Reconsidering the mistake of law defense

Journal of Criminal Law and Criminology

Volumn 102, Issue 3, 2012, Pages 725-784

  Meese, Edwin ^a   Larkin, Paul J ^a  

^a Heritage Foundation   (United States)

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EID: 84872069844     PISSN: 00914169     EISSN: None     Source Type: Journal    
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References (382)

1. The civil law, too. For example, every consumer has heard (often to his chagrin) the maxim "Caveat emptor" or "Let the buyer beware." See Barnard v. Kellogg, 77 U.S. (10 Wall.) 383, 389 (1870).
2. Jerome Hall, Nulla Poena Sine Lege, 47 YALE L.J. 165, 165, 178 (1937).
3. WILLIAM BLACKSTONE, COMMENTARIES*358; Morissette v. United States, 342 U.S. 246, 251 (1952). For Latin buffs, the phrase is "Actus non facit reum nisi mens sit rea.".
4. Kevin Jon Heller, The Cognitive Psychology of Mens Rea, 99 J. CRIM. L. & CRIMINOLOGY 317, 317 (2009).
5. See Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); Estelle v. Williams, 425 U.S. 501, 503 (1976); Coffin v. United States, 156 U.S. 432, 453-61 (1895); MCCORMICK ON EVIDENCE § 342 (2d ed. 1972).
6. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 361-62 (1970).
7. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 37 (1968). Talionic law sought to moderate punishment, not encourage retribution. THE OXFORD HISTORY OF THE PRISON, at x (Norval Morris & David J. Rothman eds., 1995).
8. Genesis 18:23-32 (relating how God agrees to spare Sodom if ten righteous men can be found there).
9. Coffin, 156 at 456 ("[I]t is better that ten guilty persons escape than one innocent suffer."); 4 WILLIAM BLACKSTONE, COMMENTARIES *352.
10. Alexander Volokh, Guilty Men, 146 U. PA. L. REV. 173, 174 (1997).
11. Benjamin Franklin put the number at 100. Id. at 175.
12. Jerome Hall, Ignorance and Mistake in Criminal Law, 33 IND. L.J. 1, 15-16 (1957).
13. Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 HARV. L. REV. 75, 80 (1908)
14. Ronald A. Cass, Ignorance of the Law: A Maxim Reexamined, 17 WM. & MARY L. REV. 671, 685 (1976).
15. Roman law, however, distinguished between "ignorance as a defense to actions under the jus gentium, the law derived from the common customs of the Italian tribes and thought to embody the basic rules of conduct any civilized person would deduce from proper reasoning," to which a mistake of law defense could not be raised, and "the more compendious and less common-sense jus civile," as to which "women, males less than 25 years old, soldiers, peasants, and persons of small intelligence" could raise a mistake defense if he or she "had not had the opportunity to consult counsel familiar with the laws." Id. (footnotes omitted).
16. John Austin, LECTURES ON JURISPRUDENCE 480-481 (5th ed. 1885).
17. 4 WILLIAM BLACKSTONE, COMMENTARIES*26; M. HALE, PLEAS OF THE CROWN 42 (1680); JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 27-69 (2d ed. 1947); 3 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 374 (1966); OLIVER WENDELL HOLMES, JR., THE COMMON LAW 45-46 (Belknap Press, 2009) (1881); COURTNEY STANHOPE KENNY, OUTLINES OF CRIMINAL LAW 68-69 (13th ed. 1929); WAYNE R. LAFAVE, CRIMINAL LAW § 5.6, (5th ed. 2010); JOHN SALMOND, JURISPRUDENCE 426 (8th ed. 1930); 2 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 94-95 (1883); GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART §§ 52-74 (2d ed. 1961); Cass, supra note 10, at 685; Hall, supra note 9.
18. Rollin M. Perkins, Ignorance and Mistake in Criminal Law, 88 U. PA. L. REV. 35 (1939).
19. The rule has been traced back to the thirteenth century.
20. Keedy, supra note 9, at 78.
21. Schuster v. State, 48 Ala. 199, 202-03 (1872); State v. Paup, 13 Ark. 129, 137-38 (1852); People v. O'Brien, 31 P. 45, 47-48 (Cal. 1892); Fraser v. State, 37 S.E. 114, 116 (Ga. 1900); People v. Cohn, 193 N.E. 150, 153 (Ill. 1934); Winehart v. State, 6 Ind. 30 (1854); State v. O'Neil, 126 N.W. 454, 456 (Iowa 1910); Jellico Coal Min. Co. v. Commonwealth, 29 S.W. 26, 26-27 (Ky. 1895); State v. Goodenow, 65 Me. 30, 33 (1876); Grumbine v. State, 60 Md. 355, 356 (1883); Commonwealth v. Everson, 2 N.E. 839, 840 (Mass. 1885); Black v. Ward, 27 Mich. 191, 201 (1873); State v. Armington, 25 Minn. 29, 38 (1878); Whitton v. State, 37 Miss. 379, 382 (1859); State v. Wilforth, 74 Mo. 528, 529 (1881); Pisar v. State, 76 N.W. 869, 870 (Neb. 1898); State v. Carver, 39 A. 973, 974 (N.H. 1898); State v. Halsted, 39 N.J.L. 402, 412-13 (1877); Gardner v. People, 62 N.Y. 299, 304 (1875); State v. Boyett, 32 N.C. (10 Ired. Eq.) 336, 343 (1849); State v. Pyle, 71 N.W.2d 342, 346 (N.D. 1955); Ulsamer v. State, 11 Ohio Dec. Reprint 889 (Ohio C.C. 1893); Needham v. State, 32 P.2d 92, 93 (Okla. Crim. App. 1934); State v. Foster, 46 A. 833, 835 (R.I. 1900); State v. S. D. Packing & Shipping Co., 180 N.W. 510, 511 (S.D. 1920); McGuire v. State, 26 Tenn. (7 Hum.) 54, 55-56 (1846); Medrano v. State, 22 S.W. 684 (Tex. Crim. App. 1893); State v. Woods, 179 A. 1, 2 (Vt. 1935). Some states now have codified the rule. See, e.g., People v. Mann, 646 P.2d 352, 356 (Colo. 1982) (discussing state statute).
22. N.Y. Cent. & H.R.R. Co. v. United States, 239 F. 130, 131 (2d Cir. 1917); Chadwick v. United States, 141 F. 225, 243 (6th Cir. 1905); Blumenthal v. United States, 88 F.2d 522, 530 (8th Cir. 1937); Fall v. United States, 209 F. 547, 552 (8th Cir. 1913); Townsend v. United States, 95 F.2d 352, 358 (D.C. Cir. 1938); United States v. Anthony, 24 F. Cas. 829, 831-32 (C.N.D.N.Y. 1873). For some possible exceptions to this rule, see Barker v. United States, 546 F.2d 940, 946-54 (D.C. Cir. 1976) (Wilkey, J., concurring) (reliance upon official authority); id. at 954-57 (Merhige, J., concurring) (reliance upon an official interpretation of the law).
23. Bryan v. United States, 524 U.S. 184, 193 (1998); Cheek v. United States, 498 U.S. 192, 199 (1991); Hamling v. United States, 418 U.S. 87, 119-24 (1974); United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971); Lambert v. California, 355 U.S. 225, 228 (1957); Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49 (1912); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910); Armour Packing Co. v. United States, 209 U.S. 56, 85 (1907); Reynolds v. United States, 98 U.S. 145, 167 (1878) ("Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law."); Barlow v. United States, 32 U.S. (7 Pet.) 404, 411 (1833) ("It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally."); The Joseph, 12 U.S. (8 Cranch) 451 (1814).
24. JOEL PRENTISS BISHOP, COMMENTARIES ON CRIMINAL LAW §§ 294-300 (5th ed. 1872); 1 FRANCIS WHARTON, A TREATISE ON CRIMINAL LAW § 399 (11th ed. 1912).
25. A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.
26. Holmes, supra note 11, at 5.
27. A value that the legislature may not erase. In Dickerson v. United States, 530 U.S. 428, 432 (2000), the Supreme Court turned aside the claim that Congress had repealed Miranda v. Arizona, 384 U.S. 436 (1966), in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified in scattered sections of U.S.C. (2006)).
28. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 234-35 (1995) ("[I]n our system of adjudication, principles seldom can be settled 'on the basis of one or two cases, but require a closer working out.'" (quoting Roscoe Pound, Survey of the Conference Problems, 14 U. CIN. L. REV. 324, 339 (1940))).
29. Paul Oskar Kristeller, "Creativity" and "Tradition," 44 J. HIST. IDEAS 105, 112 (1983)
30. "We should realize from the beginning that a completely stable or rigid tradition that never admits change is humanly impossible and has never existed.".
31. The Supreme Court has noted that it has limited authority to create federal common law, but, where it enjoys that sanction, the Court has greater freedom to shape the development of federal common law than to change its interpretation of federal statutes. That authority generally is confined to subjects such as the reach of federal sovereign immunity, the obligations of the federal government, and interstate disputes over (for instance) geographic boundaries and water rights. See, e.g., Nw. Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 86-88, 95-98 (1981).
32. Jacobson v. United States, 503 U.S. 540, 548-49 (1992) (entrapment defense); United States v. Bailey, 444 U.S. 394, 409-15 (1980) (duress or necessity defense); United States v. Penn. Indus. Chem. Corp., 411 U.S. 655, 673-75 (1973) (defense of reliance on opinions of government officials interpreting a federal law within their jurisdiction); Sinclair v. United States, 279 U.S. 263, 299 (1929) (reliance on advice of private counsel); Brown v. United States, 256 U.S. 335, 343-44 (1921) (self-defense); Rowe v. United States, 164 U.S. 546, 555-58 (1896) (self-defense); Beard v. United States, 158 U.S. 550, 555-56 (1895) (self-defense); Davis v. United States, 160 U.S. 469, 476-77 (1895) (insanity defense). See generally LAFAVE, supra note 11, §§ 7.1-7.5, 9.1-9.8, 10.1-10.7 (discussing defenses). By contrast, federal courts do not have authority to create common law crimes. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812).
33. The federal antitrust laws are a good example, because the Court has felt free over time to develop a federal common law of competition that is sufficiently flexible to adapt to new business arrangements and developments in microeconomics. See, e.g., Leegin Creative Leather Prods. v. PSKS, 551 U.S. 877, 899-900 (2007); State Oil Co., v. Khan, 522 U.S. 3, 10-15 (1997); Cont'l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47-59 (1977).
34. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007), the Supreme Court decided to "retire," rather than overrule, the pleading standard previously articulated in Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The term is apt here as well.
35. Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
36. "Hue" derives from the French word huer, meaning "to shout," and cry is used in the same sense. "The person discovering a felony would raise a cry of'Out! Out!' Prompting the neighbors to turn out with their bows, arrows, and knives. The'hue' would be passed by horn-blowing from town to town until the ad hoc posse caught the malefactor or gave up the chase.".
37. Jon C. Blue, High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment, 101 YALE L.J. 1475, 1479-1484 & 1480 n.21 (1992).
38. Lawrence M. Friedman, Crime And Punishment In American History 24-27, 67-71 (1993) (discussing common law practices in the courts and by sheriffs and citizens).
39. William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, in Victims In Criminal Procedure 5-6, 11-12 (3d ed. 2010); FRIEDMAN, supra note 24, at 28.
40. William J. Stuntz, The Collapse Of American Criminal Justice 65 (2011).
41. Blue, supra note 24, at 1484.
42. FRIEDMAN, supra note 24, at 67-71, 149-155, 358-360.
43. In America, probation and parole were born in the late nineteenth and early twentieth centuries. E.g., Parole Act, ch. 387, 36 Stat. 819 (1910); Probation Act, ch. 521, 43 Stat. 1259 (1925); see, e.g., United States v. Murray, 275 U.S. 347, 353-58 (1928); Ex parte United States, 242 U.S. 27, 42-52 (1916); Cosgrove v. Smith, 697 F.2d 1125, 1135-37 (D.C. Cir. 1983) (Bork, J., concurring in part and dissenting in part); FRIEDMAN, supra note 24, at 161-63, 406-09; JOAN PETERSILIA, COMMUNITY CORRECTIONS 9-10 (1998).
