 (1997) (describing aspects of federal sentencing that make federal prosecution less favorable to defendants than state prosecution). According to another commentator, federal drug offenses often result in sentences that are "ten or even twenty times higher" than the sentences that would be imposed in state court for the same conduct. Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS LJ. 979,998-99 (1995). Even advocates of tough criminal sentences have criticized mandatory minimum sentences. See, e.g., Cassell, supra note 73.
163. Stith, supra note 75, at 1449.
164. See Memorandum from Att'y Gen. John Ashcroft to All Federal Prosecutors, Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing 2 (Sept. 22, 2003) [hereinafter Aschcroft Memorandum], available at http://www.usdoj.gov/opa/pr/2003/September/03- ag-516.htm. This Memorandum declares it to be "the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case."
165. Id. The "most serious offense or offenses," the Memorandum continues, "are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence."
166. Id. The mandate that federal prosecutors actively pursue the highest available sentence is not just the policy of the George W. Bush administration; it was a "central requirement" of the two preceding administrations as well.
167. See Stith, supra note 75, at 1469 (citing earlier departmental memoranda).
168. Efforts have long been underway in the Justice Department to centralize control over enforcement decisions made by prosecutors in the field, with the Bush administration's firing of several U.S. Attorneys being but the latest (and most controversial) example. See generally Daniel Richman, Federal Sentencing in 2007: The Supreme Court Holds-The Center Doesn't, 117 YALE LJ. 1374, 1378-85 (2008) (discussing efforts of recent administrations to exert greater control over field-level enforcement decisions). To be fair, Professor Richman doubts the long-term efficacy, as well as the wisdom, of such efforts to reverse the decentralization of federal enforcement decisionmaking. See Id. at 1403-11.
169. Ashcroft Memorandum, supra note 106, at 3.
170. Under the "Comey Memorandum," prosecutors "must actively seek sentences within the range established by the Sentencing Commission in all but extraordinary cases⋯ involving circumstances that were not contemplated by the Sentencing Commission." Memorandum from Deputy Att'y Gen. James B. Comey to All Federal Prosecutors 2 (Ian. 28,2005) [hereinafter Comey Memorandum], available at http://www.usdoj.gov/usao/iln/osc/ documents/ag-memo-august-12-2005.pdf. The Memorandum further instructs that in any case in which the sentence imposed is below what the United States believes is the appropriate Sentencing Guidelines range (except uncontested departures pursuant to the Guidelines, with supervisory approval), federal prosecutors must oppose the sentence and ensure the record is sufficiently developed to place the United States in the best position possible on appeal.
171. Id.
172. Stith, supra note 75, at 1484 (emphasis added). The statutory purposes referred to in the text can be summarized as retribution, deterrence, incapacitation, and rehabilitation.
173. See 18 U.S.C. § 3553(a)(2) (2006).