44. Mark A.R. Kleiman, When Brute Force Fails 40-41, 161-163 (2009) (discussing purpose of drug courts).
45. FRIEDMAN, supra note 24, at 24-25, 67, 163-66, 239-50 (discussing courts from common law days through the twentieth century).
46. David J. Rothman, The Discovery Of The Asylum 52-53 (rev. ed. 1990).
47. Lawrence M. Friedman, A History Of American Law 219-20 (3d Ed. 2005); Rothman, supra note 31, at 79-108. Jails housed defendants awaiting trial or execution, the dangerously mentally ill, misdemeanants, petty offenders, and debtors. ROTHMAN, supra note 31, at xxvii-xxviii, 52-53. Prisons have existed as restraints on freedom as early as ancient Egypt and Greece, Edward M. Peters, Prison Before the Prison: The Ancient and Medieval Worlds, in THE OXFORD HISTORY OF THE PRISON, supra note 6, at 5-21, but the belief that incarceration could be used to reform an inmate via "penance" did not occur until the early nineteenth century in America, ROTHMAN, supra note 31, at xxiv, 79-108.
48. Judges created common law trial procedures. The trial process was both more informal in some respects and more rigid in others than the trials seen today.
49. Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867 (1994).
50. John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View From the Ryder Sources, 50 U. CHI. L. REV. 1 (1983).
51. John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. CHI. L. REV. 263 (1978).
52. For a concise discussion of English common law criminal procedure.
53. Theodore F.T. Plucknett, A CONCISE HISTORY OF THE COMMON LAW 424-441 (5th ed. 1956).
54. For a concise discussion of American criminal procedure from the colonial period through the nineteenth century, see FRIEDMAN, supra note 24, at 20-27, 235-58, 383-418.
55. At common law, a victim had to pursue a prosecution, because there was no office of public prosecutor. State and federal governments later established such an office, FRIEDMAN, supra note 24, at 21, 29-30, and it is the standard practice everywhere today. Similarly, at common law, a defendant charged with a felony was not entitled to be represented by counsel (although, ironically, a defendant charged with a misdemeanor was). See Powell v. Alabama, 287 U.S. 45, 60 (1932); FRIEDMAN, supra note 24, at 27. By contrast, today a defendant cannot be sentenced to a term of imprisonment without first being afforded the right to obtain counsel or to have counsel appointed if he is indigent. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). A defendant's right to counsel comes into play at pretrial proceedings, at trial, at sentencing, and at his first appeal of right. See, e.g., Mempa v. Rhay, 389 U.S. 128, 135-37 (1967) (sentencing); White v. Maryland, 373 U.S. 59, 60 (1963) (preliminary hearing); Douglas v. California, 372 U.S. 353, 355-58 (1963) (first appeal of right); Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (trial); Hamilton v. Alabama, 368 U.S. 52, 53-55 (1961) (arraignment).
56. For example, at common law a defendant could offer an unsworn statement on his own behalf but could not testify in his defense because he was deemed an "incompetent" witness due to his interest in the outcome. See 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW §§ 576-79 (2d ed. 1923). Today, a defendant has a constitutional right to testify in his defense. See Rock v. Arkansas, 483 U.S. 44 (1987); Ferguson v. Georgia, 365 U.S. 570 (1961).
57. The Old Bailey was the trial court for felonies and other serious crimes in London and adjacent Middlesex County in the seventeenth and eighteenth centuries. Langbein, supra note 33, at 3.
58. The common law in England and in the early days in the United States offered scant opportunity for a defendant to obtain a new trial. See Herrera v. Collins, 506 U.S. 390, 408-10 (1993); FRIEDMAN, supra note 24, at 255-58. The Judiciary Act of 1789, ch. 20, 1 Stat. 73, did not establish a right to appeal a conviction in a federal criminal case. Congress did not create a right to appeal in capital cases until 1889, Act of Feb. 6, 1889, ch. 113, § 6, 25 Stat. 655, 656, and did not extend that right to all convicted defendants until 1891, The Circuit Courts of Appeals (Evarts) Act, ch. 517, § 5, 26 Stat. 826, 827 (1891). Shortly thereafter, the Supreme Court held that defendants have no constitutional right to an appeal, McKane v. Durston, 153 U.S. 684, 688 (1894), thereby making clear that appellate rights were up to the legislatures to define. As for postconviction avenues, The Judiciary Act of 1789 extended the right to petition for a writ of habeas corpus to parties held in federal custody, but Congress did not grant parties in state custody that opportunity until the Habeas Corpus Act of 1867, ch. 27, 14 Stat. 385. Today, federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of U.S.C. (2006)). Finally, while the Constitution vests the clemency power in the President, U.S. Const. art. II, § 2, cl. 1, it does not require the states to have a clemency process, Herrera, 506 U.S. at 414.
59. Terry v. Ohio, 392 U.S. 1, 19 (1968) (finding that the government's brief detention for questioning of a person is a "seizure" under the Fourth Amendment and a "pat down" of his clothing for weapons is a "search"); Katz v. United States, 389 U.S. 347, 358-59 (1967) (holding that government's warrantless recording of a telephone conversation is a "search" under the Fourth Amendment).
60. Kastigar v. United States, 406 U.S. 441, 453 (1972) (holding that the Fifth Amendment Self-Incrimination Clause requires "use immunity" in order for the government to compel a person to testify over a self-incrimination claim); Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring that a person in custody be advised of his rights to remain silent and to speak with an attorney before being questioned in order for any statement to be admissible); Griffin v. California, 380 U.S. 609, 612-13 (1965) (holding that the Self-Incrimination Clause prohibits a prosecutor from commenting on the defendant's decision not to testify at his trial); Green v. United States, 355 U.S. 184, 188 (1957) (holding that the Fifth Amendment Double Jeopardy Clause bars retrial of an acquitted defendant).
61. Crawford v. Washington, 541 U.S. 36, 50-51 (2004) (holding that the Sixth Amendment Confrontation Clause guarantees a defendant the right to be confronted with the witnesses against him and therefore limits use at trial of out-of-court statements); Apprendi v. New Jersey, 530 U.S. 466, 483-84 (2000) (holding that the Sixth Amendment Jury Trial Clause guarantees a defendant the right to have the jury make all findings necessary for a sentence to be imposed in excess of the statutory maximum); Massiah v. United States, 377 U.S. 201, 204-05 (1964) (holding that the Sixth Amendment Counsel Clause prohibits the police from deliberately eliciting incriminating statements from a charged suspect in the absence of counsel or a waiver); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (holding that the Sixth Amendment Counsel Clause guarantees an indigent defendant charged with a felony the right to the appointment of trial counsel at state expense); see generally Perry v. New Hampshire, 132 S. Ct. 716, 716 (2012) (discussing Sixth Amendment fair trial guarantees).
62. Kennedy v. Louisiana, 554 U.S. 407, 421 (2008) (holding that the Eighth Amendment prohibits imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim); Roper v. Simmons, 543 U.S. 551, 569-75 (2005) (holding that the Eighth Amendment prohibits imposing the death penalty on minors); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment prohibits imposing the death penalty on mentally retarded defendants); Harmelin v. Michigan, 501 U.S. 957, 997-1001 (1991) (Kennedy, J., concurring) (ruling that the Eighth Amendment prohibits only grossly disproportionate terms of imprisonment); Gregg v. Georgia, 428 U.S. 153, 179 (1976) (rejecting the claim that the death penalty is invariably a cruel and unusual punishment and upholding a capital sentencing scheme that guided the jury's discretion); Furman v. Georgia, 408 U.S. 238 (1972) (upholding challenge based on the Eighth Amendment Cruel and Unusual Punishments Clause to purely discretionary capital sentencing schemes).
63. Ake v. Oklahoma, 470 U.S. 68, 86 (1985) (stating that due process requires that an indigent defendant be provided psychiatric assistance when the defendant shows that sanity will be a significant issue at trial); Chambers v. Mississippi, 410 U.S. 284, 294-303 (1973) (finding due process violated when state evidentiary rules excluded compelling evidence of innocence); Brady v. Maryland, 373 U.S. 83, 86 (1963) (holding that due process requires the prosecution to disclose exculpatory information to the defense); Tumey v. Ohio, 273 U.S. 510, 531 (1927) (explaining that due process is violated when town mayor-and-judge receives fees only for cases resulting in a conviction).
64. Weeks v. United States, 232 U.S. 383, 398 (1914) (adopting an exclusionary rule to suppress evidence obtained by federal law enforcement officers in violation of the Fourth Amendment); Minneci v. Pollard, 132 S. Ct. 617, 619 (2012) (declining to imply a Bivens action for federal prisoners raising tort claims against a privately managed prison's personnel); Davis v. United States, 131 S. Ct. 2419, 2426-29 (2011); United States v. Leon, 468 U.S. 897, 912 (1984) (adopting a "reasonable mistake" exception to the Weeks exclusionary rule); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (ruling that the victim of an unconstitutional search can bring a damages action against the responsible government officials).
65. Monroe v. Pape, 365 U.S. 167, 178 (1961), overruled in part by Monell v. Dep't of Soc. Servs. Of City of N.Y., 436 U.S. 658 (1978) (explaining that Section 1 of the Ku Klux Act of 1871, ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. § 1983 (2006)), provides a private party with a remedy against state and local officials for a violation of the Constitution); Mapp v. Ohio, 367 U.S. 643, 656 (1961) (applying the Weeks exclusionary rule to evidence obtained by state law enforcement officers in violation of the Fourth Amendment); see also Herring v. United States, 555 U.S. 135, 136 (2009), Hudson v. Michigan, 547 U.S. 586, 597-99 (2006), and Arizona v. Evans, 514 U.S. 1, 14-16 (1995) (all applying the Leon exception in various non-warrant contexts).
66. The Constitution plays a limited role in regulating the plea-bargaining process. In general, plea bargaining between the prosecutor and defense counsel does not violate a defendant's Fifth Amendment self-incrimination privilege or Sixth Amendment right to a fair trial. See, e.g., McMann v. Richardson, 397 U.S. 759 (1970); Brady v. United States, 397 U.S. 742 (1970). The Constitution does require a prosecutor to keep his promises if the defendant pleads guilty pursuant to a plea bargain. See, e.g., Santobello v. New York, 404 U.S. 257 (1971). Absent case-specific proof of racial animus or some other invidious or retaliatory intent, see, e.g., Blackledge v. Perry, 417 U.S. 21 (1974), however, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357 (1978). On plea bargaining generally.
67. George Fisher, Plea Bargaining's Triumph (2003).
68. Albert W. Alschuler, Plea Bargaining and Its History, 79 COLUM. L. REV. 1 (1979).
69. Capital sentencing procedures have been strictly regulated by the Eighth Amendment Cruel and Unusual Punishments Clause ever since Furman v. Georgia, 408 U.S. 238 (1972). The same strict rules do not apply to non-capital sentencing. Compare, e.g., Williams v. New York, 337 U.S. 241, 251-52 (1949) (explaining due process does not require disclosure to the defense of any information used to impose a death sentence), with, e.g., Gardner v. Florida, 430 U.S. 349, 362 (1977) (holding, post-Furman, that due process requires disclosure to the defense of any information used to impose a death sentence; overruling Williams for capital cases).
70. The post-trial process is in a different category. The Constitution does not guarantee a defendant the right to take an appeal, see McKane v. Durston, 153 U.S. 684, 686-88 (1894), but, if a state creates an appellate process, the Constitution plays a limited role in regulating access to it, see, e.g., Halbert v. Michigan, 545 U.S. 605, 610 (2005) (holding that an indigent defendant has a right to appointed counsel on his first appeal); Griffin v. Illinois, 351 U.S. 12, 16-19 (1956) (holding that indigent defendants have a right to a free trial transcript for appeal).
71. Even those two excepted fields eventually may be smothered by federal constitutional law. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1411 (2012) (holding that defense counsel's failure to advise a defendant of a favorable plea offer allows a prisoner to challenge his later guilty plea); Lafler v. Cooper, 132 S. Ct. 1376, 1382 (2012) (holding that defense counsel's constitutionally deficient advice not to accept a favorable plea offer allows a defendant to challenge his conviction at trial); Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (holding that the Eighth Amendment Cruel and Unusual Punishments Clause prohibits imposition of a sentence of life without the possibility of parole on a minor for a nonhomicide crime).
72. Plucknett, supra note 35, at 442-462 (discussing the felonies at common law).
73. Holmes, supra note 11, at 125 ("[T]he fact that crimes are also generally sins is one of the practical justifications for requiring a man to know the criminal law."); LAFAVE, supra note 11, § 1.3(f).
74. Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. CHI. L. REV. 641, 644 (1940).
75. "[T]he early criminal law appears to have been well integrated with the mores of the time, out of which it arose as 'custom.'".
76. FRIEDMAN, supra note 24, at 31-58.
77. SALMOND, supra note 11, at 426-427.
78. SALMOND, supra note 11, at 427.
79. SALMOND, supra note 11, at 427.
80. AUSTIN, supra note 11, at 485.
81. 55See LAFAVE, supra note 11, § 1.6(b) (defining those terms). Jerome Hall phrases this concern in a slightly different manner. He distinguishes between actions that are inherently immoral and ones that are immoral only because they are forbidden. Hall, supra note 9, at 35-36. The point is the same, however it is described.
82. Graham Hughes, Criminal Omissions, 67 YALE L.J. 590, 595 (1958).
83. "For it was in the latter half of the nineteenth century that the great chain of regulatory statutes was initiated in England, which inaugurated a new era in the administration of the criminal law. Among them are the Food and Drugs Acts, the Licensing Acts, the Merchandise Marks Acts, the Weights and Measures Acts, the Public Health Acts and the Road Traffic Acts. With these statutes came a judicial readiness to abandon traditional concepts of mens rea and to base criminal liability on the doing of an act, or even upon the vicarious responsibility for another's act, in the absence of intent, recklessness or even negligence." (footnotes omitted)).
84. Francis Bowles Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 63-67 (1933).
85. Sanford Kadish, Some Observations on the Use of Criminal Sanctions in the Enforcement of Economic Regulations, 30 U. CHI. L. REV. 423, 424-425 (1963).
86. Gerald E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 LAW & CONTEMP. PROBS. 23, 37 (1997).
87. "Legislatures, concerned about the perceived weakness of administrative regimes, have put criminal sanctions behind administrative regulations governing everything from interstate trucking to the distribution of food stamps to the regulation of the environment." (footnote omitted).
88. Richard J. Lazarus, The Making Of Environmental Law (2004).
89. Peter S. Menell & Richard B. Stewart, Environmental Law And Policy (1994).
90. Robert V. Percival et al., Environmental Regulation: Law, Science, And Policy (5th ed. 2006).
91. Congress enacted a few federal laws prior to 1970 that had a limited effect of protecting the environment. Section 13 of the Rivers and Harbors Appropriations Act of 1899, also known as the Refuse Act, 33 U.S.C. § 407 (2006), was primarily designed as a means of protecting navigation and commerce, but that law made it a misdemeanor to jettison garbage or other material, such as petroleum products and industrial solid wastes, into navigable waters. See United States v. Standard Oil Co., 384 U.S. 224, 229-30 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 489-92 (1960). As such, the federal government used the Refuse Act early on to prosecute polluters of the nation's waters. See, e.g., United States v. Penn. Indus. Chem. Corp., 411 U.S. 655 (1973); United States v. White Fuel Corp., 498 F.2d 619 (1st Cir. 1974).
92. Environmental law has principally come into being in the last forty years. The first modern-day substantive environmental protection laws were the Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended in scattered sections of 42 U.S.C. (2006)), the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified in scattered sections of 33 U.S.C. (2006)), and the Resource Conservation and Recovery Act of 1976 (RCRA), Pub. L. No. 94-580, 90 Stat. 2795. Congress amended those statutes over time in order to strengthen their effectiveness. As to the Clean Air Act, see the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (codified as amended in scattered sections of 42 U.S.C. (2006)); and the Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended in scattered sections of 42 U.S.C. (2006)). As to the Clean Water Act, see the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (codified as amended at 33 U.S.C. §§ 1281(a), 1294-97 (2006)); and the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (codified as amended at 33 U.S.C. §§ 1267-1377 (2006)). As to RCRA, see The Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221 (codified as amended at 33 U.S.C. §§ 6901-91 (2006)).
93. Congress also passed several other laws, such as the Ocean Dumping Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052 (codified at 16 U.S.C. §§ 1431-47, 33 U.S.C. §§ 1401-45, 2802-05 (2006)); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 26 U.S.C. §§ 4611-12, 4661-62, 42 U.S.C. §§ 9601-75 (2006)), which Congress amended in the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (codified as amended at scattered sections of 10, 26, 42 U.S.C. (2006)); the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388 (1990) (codified in scattered sections of U.S.C. (2006)); the Pollution Prosecution Act of 1990, Pub. L. No. 101-593, tit. 2, 104 Stat. 2962; the Toxic Substances Control Act, 15 U.S.C. §§ 2601-97 (2006), the Safe Drinking Water Act, 42 U.S.C. §§ 300f-j-25 (2006); the Federal Fungicide, Insecticide, and Rodenticide Act, 7 U.S.C. § 136 (2006); the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 11001-50 (2006).
94. Underground Storage Tank Compliance Act, 42 U.S.C. § 6991j-m (2006); and the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-62 (2006). The result is this: The 21st edition of THE ENVIRONMENTAL LAW HANDBOOK (Thomas F. P. Sullivan ed., 2011), a collection and discussion of all federal environmental laws, is more than 1,000 pages in length, nearly twice as long as the 12th edition of that text, which was published in 1993, and many of the provisions discussed in that text can underlie a criminal charge.
95. Richard J. Lazarus, Assimilating Environmental Protection into Legal Rules and the Problem with Environmental Crime, 27 LOY. L.A. L. REV. 867, 869 & n.3 (1994) [hereinafter Lazarus, Assimilating Environmental Protection].
96. Percival et al., supra note 58, at 962-963.
97. Robert W. Adler & Charles Lord, Environmental Crimes: Raising the Stakes, 59 GEO. WASH. L. REV. 781, 792-793 (1991).
98. F. Henry Habicht, II, The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 ENVTL. L. REP. 10478, 10478-10480 (1987).
99. Judson W. Starr, Turbulent Times at Justice and EPA: The Origins of Environmental Criminal Prosecutions and the Work that Remains, 59 GEO. WASH. L. REV. 900, 902-912 (1991).
100. Judson W. Starr, Countering Environmental Crimes, 13 B.C. ENVTL. AFF. L. REV. 379, 380-384 (1986).
101. James M. Strock, Environmental Criminal Enforcement Priorities for the 1990s, 59 GEO. WASH. L. REV. 916, 917-922 (1991).
102. Environmental Law Handbook, supra note 58, at 96-127. For an insider's guide to the investigation of environmental crime.
103. Steven C. Drielak, Environmental Crime (1998).
104. Percival, et al., supra note 58, at 962.
105. Habicht, supra note 59, at 10,478. The most prominent federal law used to prosecute false statements is 18 U.S.C. § 1001, which makes it a crime to make a materially false statement on a matter "within the jurisdiction of" a federal agency. Unlike the laws outlawing perjury, the false statement statute does not require a party to be sworn.
106. Stuart P. Green, LYING, CHEATING, AND STEALING 161 (2006).
107. The federal environmental laws can impose additional penalties. Under the Blockburger test, Congress can impose multiple sentences under different laws for the same conduct as long as each statute requires proof of a fact that the others do not. See Blockburger v. United States, 284 U.S. 299, 304 (1932); see also, e.g., Rutledge v. United States, 517 U.S. 292, 297 (1996); Brown v. Ohio, 432 U.S. 161, 164-66 (1977).
108. Percival, et al., supra note 58, at 962.
109. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
110. Currently, ignorance or mistake of law plays only a limited role as a defense to criminal liability. Ignorance or mistake of law can be a defense if the statute requires or demands proof that the defendant knew he was breaking the law. For example, a defendant's good-faith belief that he owned the property he took would defeat a larceny charge. See State v. Brown, 16 S.W. 406, 407-08 (Mo. 1891). A mistake of law defense also can be raised in the case of certain complex regulatory schemes where it is unreasonable to conclude that Congress intended to penalize a person's good-faith belief that his conduct is lawful. See, e.g., Cheek v. United States, 498 U.S. 192, 202-03 (1991) (federal tax code); United States v. Lizarraga-Lizarraga, 541 F.2d 826, 826-29 (9th Cir. 1976) (export control laws). In some circumstances, ignorance of a fact may be a defense, even if ignorance of law cannot. See Staples v. United States, 511 U.S. 600, 607 n.3 (1994); 1 AUSTIN, supra note 11, at 481; Herbert L. Packer, Mens Rea and the Supreme Court, 1962 SUP. CT. REV. 107, 109 & n.10. Some have treated "ignorance" as a lack of knowledge and a "mistake" as a failure of reasoning, see Hall, supra note 9, at 2 & n.5; Keedy, supra note 9, at 76, but the distinction is too fine to matter for this purpose.
111. Cass, supra note 10, at 689-695.
112. Cass, supra note 10, at 691.
113. Cheek v. United States, 498 U.S. 192, 199 (1991) (stating the rule that ignorance of the law is no defense is "[b]ased on the notion that the law is definite and knowable"); 1 AUSTIN, supra note 11, at 480-81 ("Ignorance or error with regard to matter of fact, is often inevitable: That is to say, no attention or advertence could prevent it. But ignorance or error with regard to the state of the law, is never inevitable. For the law is definite and knowable, or might or ought to be so."); 4 BLACKSTONE, supra note 11, at*27; SALMOND, supra note 11, at 426; Hall, supra note 2, at 15-16.
114. STEPHEN, supra note 11, at 95.
115. AUSTIN, supra note 11, at 481-482.
116. Hall, supra note 2, at 14; see also People v. O'Brien, 31 P. 45, 47 (Cal. 1892).
117. Hall & Seligman, supra note 49, at 646.
118. Keedy, supra note 9, at 77.
119. "The first Congress enacted laws punishing treason, misprision of treason, perjury in federal court, bribery of federal judges, forgery of federal certificates and securities, and murder, robbery, larceny and receipt of stolen property on federal property or on the high seas.".
120. George J. Terwilliger III, Under-Breaded Shrimp and Other High Crimes: Addressing the Over-Criminalization of Commerical Regulation, 44 AM. CRIM. L. REV. 1417, 1419-1420 (2007)
121. Footnotes omitted; see An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112 (1790). That number increased over time as American society began to recognize that only the federal government could regulate interstate commerce, and as the Supreme Court expanded Congress's power in this regard. See, e.g., Champion v. Ames, 188 U.S. 321, 354-55 (1903) (upholding federal statute prohibiting the mails from being used for the purpose of promoting a lottery); FRIEDMAN, supra note 24, at 264-65.
122. For example, the Illinois penal code grew between 1961 and 2001 from 72 pages to 1,200 pages.
123. John R. Emshwiller & Gary Fields, Criminal Code Tough to Crack: Struggle to Revamp Illinois Laws Offers Glimpse of What Congress Faces in Its Effort, WALL ST. J., Dec. 29, 2011, at A3.
124. John S. Baker, Jr., Heritage Found. Legal Memorandum, Revisiting The Explosive Growth Of Federal Crimes (June 16, 2008), available at http://s3.amazonaws.com/thf_media/2008/pdf/lm26.pdf.
125. Paul Rosenzweig, The History of Criminal Law, in One Nation, Under Arrest 127, 131 (Paul Rosenzweig & Brian W. Walsh eds., 2010).
126. Terwilliger, supra note 72, at 1418. That problem only gets worse when a prosecutor "digs into ancient books to exhume and enforce long-forgotten statutes." Hall, supra note 2, at 35 (footnote omitted).
127. FRIEDMAN, supra note 24, at 282-83 ("There have always been regulatory crimes, from the colonial period onward.... But the vast expansion of the regulatory state in the twentieth century meant a vast expansion of regulatory crimes as well. Each statute on health and safety, on conservation, on finance, on environmental protection, carried with it some form of criminal sanction for violation.... Wholesale extinction may be going on in the animal kingdom, but it does not seem to be much of a problem among regulatory laws. These now exist in staggering numbers, at all levels. They are as grains of sand on the beach.").
128. Edwin Meese, III, Introduction to ONE NATION, UNDER ARREST, supra note 74, at 15-16, 218.
129. Meese, supra note 76, at 18.
130. Dick Thornburgh, The Dangers of Over-Criminalization and the Need for Real Reform: The Dilemma of Artificial Entities and Artificial Crimes, 44 AM. CRIM. L. REV. 1279, 1281 (2007).
131. Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Are Ensnared, WALL ST. J., July 23, 2011, at A1.
132. Sayre, supra note 56, at 67.
133. 36 C.F.R. § 2.15(a)(2) (2011).
134. 36 C.F.R. § 2.10(b)(1).
135. 36 C.F.R. § 2.11.
136. 36 C.F.R. § 2.12(a)(1).
137. 36 C.F.R. § 2.14(a)(5).
138. 36 C.F.R. § 2.16(e).
139. 36 C.F.R. § 2.18(d)(1). The term "excessive noise" is helpfully defined as follows: Excessive noise for snowmobiles manufactured after July 1, 1975 is a level of total snowmobile noise that exceeds 78 decibels measured on the A-weighted scale measured at 50 feet. Snowmobiles manufactured between July 1, 1973 and July 1, 1975 shall not register more than 82 decibels on the A-weighted scale at 50 feet. Snowmobiles manufactured prior to July 1, 1973 shall not register more than 86 decibels on the A-weighted scale at 50 feet. All decibel measurements shall be based on snowmobile operation at or near full throttle. Id.
140. 36 C.F.R. § 2.20.
141. 36 C.F.R. § 2.22(a)(3).
142. 36 C.F.R. § 3.17(b).
143. Roscoe Pound made this point well: "Historically, our substantive criminal law is based upon the theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong." Roscoe Pound, Introduction to FRANCIS BOWLES SAYRE, CASES ON CRIMINAL LAW (1927); see also HOLMES, supra note 11, at 47.
144. As Professor Cass has explained,At common law, the mens rea necessary to convict generally required that the government show the defendant to have acted purposefully to bring about a harm, to have known facts indicating that the harm would be a likely result of his action, or to have acted without concern for whether the harm would follow. Cass, supra note 10, at 683 (footnote omitted).
145. Id. For example, a person who mistakenly took someone else's umbrella would not have committed theft because he did not realize that the umbrella was not his.
146. Which gave rise to Holmes's famous quip that "even a dog distinguishes between being stumbled over and being kicked." HOLMES, supra note 11, at 5.
147. Sayre, supra note 56, at 58-59, 67, 72, 78-82.
148. Staples v. United States, 511 U.S. 600, 617 (1994) (collecting authorities); People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 121 N.E. 474, 477 (N.Y. 1918).
149. Gerald E. Lynch, supra note 57, at 38-39 ("[T]he more dominant and longer-standing trend in our century has been the erosion of mens rea requirements. This period has seen the dramatic growth of strict liability offenses (and their close cousin, liability for negligence) in American criminal law, and such offenses have found a particular home in the kind of regulatory criminal statutes that have the greatest impact in corporate settings.").
150. Brian W. Walsh & Tiffany M. Joslyn, Heritage Found. & Nat'l Ass'n Of Criminal Def. Lawyers, Without Intent: How Congress Is Eroding The Criminal Intent Requirement In Federal Law (Apr. 2010), Available At https://s3.amazonaws.com/thf_media/2010/pdf/WithoutIntent_lo-res.pdf.
151. STUNTZ, supra note 26, at 32; Rosenzweig, supra note 74, at 138-50; see, e.g., United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971); United States v. Freed, 401 U.S. 601 (1971).
152. Consider the case of United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1101 (2000). See Rosenzweig, supra note 74, at 127-28, 145-48. Edward Hanousek, Jr. was an employee of the Pacific & Arctic Railway and Navigation Company working as the roadmaster of the White Pass & Yukon Railroad. Hanousek supervised a rock quarry project at a site on an embankment 200 feet above the Skagway River in Alaska. One day during rock removal operations-while Hanousek was off duty and at home-a backhoe operator, employed by an independent contractor retained before Hanousek was hired, accidentally struck a petroleum pipeline near the railroad tracks. The operator's error ruptured the pipeline and spilled 1,000 to 5,000 gallons of oil into the river. Hanousek was convicted under the Clean Water Act, 33 U.S.C. § 1319(c)(1)(A) (2006), for negligently discharging oil into a navigable water of the United States. The district court and court of appeals rejected his argument that the Due Process Clause prohibited him from being convicted only for negligence.
153. The Environmental Protection Agency has been a particularly fruitful source of regulations. "Since its inception in 1970, the [EPA] has grown to enforce some 25,000 pages of federal regulations, equivalent to about 15% of the entire body of federal rules. Many of the EPA rules carry potential criminal penalties." Fields & Emshwiller, supra note 78. There are numerous other statutes aside from the environmental laws that authorize federal agencies to issue regulations that can be used in a criminal prosecution. See, e.g., National Park Service Organic Act, 16 U.S.C. §§ 1-4 (2006); Arms Export Control Act, 22 U.S.C. §§ 2751-99aa-2 (2006); Chemical Weapons Convention Implementation Act of 1998, 22 U.S.C. §§ 6701-71 (2006); Export Administration Act of 1979, 50 App. U.S.C. §§ 2401-20 (2006).
154. The complexity of environmental statutes and regulations is well known, but their obscurity may not be fully understood. A significant problem in this area is that the government's interpretation of regulations is often issued in "guidance documents" that may not be generally available. No one seems to know (or even to have investigated) the number of memoranda reflecting a federal agency's interpretation of its own regulations, even though that interpretation is generally considered controlling. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 255-58 (2006); Auer v. Robbins, 519 U.S. 452, 461-62 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 417-18 (1945); cf. Stinson v. United States, 508 U.S. 36, 45 (1993) (collecting cases and holding that the same rule applies to the U.S. Sentencing Commission's interpretation of the Sentencing Guidelines). The result is that critics of environmental law complain that the government may rely on "secret" or "underground" law as a basis for claiming a violation.
155. Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TULANE L. REV. 487, 503 (1996).
156. The Internet allows such documents to be posted for public viewing; that may ameliorate the problem, but is unlikely to make the problem go away.
157. Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO L.J. 2407 (1995).
158. Lazarus, Assimilating Environmental Protection, supra note 58, at 881-84.
159. ENVIRONMENTAL LAW HANDBOOK, supra note 58, at 80 ("Criminal provisions in environmental law challenge traditional notions of criminal conduct.").
160. Id. at 97; see Toxic Substances Control Act, 15 U.S.C. § 2615(b) (2006); Ports and Waterways Safety Act, 33 U.S.C. § 1232(b)(1)-(2) (2006); Safe Drinking Water Act, 42 U.S.C. § 300h-2(b)(2) (2006).
161. Kathleen F. Brickey, Environmental Crime 25 (2008).
162. Lazarus, Assimilating Environmental Protection, supra note 58, at 881; see, e.g., United States v. Cooper, 482 F.3d 658, 667-68 (4th Cir. 2007); United States v. Sinskey, 119 F.3d 712, 715-16 (8th Cir. 1997); United States v. Hopkins, 53 F.3d 533, 537-41 (2d Cir. 1995); United States v. Weitzenhoff, 35 F.3d 1275, 1284 (9th Cir. 1993) (en banc); United States v. Baytank (Houston), Inc., 934 F.2d 599, 613 (5th Cir. 1991).
163. Clean Water Act of 1977, 33 U.S.C. § 1319(c)(1) (2006); Clean Air Act of 1970, 42 U.S.C. § 7413(c)(4) (2006); United States v. Ortiz, 427 F.3d 1278, 1282-83 (10th Cir. 2005); United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999) (upholding conviction for negligence); United States v. Frezzo Bros., Inc., 602 F.2d 1123, 1129 (3d Cir. 1979) (same); ENVIRONMENTAL LAW HANDBOOK, supra note 58, at 97. One law, the Rivers and Harbors Appropriations Act of 1899, also known as the Refuse Act, 33 U.S.C. § 407 (2006), makes it a strict liability misdemeanor to discharge garbage into navigable waters of the United States. See, e.g., United States v. White Fuel Corp., 498 F.2d 619, 623 (1st Cir. 1974); BRICKEY, supra note 100, at 58-59.
164. The courts have permitted that imputation of knowledge pursuant to what is known as the "collective knowledge" doctrine, under which a corporation's knowledge is the sum of what all its employees know when acting within the scope of their responsibilities. United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987); BRICKEY, supra note 100, at 49-50; ENVIRONMENTAL LAW HANDBOOK, supra note 58, at 97.
165. United States v. Johnson & Towers, Inc., 741 F.2d 662, 670 (3d Cir. 1984) (holding that the jury may infer knowledge of the lack of a permit "to those individuals who hold the requisite responsible positions with the corporate defendant"); ENVIRONMENTAL LAW HANDBOOK, supra note 58, at 97 ("For management, culpability is largely a measure of whether they actively participated in or countenanced the environmental misconduct."); cf. United States v. Park, 421 U.S. 658, 677-78 (1975) (explaining that juries may infer corporate officers are aware of the facts constituting a crime without proof that they subjectively knew the facts). Some courts, however, have imposed a stricter proof requirement on the government. See United States v. McDonald & Watson Waste Oil Co., 933 F.2d 35, 55 (1st Cir. 1991) ("[K]nowledge may be inferred from circumstantial evidence, including position and responsibility of defendants such as corporate officers, as well as information provided to those defendants on prior occasions. Further, willful blindness to the facts constituting the offense may be sufficient to establish knowledge.
166. However, the district court erred by instructing the jury that proof that a defendant was a responsible corporate officer, as described, would suffice to conclusively establish the element of knowledge expressly required under [42 U.S.C.] § 3008(d)(1). Simply because a responsible corporate officer believed that on a prior occasion illegal transportation occurred, he did not necessarily possess knowledge of the violation charged. In a crime having knowledge as an express element, a mere showing of official responsibility under Dotterweich and Park is not an adequate substitute for direct or circumstantial proof of knowledge.").
167. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9603(b)(3) (2006); McDonald, 933 F.2d at 55 ("CERCLA imposes criminal sanctions upon any person in charge of a facility from which a'reportable quantity' of a hazardous substance is released who fails to immediately notify the appropriate federal agency.").
168. ENVIRONMENTAL LAW HANDBOOK, supra note 58, at 102 (footnote omitted). An additional problem in the criminal environmental area is that there are more political controversies and interbranch feuding than in other areas of the federal criminal law.
169. Lazarus, Assimilating Environmental Protection, supra note 58, at 872-879.
170. Lazarus, Assimilating Environmental Protection, supra note 58, at 882; Terwilliger, supra note 72, at 1418 ("Environmental laws for instance, incorporate steep criminal penalties for failing to meet regulatory standards in conducting what is otherwise legitimate commercial activity. Polluting is legal in the United States; the government issues permits to allow it. Polluting too much, however, can be a felony. Some acts of pollution may indeed be criminal because they involve volitional and intentional acts that can result in foreseeable and significant harm-dumping highly toxic materials in an open field or waterway, for example. But the more common subject matter of environmental'crimes' involves the line between permitted and not permitted discharges, which can be razor thin, often expressed in parts per million, and the stuff of great debate between experts and scientists.").
171. Stephen Breyer, Breaking The Vicious Cycle 3-29 (1993).
172. What makes such an approach to mens rea particularly problematic in the environmental law context is that environmental standards, unlike most traditional crimes, present questions of degree rather than of kind. Murder, burglary, assault, and embezzlement are simply unlawful. There is no threshold level below which such conduct is acceptable. In contrast, pollution is not unlawful per se: In many circumstances, some pollution is acceptable. It is only pollution that exceeds certain prescribed levels that is unlawful. But, for that very reason, the mens rea element should arguably be a more, not less, critical element in the prosecution of an environmental offense.
173. Lazarus, Assimilating Environmental Protection, supra note 58, at 882; see also Terwilliger, supra note 72, at 1419 ("Problems caused by such explosive growth in federal regulatory prosecutions, especially in the criminalization of what in the past would have been viewed as purely civil or administrative matters, have been exacerbated by the various legal doctrines that have made it far easier to prosecute corporations. These include the respondeat superior doctrine and vicarious corporate liability, the collective knowledge doctrine, and the general lessening of the intent standard in many of the crimes involved. Where'intent' simply means'knowing conduct,' and where a corporation is held to know everything any of its employees knows and is held responsible for the actions of every employee, it is easy to understand why corporate prosecutions proliferate.").
174. Richard Lazarus has argued that the markedly different goals and designs of the environmental and criminal laws make their integration an enormously difficult challenge. See Lazarus, Assimilating Environmental Protection, supra note 58, at 883-84; Lazarus, supra note 101, at 2466-67; see also Brickey, supra note 100, at 497-504. In his words: [T]here is a danger, indeed a potential impropriety, in Congress's approach to environmental criminal liability. The question whether certain conduct warrants a criminal sanction is far different than whether a civil sanction may be warranted, precisely because the latter is susceptible to being no more than an economic disincentive. Criminal liability standards should be more settled and less dynamic. They should be more reflective of what in fact can be accomplished rather than of the public's aspirations of how, if pushed, the world can change in the future.
175. Perhaps most importantly, criminal sanctions should also be tempered by the gravity of the decision that certain conduct warrants the most severe of sanctions. Criminal sanctions are not simply another enforcement tool in the regulator's arsenal to promote public policy objectives. A criminal sanction is fundamentally different in character. The reason why criminal sanctions have greater deterrent value is also the reason why they must be used more selectively. Criminal sanctions should be reserved for the more culpable subset of offenses and not used solely for their ability to deter.
176. To date, Congress, however, has made no meaningful or systematic effort to consider criminal sanctions as presenting an issue distinct from that presented by civil sanctions. Congress has not tried to identify those circumstances in which the culpability of conduct warrants taking the next step of imposing criminal sanctions. Congress has not tried to identify those kinds of environmental standards for which criminal sanctions are more appropriate. Nor has Congress focused as carefully as it should on the mens rea issue.
177. Z Lazarus, Assimilating Environmental Protection, supra note 58, at 883-884 (footnote omitted).
178. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 507 (2001).
179. Generally Ellen S. Podgor, Overcriminalization: The Politics of Crime, 54 AM. U. L. REV. 541 (2005).
180. Discussing the vast number and breadth of federal criminal laws). Both parties are to blame for the problem of overcriminalization.
181. Kevin McKenzie, Law Professor Slams Expansion of Federal Crimes, COMMERCIAL APPEAL (Oct. 25, 2011, 11:21 PM), http://www.commercialappeal.com/news/2011/oct/25/law-professor-slams-exp ansion-federal-crimes/.
182. "[Law professor John S.] Baker blamed Republicans as well as Democrats for the trend, saying that both parties fuel it. One-third of about 4,200 federal crimes on the books have been passed since 1970 and Republican President Richard Nixon's'war on crime.'"). The problem may be most acute during election years. See Thornburgh, supra note 77, at 1282 ("A significant aspect of this increase in federal crimes over the past ten years, incidentally, is the wholly unsurprising fact that a disproportionate number of these criminal laws were passed in three election years, 1998, 2000, and 2002. The'jail-centric' approach by the Congress, which is fueled by the almost reflexive notion that being'tough on crime' is good fodder on the campaign trail while trolling for votes, has deep societal costs that are especially poignant in the regulatory and business arenas.").
183. For those who may find that statement overblown consider the following list of "crimes" and "criminals": (1) Abner Schoenwetter spent sixty-nine months in federal prison for importing marginally small lobsters and for bulk packing them in plastic, rather than bin boxes, in violation of Honduran law, which is made applicable to U.S. citizens by virtue of the Lacey Act, ch. 553, 31 Stat. 187 (1900) (codified as amended at 16 U.S.C. §§ 3371-78 (2006)); (2) the federal government charged retired race-car champion Bobby Unser for accidentally driving a snowmobile in a blizzard onto federal land where such devices are not allowed; (3) the federal government charged Robert Kern for moose hunting in Russia in violation of Russian law, as incorporated by the Lacey Act; (4) the federal government charged Eddie Anderson and his son with attempting to take arrowheads from a campsite that, unbeknownst to them, was on federal property; (5) the federal government charged George Norris with importing the wrong type of orchids, in violation of a treaty, the Convention on International Trade in Endangered Species, as incorporated by the Lacey Act, and of the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-34 (2006); (6) the federal government charged Robert Eldridge, Jr., with freeing a whale caught in his fishing net, rather than reporting the ensnarement to federal authorities so that they could free the whale instead, in violation of the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1371-1423 (2006); (7) the federal government charged Lawrence Lewis with diverting a backed-up sewage system (clogged by the adult diapers flushed down the toilet by the elderly residents at the nursing home where he worked) into the Potomac River, in violation of the Clean Water Act, despite his belief that the water was being sent to a sewage treatment plant; (8) the federal government charged Wade Martin with selling a sea otter skin to a person who turned out to be a non-native Alaskan, in violation of the Marine Mammal Protection Act of 1972; (9) the City of Palo Alto, California, had sixty-one-year-old grandmother Kay Liebrand arrested and criminally charged for allowing the bushes on her property to exceed two feet in height; and (10) New York City makes it a crime to hail a cab for someone not in one's "social company.".
184. Trent England et al., The Overcriminalization Problem, in ONE NATION, UNDER ARREST, supra note 74, at 3, 3-11, 23-30, 61-78.
185. Gary Fields & John R. Emshwiller, A Sewage Blunder Earns Engineer a Criminal Record, WALL ST. J., Dec. 12, 2011, at A1.
186. Gary Fields & John R. Emshwiller, The Animal Enterprise Terrorism Act Sets an Unusual Standard for Crime, WALL. ST. J., Sept. 27, 2011, at A12.
187. Gary Fields & John R. Emshwiller, As Federal Crime List Grows, Threshold of Guilt Declines, WALL ST. J., Sept. 27, 2011, at A1.
188. Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Ensnared, supra note 78, at A1.
189. Michael M. Grynbaum, Under Rule, Hailing a Cab for a Stranger Can Be Illegal, N.Y. TIMES, Nov. 25, 2011, at A14.
190. Because the ignorance rule is stated as a presumption, it could be argued that the presumption cannot be applied where doing so is irrational. On occasion, the Supreme Court has held that Congress may not rely on a presumption to serve as proof of an element of an offense if the presumed fact is more likely than not to follow the predicate fact. See Leary v. United States, 395 U.S. 6, 36 (1969); Tot v. United States, 319 U.S. 463, 467 (1943). Application of the Tot and Leary standard to the common law ignorance rule could prove unjustified in some cases. Cass, supra note 10, at 689. Of course, if Congress can and does dispense with the element of proof to which the presumption applies, the rule of Tot and Leary becomes of dubious utility. Packer, supra note 63, at 121 n.51. That is the case here. The presumption is irrebuttable, and therefore is the same as a rule of law foreclosing a mistake of law defense. Jellico Coal Mine Co. v. Commonwealth, 29 S.W. 26, 26-27 (Ky. 1895); SALMOND, supra note 11, at 426; see 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 2492 (2d ed. 1923).
191. Barlow v. United States, 32 U.S. (7 Pet.) 404, 411 (1833) (explaining that the principle that mistake of law is not an excuse "results from the extreme difficulty of ascertaining what is, bonâ fide, the interpretation of the party...."); see also People v. O'Brien, 31 P. 45, 46-47 (Cal. 1892); AUSTIN, supra note 11, at 483; 4 WILLIAM BLACKSTONE, COMMENTARIES*46; see HOLMES, supra note 11, at 41; KENNY, supra note 11, at 68 n.5 (suggesting the rationale for the ignorance rule is "not a realisation of ideal justice, but an exercise of Society's right of self-preservation") (quoting Prof. Henry Sidgwick); SALMOND, supra note 11, at 426; 1 WHARTON, supra note 15, at § 399; Hall & Seligman, supra note 49, at 646-47; Packer, supra note 63, at 109.
192. As Holmes explained: The true explanation of the rule is the same as that which accounts for the law's indifference to a man's particular temperament, faculties, and so forth. Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder. It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales.
193. HOLMES, supra note 11, at 46.
194. AUSTIN, supra note 11, at 483.
195. Id. ("For, in almost every case, ignorance of the law would be alleged. And, for the purpose of determining the reality and ascertaining the cause of the ignorance, the Court were [sic] compelled to enter upon questions of fact, insoluble and interminable.").
196. Cass, supra note 10, at 689.
197. HOLMES, supra note 11, at 45.
198. Id. at 45 & n.*.
199. Stanley v. Illinois, 405 U.S. 645, 656-57 (1972) ("The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.").
200. HOLMES, supra note 11, at 45.
201. Arave v. Creech, 507 U.S. 463, 473 (1993) ("'The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove... but if it can be ascertained it is as much a fact as anything else.'") (quoting Edgington v. Fitzmaurice, (1885) 29 Ch. D. 459, 483); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716-17 (1983).
202. HOLMES, supra note 11, at 45.
203. The term "willful" often is used to describe that state of mind necessary for violations of the federal tax laws. See, e.g., Bryan v. United States, 524 U.S. 184, 191 (1998); Ratzlaf v. United States, 510 U.S. 135, 138 (1994); Cheek v. United States, 498 U.S. 192, 200 (1991); United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Bishop, 412 U.S. 346, 360 (1973).
204. The Cheek case involved just that. An airline pilot and tax protestor claimed that he had a good-faith belief that he was not obliged to file an income tax return because the federal tax laws and Sixteenth Amendment could not authorize a federal income tax on wages and salaries. After being convicted of willfully failing to pay his taxes, he argued that a subjective good-faith belief is a complete defense to such a charge, even if that belief is not objectively reasonable. The Supreme Court agreed with him. See Cheek, 498 U.S. at 194-96, 201-07.
205. There are a few other cases involving other complex regulatory schemes a person may defend by relying on a good-faith belief that his conduct is lawful. See, e.g., United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828-29 (9th Cir. 1976) (export control laws). But the criminal tax field remains the largest one in this regard.
206. FRIEDMAN, supra note 24, at 108-09 ("Perhaps the most primitive and basic rules in the criminal justice system were those that protected property rights.... The laws against theft, larceny, embezzlement, and fraud are familiar friends. People may not know every technical detail, but they get the general point. Probably all human communities punish theft in one way or another; it is hard to imagine a society that does not have a concept of thievery, and some way to punish people who help themselves to things that'belong' to somebody else."); see also SALMOND, supra note 11, at 427.
207. Mark D. Yochum, The Death of a Maxim: Ignorance of the Law Is No Excuse (Killed by Money, Guns and a Little Sex), 13 ST. JOHN'S J. LEG. COM. 635, 636 (1999).
208. "[E]vil is fundamentally known.... Ignorance that murder is a crime is no excuse for the crime of murder.".
209. The historic M'Naghten test of insanity exculpated a defendant suffering from a "defect of reason, from a disease of the mind," if he did not know the nature and quality of his actions or, even if he did, did not know that they were wrong. See M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.) 722. The Model Penal Code definition of insanity and federal law have modified those elements, but still focus on the presence of a mental disease depriving a person of the ability to conform to the law's requirements or to know that his actions are wrongful. See, e.g., 18 U.S.C. § 17 (2006); Clark v. Arizona, 548 U.S. 735, 749-56 & nn.7-22 (2006) (discussing the development of various forms of the insanity defense). A person who claims that he was unaware that theft and murder are illegal effectively is raising an insanity defense and should be treated as if he had done so directly.
210. Horning v. District of Columbia, 254 U.S. 135, 138 (1920).
211. STUNTZ, supra note 26, at 285-286, 386 nn.1-4 (collecting authorities and summarizing the debate over jury nullification).
212. The term "white-collar crime" has been defined various ways in the law and the social sciences. See GREEN, supra note 60, at 9-20; DAVID WEISBURD & ELIN WARING WITH ELLEN F. CHAYET, WHITE-COLLAR CRIME AND CRIMINAL CAREERS 8-18 (2001). Edwin Sutherland, the father of the concept, defined it as crime "committed by a person of respectability and high social status in the course of his occupation." EDWIN H. SUTHERLAND, WHITE COLLAR CRIME 7 (1983) (footnote omitted). By contrast, the FBI (like most people) defines that term in its colloquial sense of "lying, cheating, and stealing," and as being "synonymous with the full range of frauds committed by business and government professionals." White-Collar Crime, FBI, http://www.fbi.gov/about-us/investigate/white_collar/whitecollarcrime (last visited Feb. 25, 2012); see also FRIEDMAN, supra note 24, at 290. This article will use the term in that manner, too.
213. Edwin Sutherland, the grandfather of white-collar crime theory, believed that society mistakenly belittled or overlooked the harmful effects of white-collar crime because of the high social status of the offenders.
214. Generally Edwin H. Sutherland, Is "White Collar Crime" Crime?, 10 AMER. SOC. REV. 132 (1945).
215. Edwin H. Sutherland, White Collar Crime (1949).
216. Edwin H. Sutherland, On Analyzing Crime (1973).
217. The failure of Enron and the Bernie Madoff Ponzi scheme come to mind. See Skilling v. United States, 130 S. Ct. 2896 (2010); Nick Carbone, Top 10 Swindlers, TIME (Mar. 7, 2012), http://www.time.com/time/specials/packages/article/0,28804,2104982_21049 83_2105005,00.html.
218. supra note 133.
219. Michele Kuruck, Comment, Putting Polluters in Jail: The Imposition of Criminal Sanctions on Corporate Defendants Under Environmental Statutes, 20 LAND & WATER L. REV. 93, 95 (1985).
220. George K. Gardner, Bailey v. Richardson and the Constitution of the United States, 33 B.U. L. REV. 176, 193 (1953)
221. "The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment than a state prison; death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community's hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.".
222. HOLMES, supra note 11, at 50 ("It is not intended to deny that criminal liability... is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, 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."); Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 419 (1958); see also, Packer, supra note 63, at 109.
223. Susan L. Pilcher, Ignorance, Discretion and the Fairness of Notice: Confronting "Apparent Innocence" in the Criminal Law, 33 AM. CRIM. L. REV. 1, 1-2 (1995).
224. "Equally fundamental to our criminal justice tradition is the notion that a culpable criminal intent, or mens rea, is generally a moral prerequisite to the imposition of punishment. Criminal punishment in the absence of personal blameworthiness is counterintuitive to the average person, and American law purports to permit such results only in the face of compelling public health and safety interests."); Sayre, supra note 56, at 72 ("To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice....".
225. Not to mention that once a person is arrested, law enforcement submits the arrest information to the National Crime Information Center, which can be accessed via a patrol car computer. See National Crime Information Center, FBI, http://www.fbi.gov/about-us/cjis/ncic (last visited Apr. 10, 2012) (explaining function of the NCIC). The result is that every future traffic stop becomes a far less welcome adventure.
226. A defendant can be made to bear the burden of production regarding a defense-that is, of raising the defense and introducing sufficient proof to make the defense an issue. See, e.g., Simopoulos v. Virginia, 462 U.S. 506, 510 (1983) (collecting cases). Sometimes a defendant must bear the burden of proof, see, e.g., Martin v. Ohio, 480 U.S. 228, 230 (1987); Patterson v. New York, 432 U.S. 197, 199-200 (1977), but not always, see, e.g., Mullaney v. Wilbur, 421 U.S. 684, 703-04 (1975); Keedy, supra note 9, at 86. Placing on the defendant the burden of persuasion also would avoid the risk that a jury would need to acquit if it found itself in equipoise whether the defendant intended to break the law. Further elaboration on that subject is beyond the scope of this article.
227. United States v. Bailey, 444 U.S. 394, 409-15 (1980) (discussing the defendant's evidentiary burden to properly raise a duress or necessity defense); Keedy, supra note 9, at 86.
228. Barlow v. United States, 32 U.S. 404, 411 (1833) ("[I]t results from... the extreme danger of allowing such excuses to be set up for illegal acts, to the detriment of the public. There is scarcely any law, which does not admit of some ingenious doubt; and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them."); see 4 WILLIAM BLACKSTONE, COMMENTARIES*45,*46; HOLMES, supra note 11, at 48-49; see also Hall & Seligman, supra note 49.
229. HOLMES, supra note 11, at 48; cf. Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910) ("'[I]n a few instances, the public welfare has made it necessary to declare a crime, irrespective of the actor's intent.' A concession of exceptions would seem to destroy the principle.").
230. Victor v. Nebraska, 511 U.S. 1, 7-22 (1994); Jackson v. Virginia, 443 U.S. 307, 317 (1979) ("A'reasonable doubt,' at a minimum, is one based on'reason.'"); Holt v. United States, 218 U.S. 245, 254 (1910) (rejecting argument that "any mere possibility" of doubt is sufficient to acquit); Perovich v. United States, 205 U.S. 86, 92 (1907); Dunbar v. United States, 156 U.S. 185, 199 (1895) (approving a jury instruction defining "reasonable doubt" as requiring that the evidence "must be so strong, as not to exclude all doubt or possibility of error, but as to exclude reasonable doubt"); Hopt v. Utah, 120 U.S. 430, 439-40 (1887) (approving a jury instruction stating that "a reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence" and that "[p]ersons of speculative minds may in almost every such case suggest possibilities of the truth being different from that established by the most convincing proof" but "the jurors are not to be led away by speculative notions as to such possibilities"); Miles v. United States, 103 U.S. 304, 312 (1880).
231. Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2319 (2009) (explaining that due process does not require the state to make post-trial DNA testing available for a convicted defendant).
232. Fed. R. Crim. P. 12.1 (requiring defense on request to provide notice of alibi defense); Fed. R. Crim. P. 12.2 (requiring defense to provide notice of insanity defense); Fed. R. Crim. P. 12.3 (same, reliance on public authority defense); Taylor v. Illinois, 484 U.S. 400, 413-16 (1988) (rejecting constitutional challenge to enforcement of defense notice-of-alibi requirement by excluding alibi witness for violating rule); Williams v. Florida, 399 U.S. 78, 80-86 (1978) (upholding over constitutional challenge pretrial notice-of-alibi requirement on defense); cf. Michigan v. Lucas, 500 U.S. 145, 153 (1991) (rejecting facial challenge to rape-shield statute requiring pretrial hearing on admissibility of complainant's past sexual conduct).
233. Herrera v. Collins, 506 U.S. 390, 398-417 (1993); Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("Federal courts are not forums in which to relitigate state trials.").
234. McMillan v. Pennsylvania, 477 U.S. 79, 89 n.5 (1986) ("From the vantage point of the Constitution, a change in law favorable to defendants is not necessarily good, nor is an innovation favorable to the prosecution necessarily bad." (quoting John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 YALE L.J. 1325, 1361 (1979))).
235. Patterson v. New York, 432 U.S. 197, 208 (1977).
236. United States v. U.S. Gypsum Co., 438 U.S. 422, 441 n.17 (1978) ("The possibility that those subjected to strict liability will take extraordinary care in their dealings is frequently regarded as one advantage of a rule of strict liability," but "where the conduct proscribed is difficult to distinguish from conduct permitted and indeed encouraged, as in the antitrust context, the excessive caution spawned by a regime of strict liability will not necessarily redound to the public's benefit.").
237. HOLMES, supra note 11, at 47.
238. Hall & Seligman, supra note 49, at 649.
239. The most common examples are traffic offenses, but the commercial world is relevant, too.
240. Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 AM. CRIM. L. REV. 1359, 1382-83 (2009).
241. "[Deferred prosecution agreements] and [nonprosecution agreements] do look great when compared to full enforcement of the law, but full enforcement of the law is unthinkable. Every Fortune 500 company presumably has had at least one employee who violated a federal criminal law while carrying out his duties. The law of corporate crime thus makes every Fortune 500 company subject to prosecution, conviction, and punishment. In addition to the reputational damage a criminal conviction is likely to bring, conviction may bar a company from obtaining needed business licenses, holding a national bank franchise, receiving Medicaid and Medicare payments, auditing the accounts of publicly traded corporations, and contracting with the government.
242. The respondeat superior standard apparently empowers the Justice Department to put most American companies out of business and to bring the economy to a standstill-and to do so just as other federal agencies are bolstering failing companies to keep the economy from coming to a standstill." (footnote omitted)); see also Lazarus, Assimilating Environmental Protection, supra note 58, at 882-83 ("Full compliance with all applicable environmental laws is consequently the exception rather than the norm. Just as the EPA rarely meets congressional aspirations in meeting all of the deadlines in environmental laws-it meets roughly fourteen percent of all congressional deadlines-industry rarely meets all of those aspirations as reflected in the statutory and regulatory requirements themselves.
243. Nor does government itself or its contractors-as in Rocky Flats-strictly comply with environmental requirements. In a recent survey, two-thirds of all corporate counsel reported that their companies have recently been in violation of applicable environmental laws." (footnote omitted)). Plus, widely followed, customary, unchallenged practices in the commercial, financial, or manufacturing industries over time can assume a presumption of legitimacy. That is particularly important where the law permits, or even encourages, competition among rivals and where it may be difficult to draw a line between lawful and unlawful conduct. Disagreements with how private parties see that line are better addressed administratively or civilly than criminally. See U.S. Gypsum Co., 438 U.S. at 441 n.17.
244. Hall, supra note 11, at 325-359 (discussing strict liability); Sayre, supra note 56, at 79.
245. HOLMES, supra note 11, at 47.
246. Holmes, supra note 62.
247. Cass, supra note 10, at 692-693.
248. Holmes criticized this defense on the ground that it irrationally equated the failure to learn the law with its violation. For a related version of this argument see id.
249. HOLMES, supra note 11, at 48, 50, 57-58.
250. LAFAVE, supra note 11, §§ 1.3, 5.4; Hart, supra note 138, at 421-22 (discussing why negligence is a disfavored basis for criminal liability); Keedy, supra note 9, at 84-85; Otto Kirchheimer, Criminal Omissions, 55 HARV. L. REV. 615, 638 (1942); Pilcher, supra note 138, at 1-2; Sayre, supra note 56, at 72.
251. Hart, supra note 138, at 404.
252. To engage knowingly or recklessly in conduct which is wrongful in itself and which has, in fact, been condemned as a crime is either to fail to comprehend the community's accepted moral values or else squarely to challenge them. The maxim, Ignorantia legis neminem excusat, expresses the wholly defensible and, indeed, essential principle that the action, in either event, is blameworthy. If, however, the criminal law adheres to this maxim when it moves from the condemnation of those things which are mala in se to the condemnation of those things which are merely mala prohibita, it necessarily shifts its ground from a demand that every responsible member of the community understand and respect the community's moral values to a demand that everyone know and understand what is written in the statute books. Such a demand is toto coelo different. In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact. Id. at 419.
253. BRICKEY, supra note 104, at 25. Jerome Hall offers an additional defense of the rule. In his view, allowing this defense would undermine the role of the courts by making each person the arbiter of his own conduct. See Hall, supra note 9, at 18-20. That concern, however, is "exaggerated." Cass, supra note 10, at 692-93.
254. By exempting a defendant from punishment on the ground that he operated under a mistaken belief as to the law, courts would not abdicate their role in interpreting the law any more than they do by excepting from punishment one who acted under an impression of the law sufficiently far from correct to render the defendant insane. In either case, the court declares what the law is but also declares that the defendant is not criminally liable for violating it. The court thus remains law-declarer in theory; allowing mistake of law to excuse will not impair the law-declaring function of the courts in practice unless it impairs obedience to the law declared. If allowing ignorance of a law to excuse would not lessen the deterrent effect of the law, then allowing a mistaken belief concerning the meaning of a law to excuse should have no greater adverse effect.
255. Id. at 694.
256. See supra notes 91-98 & 151-60 and accompanying text.
257. From 1660 to 1860 (and in scattered instances thereafter) the English courts exercised authority to declare as crimes certain actions that were deemed contra bonos mores. HALL, supra note 11, at 179. By contrast, federal courts have lacked power to create common law crimes almost from the start. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812).
258. United States v. Evans, 333 U.S. 483, 485 (1948) (refusing to allow a criminal penalty to be imposed on conduct when Congress had outlawed it, but had not clearly defined what the penalty should be).
259. HALL, supra note 11, at 25; see id. at 27-69; see also Rogers v. Tennessee, 532 U.S. 451, 467-68 (2001) (Scalia, J., dissenting). A corollary is that no one can be convicted of a crime without sufficient evidence proving his guilt. See Jackson v. Virginia, 443 U.S. 307, 316 (1979); Thompson v. Louisville, 362 U.S. 199, 204 (1960).
260. HALL, supra note 11, at 63.
261. Id. at 59.
262. The Ex Post Facto Clauses, U.S. Const. art. I, § 9, cl. 3 and art I, § 10, cl. 1, keep federal and state legislators from passing a new criminal statute to ban past conduct or to enhance the penalties already on the books. Those provisions do not apply to the courts, see, e.g., Rogers v. Tennessee, 532 U.S. 451, 456 (2001), but the Due Process Clause imposes the same type of restriction on courts by not allowing them to adopt an unforeseeable interpretation of a penal law, see, e.g., id. at 458-62; Marks v. United States, 430 U.S. 188, 192 (1977); Douglas v. Buder, 412 U.S. 430 (1973); Rabe v. Washington, 405 U.S. 313 (1972); Bouie v. City of Columbia, 378 U.S. 347 (1964).
263. Screws v. United States, 325 U.S. 91, 96 (1945) (plurality opinion) ("To enforce such a [vague] statute would be like sanctioning the practice of Caligula, who'published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it.'"); Hall & Seligman, supra note 49, at 650 n.39 ("[W]here the law was not available to the community, the principle of'nulla poena sine lege' comes into play.").
264. 306 U.S. 451, 453 (1939) (footnote omitted).
265. Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
266. United States v. Harriss, 347 U.S. 612, 617 (1954).
267. Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972).
268. Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352 (1983); Grayned v. City of Rockville, 408 U.S. 104, 108-09 (1972); Bouie v. City of Columbia, 378 U.S. 347 (1964); see United States v. Reese, 92 U.S. 214, 221 (1876) ("It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.").
269. Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960).
270. Discussing the historical development of the void-for-vagueness doctrine). The Supreme Court has applied the doctrine with particular severity if the statute deters the exercise of constitutional rights. See, e.g., Colautti v. Franklin, 439 U.S. 379, 390-94 (1979) (abortion); Smith v. Gougen, 415 U.S. 566, 573 (1974) (First Amendment Free Speech Clause).
271. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); Boyce Motor Lines v. United States, 342 U.S. 337, 342 (1952); Papachristou, 405 U.S. 156; Screws v. United States, 325 U.S. 91, 101-02 (1945) (plurality opinion) ("[T]he requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.... The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware."); cf. Colautti, 439 U.S. at 394-96 (asserting lack of a scienter requirement exacerbates the problem of a vague law).
272. Packer, supra note 63, at 123 ("The dissenting opinion [in Screws] pointed out that importing a mens rea requirement into the definition of the offense did nothing to make the definition more precise. Accepting the'decent advance notice' rationale for the vagueness requirement, the dissenters asked how it could help to be told that you must not do something'willfully' if you are not told what that something is. Their question seems unanswerable." (footnotes omitted)).
273. Those exceptions describe the scenarios in which the Supreme Court has not been troubled by application of strict liability principles. See, e.g., United States v. Park, 421 U.S. 658 (1975) (maintenance of rat-infested food warehouses); United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971) (transportation of hazardous waste); United States v. Freed, 401 U.S. 601 (1971) (possession of hand grenades); United States v. Dotterweich, 320 U.S. 277 (1943) (mislabeled sale of drugs). The Court's decision in United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820), is an instance in which the Court was untroubled by the reach of a criminal statute outlawing "piracy," because the Court found the interpretation of that term to be the same throughout the world. See infra text accompanying notes 269-73 (discussing Smith).
274. Papachristou, 405 U.S. 156; Coates v. Cincinnati, 402 U.S. 611 (1971); Shuttlesworth v. Birmingham, 382 U.S. 87 (1965).
275. Lanzetta v. New Jersey, 306 U.S. 451 (1939).
276. Chicago v. Morales, 527 U.S. 41 (1999).
277. "The crux of the case against ignorantia legis thus is embodied in this question: If it is inconsistent with basic notions of fairness to penalize one for an act that, because of the nonexistence, inaccessibility, or vagueness of the law, the actor believed legal when done, why is it fair to punish one who is ignorant of the law for any other reason?" Cass, supra note 10, at 689.
278. Packer, supra note 63, at 123 (footnotes omitted). Professor Cass agrees. An early objection to ignorantia legis was that it embodied the same unfairness as ex post facto laws, at least when applied to ignorance of "positive regulations, not taught by nature." An author surveying American customs and institutions and comparing them with their European counterparts wrote in 1792: "Where a man is ignorant of [a positive regulation], he is in the same situation as if the law did not exist. To read it to him from the tribunal, where he stands arraigned for the breach of it, is to him precisely the same thing as it would be to originate it at the time by the same tribunal for the express purpose of his condemnation." Cass, supra note 10, at 687 (footnotes omitted).
279. J. BARLOW, ADVICE TO THE PRIVILEGED ORDERS IN THE SEVERAL STATES OF EUROPE (1792), reprinted in 3 THE ANNALS OF AMERICA 504, 511 (1968).
280. Cass, supra note 10, at 692-93; Hughes, supra note 56, at 602; Packer, supra note 63, at 109.
281. Hart, supra note 138, at 420 ("To condemn a layman as blameworthy for a default of technical judgment in a matter which causes trouble even for professional judges is, in many cases, so manifestly beyond reason that courts have developed various makeshift devices to avoid condemnation in particular situations."). This problem is exacerbated when only a judicial decision can resolve whether certain conduct actually is criminal.
282. P.J. FITZGERALD, CRIMINAL LAW AND PUNISHMENT 122 (1962).
283. Cass, supra note 10, at 684; Packer, supra note 63, at 109.
284. Cass, supra note 10, at 684; Packer, supra note 63, at 108-09; cf. Linkletter v. Walker, 381 U.S. 618, 637 (1965) (refusing to apply retroactively the exclusionary rule adopted in Mapp v. Ohio, 367 U.S. 643 (1961), by stating: "We cannot say that this [deterrent] purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved.").
285. United States v. U.S. Gypsum Co., 438 U.S. 422, 441 n.17 (1978); supra note 150.
286. Chapman v. United States, 500 U.S. 453, 465 (1991) ("Every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees.").
287. Alexis De Tocqueville, DEMOCRACY IN AMERICA (1835) ("Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.").
288. 355 U.S. 225 (1957).
289. In an unusual move, the Court appointed an amicus curiae to argue on behalf of Lambert, along with her own attorney. The Court also had the case carried over for reargument, another rare occurrence. Id. at 227.
290. Id. at 229-30; see Hart, supra note 138, at 419-20 (discussing need to inform the public of an offense that is both a malum prohibitum offense and a crime of omission); Hughes, supra note 56, at 636 (discussing the same).
291. Lambert, 355 U.S. at 228 (citing Walker v. City of Hutchinson, 352 U.S. 112 (1956); Covey v. Town of Somers, 351 U.S. 141 (1956); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)).
292. Id. at 228-230.
293. Id. at 228.
294. Id.
295. Id.
296. Id.
297. Id.
298. Id.
299. Id. at 230. Interestingly, the reference to a law "written in print too fine to read" is reminiscent of the Court's reference in Screws v. United States, 325 U.S. 91, 96 (1945) (plurality opinion), to Caligula's practice of publishing laws in a very small print. Screws was a void-for-vagueness case that, like Lambert, was written by Justice William O. Douglas.
300. Justice Frankfurter predicted in his dissent that the majority opinion would become "an isolated deviation from the strong current of precedents-a derelict on the waters of the law." Lambert, 355 U.S. at 355 (Frankfurter, J., dissenting).
301. The classic statement of the value of a mens rea requirement is found in Morissette. There, the defendant took rusted bomb casings he found in a field that happened to be federal property. Prosecuted for theft, he sought to defend by establishing a good-faith belief that he believed the casings to have been abandoned. The trial and circuit courts rejected his defense, but the Supreme Court concluded that he was entitled to present it to the jury. In so ruling, the Court went on at length about the role and value of mens rea in the criminal law: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will." Common-law commentators of the Nineteenth Century early pronounced the same principle, although a few exceptions not relevant to our present problem came to be recognized.
302. Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. Morissette v. United States, 342 U.S. 246, 250-52 (1953) (footnotes omitted).
303. See supra text accompanying notes 72-88. As discussed below, the problem extends to the potential violation of a foreign nation's laws. See infra Part II.D.
304. Connally v. Gen. Constr. Co., 269 U.S. 385 (1926).
305. Henry Hart noted that certain "evils" attendant upon forcing parties to rely on the discretion of prosecutors are "at their most acute in the sphere of regulation of conduct which is not intrinsically wrongful," as with regulatory crimes. Hart, supra note 138, at 429. The stupidity and injustice of the thoughtless multiplication of minor crimes receives its most impressive demonstration in police stations and prosecutors' offices. Invariably, staffs are inadequate for enforcement of all the criminal statutes which the legislature in its unwisdom chooses to enact. Accordingly, many of the statutes go largely unenforced. To this extent, their enactment is rendered futile. But it proves also to be worse than futile. For statutes usually do not become a complete dead letter. What happens is that they are enforced sporadically, either as a matter of deliberate policy to proceed only on private complaint, or as a matter of the accident of what comes to official attention or is forced upon it. Sporadic enforcement is an instrument of tyranny when enforcement officers are dishonest. It has an inescapable residuum of injustice in the hands even of the best-intentioned officers. A selection for prosecution among equally guilty violators entails not only inequality, but the exercise, necessarily, of an unguided and, hence, unprincipled discretion.
306. Id. at 428-429.
307. 218 U.S. 57 (1910) (holding that a corporation can be convicted for trespass without proof of criminal intent).
308. 258 U.S. 250 (1922) (holding that a real person can be convicted of the sale of narcotics without a tax stamp without proof that he knew that the substance was a narcotic); see also United States v. Behrman, 258 U.S. 280 (1922) (Balint companion case) (holding that a physician can be convicted of distributing a controlled substance not "in the course of his professional practice" without proof that he knew this his actions exceeded that limit).
309. 320 U.S. 277 (1943) (holding that the president of a company can be convicted of distributing adulterated or misbranded drugs in interstate commerce without proof that he even was aware of the transaction).
310. Those three decisions provided the authority for the Supreme Court's later decisions in United States v. Park, 421 U.S. 658 (1975), United States v. Freed, 401 U.S. 601 (1971), and United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971). Those cases did not directly resolve a due process challenge; they found that the law set forth in Shevlin-Carpenter, Balint, and Dotterweich was still controlling. For a detailed and trenchant analysis of those cases, see Hart, supra note 138, at 429-35 & nn.70-78, and Packer, supra note 63, at 111-19.
311. The rule is slightly different in First Amendment cases. See, e.g., Smith v. California, 361 U.S. 147 (1959) (requiring proof that a bookseller knew the content of his inventory before he could be convicted of distribution of obscene materials); see generally Packer, supra note 63, at 125 (discussing Smith). But free speech concerns are not relevant to the ordinary criminal case. Vagueness challenges to laws that do not involve free speech freedoms are examined in light of the particular facts of each case because, outside the First Amendment context, a party can challenge a statute only insofar as it applies to him and must show that it identifies no standard of conduct at all. Chapman v. United States, 500 U.S. 453, 467 (1991); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982) (collecting cases).
312. Scholars such as Herbert Packer have been quite critical of the Supreme Court's failure to discuss this issue coherently. See Packer, supra note 63, at 107 ("Mens rea is an important requirement, but it is not a constitutional requirement, except sometimes."); id. at 110-11 ("The history of the problem in the Supreme Court is an unedifying example of how constitutional doctrine comes to be fashioned. There are two lines of decision that bear on the issue, one of them apparently establishing that mens rea has no constitutional significance, or very little, and the other suggesting that in some situations, at least, it has considerable significance. The odd thing about these two lines of decision is that each has developed almost without acknowledgement of the other's existence."). Writing in 1958, Henry Hart was even less kind: Despite the unmistakable indications that the Constitution means something definite and something serious when it speaks of "crime," the Supreme Court of the United States has hardly got to first base in working out what that something is. From beginning to end, there is scarcely a single opinion by any member of the Court which confronts the question in a fashion which deserves intellectual respect. Hart, supra note 138, at 429 (footnote omitted).
313. Packer, supra note 63, at 110-111.
314. supra note 200 and accompanying text.
315. The initial case in this series, Shevlin-Carpenter Co. v. Minnesota, involved only a judgment for damages for cutting timber on state land in excess of a permit. 218 U.S. 57, 64 (1910). (The Court also found that the defendants had willfully exceeded the limits of their permit and thereby committed a "legal wrong." Id. at 69.) The cases of United States v. Balint, 251 U.S. 250 (1922), United States v. Berman, 258 U.S. 280 (1922), Freed, 401 U.S. 601, and International Minerals & Chemical Corporation, 402 U.S. 558, arose on pretrial motions to dismiss the indictments, so there was neither a conviction nor a sentence in any of those cases. The International Minerals case also involved only a corporation as the defendant, so imprisonment was legally impossible. The penalty in Dotterweich was a $1,500 fine and six-months' probation. See United States v. Buffalo Pharm. Co., 131 F.2d 500, 501 (2d Cir. 1945), rev'd sub nom., Dotterweich, 320 U.S. 277. The penalty in Park also was only a fine. 421 U.S. at 666.
316. The Eighth Amendment Cruel and Unusual Punishments Clause may provide a better vehicle for constitutional analysis than the Due Process Clause. The argument would be that no one should be imprisoned without some proof of blameworthiness or malicious intent. The Supreme Court has not considered this issue under the Eighth Amendment and has signaled a willingness to reexamine old doctrines when a new constitutional provision is at issue. Compare, e.g., McGautha v. California, 402 U.S. 183 (1971) (rejecting challenge to purely discretionary capital sentencing schemes based on the Due Process Clause), with Furman v. Georgia, 408 U.S. 238 (1972) (upholding challenge based on the Eighth Amendment Cruel and Unusual Punishments Clause to purely discretionary capital sentencing schemes), and compare, e.g., Bennis v. Michigan, 516 U.S. 442 (1996), and Calero-Toledo v. Smith Pearson Yacht Co., 416 U.S. 663 (1974) (rejecting Fifth Amendment Due Process and Takings Clause challenges to pretrial seizure and forfeiture laws), with Austin v. United States, 509 U.S. 602 (1993) (holding the Eighth Amendment Excessive Fines Clause prohibits excessive forfeitures).
317. Dotterweich, 320 U.S. at 285 (quoting Nash v. United States, 229 U.S. 373, 378 (1913)).
318. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
319. Moral, rather than crassly utilitarian, considerations re-enter the picture when the claim is made, as it sometimes is, that strict liability operates, in fact, only against people who are really blameworthy, because prosecutors only pick out the really guilty ones for criminal prosecution. This argument reasserts the traditional position that a criminal conviction imports moral condemnation. To this, it adds the arrogant assertion that it is proper to visit the moral condemnation of the community upon one of its members on the basis solely of the private judgment of his prosecutors. Such a circumvention of the safeguards with which the law surrounds other determinations of criminality seems not only irrational, but immoral as well....
320. But moral considerations in a still larger dimension are the ultimately controlling ones. In its conventional and traditional applications, a criminal conviction carries with it an ineradicable connotation of moral condemnation and personal guilt. Society makes an essentially parasitic, and hence illegitimate, use of this instrument when it uses it as a means of deterrence (or compulsion) of conduct which is morally neutral. This would be true even if a statute were to be enacted proclaiming that no criminal conviction hereafter should ever be understood as casting any reflection on anybody. For statutes cannot change the meaning of words and make people stop thinking what they do think when they hear the words spoken. But it is doubly true-it is ten-fold, a hundred-fold, a thousand-fold true when society continues to insist that some crimes are morally blameworthy and then tries to use the same epithet to describe conduct which is not. Hart, supra note 138, at 424 (footnote omitted).
321. Hartman v. Moore, 547 U.S. 250, 263 (2006) (noting there is a presumption of regularity afforded to prosecutorial decisionmaking). Whether police and prosecutors in other countries are entitled to that same presumption is an entirely different question. Corruption may be a fact of life in some foreign nations. Even isolated instances of corruption, however, can have a massive detrimental effect on the poor souls who get ensnared in a foreign land by a rancid criminal justice system.
322. Andrea del Sarto, in ROBERT BROWNING, MEN AND WOMEN 184 (Oxford University Press, 1972) (1855).
323. United States v. Leon, 468 U.S. 897 (1984); supra note 43 (collecting "reasonable mistake" cases).
324. Bryan v. United States, 524 U.S. 184, 191 (1998); Cheek v. United States, 498 U.S. 192, 200 (1991). By contrast, the term "knowingly" requires only proof of knowledge of the facts constituting the offense, not additional proof of knowledge that those acts are unlawful. See, e.g., Rogers v. United States, 522 U.S. 252, 254-55 (1998) (plurality opinion); Staples v. United States, 511 U.S. 600, 602 (1994); United States v. Bailey, 444 U.S. 394, 408 (1980).
325. supra note 125.
326. Bates v. United States, 522 U.S. 23, 29 (1997) (declining to interpret a statute to include proof of "intent to defraud" when the text imposes no such requirement); United States v. Wells, 519 U.S. 482, 490 (1997) (declining to require proof of "materiality" of falsehood as an element of the crime of knowingly making a false statement to a federally insured bank when the text imposes no such requirement).
327. For a discussion of some of those issues, see Hall, supra note 9, at 18-44.
328. supra note 20.
329. See Keedy, supra note 9, at 84-85, 95; Perkins, supra note 11, at 52-53. For the different positions on that issue, see United States v. Barker, 546 F.2d 940, 948 & n.23 (D.C. Cir. 1976). The qualified immunity doctrine recognized in Harlow v. Fitzgerald, 457 U.S. 800 (1982), provides a useful example of how the doctrine would operate. See Malley v. Briggs, 475 U.S. 335, 341 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.").
330. See supra note 128. By contrast, a mistake of law defense could be asserted in conjunction with a claim of self-defense. For example, suppose a jurisdiction requires the victim of an assault to flee before using force in his defense. If a person reasonably believed that he did not have to flee before defending himself in such a jurisdiction, he would be entitled to present his mistake of law defense to the jury.
331. The rationale for allowing a mistake of fact defense to the alleged violation of a regulation is especially powerful in the case of state and local rules. See Hall & Seligman, supra note 49, at 660.
332. See supra note 140.
333. Each state may exercise sovereign power only within its own defined jurisdiction. See Bonaparte v. Tax Court, 104 U.S. 592, 594 (1881) ("No State can legislate except with reference to its own jurisdiction.").
334. Those provisions are (1) the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, see, e.g., Healy v. The Beer Institute, 491 U.S. 324 (1989); (2) the Due Process Clause, U.S. Const. amend. XIV, § 1, see, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); and (3) the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, see, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); New York Life Ins. Co. v. Head, 234 U.S. 149, 161 n.1 (1914) (collecting cases). Also relevant are the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment. They guarantee that each state will treat all persons within its jurisdiction in the same manner as state residents. E.g., Toomer v. Witsell, 334 U.S. 385, 395-403 (1948). Those sections would be unnecessary if each state could govern its own residents wherever they may be.
335. Such as where a party takes an act in one state that has an effect on another state.
336. Congress may provide for the defense of the nation from invasion, U.S. Const. art. I, § 8, cl. 15; see also U.S. Const. art. I, § 8, cl. 17 ("[T]o exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals"); U.S. Const. art. I, § 9, cl. 2 ("The... Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."); regulate foreign commerce, U.S. Const. art. I, § 8, cl. 3; tax imports and exports, U.S. Const. art. I, § 8. cl. 1; outlaw conduct on the "High Seas" and even in foreign lands, U.S. Const. art. I, § 8, cl. 10; and empower the military to take aggressive action beyond our shores, U.S. Const. art. I, § 8, cl. 11 ("To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"); U.S. Const. art. I, § 8, cl. 12 ("To raise and support Armies"); U.S. Const. art. I, § 8, cl. 13 ("To provide and maintain a Navy"). The President is made the commander-in-chief of the nation's military forces. U.S. Const. art. II, § 2, cl. 1. He also has the power, with the Senate's advice and consent, to enter into treaties and to appoint and receive ambassadors.
337. U.S. Const. art. II, § 2, cl. 2; U.S. Const. art. II, § 3. Finally, the President is vested with the power to execute whatever laws and treaties the Congress may adopt affecting foreign relations. U.S. Const. art. II, § 3. A dramatic illustration of the difference between the states and the federal government can be seen in Article I, Section 10, Clause 1, which forbids a state from "enter[ing] into any Treaty, [or] Alliance." U.S. Const. art. I, § 10, cl. 1.
338. For a collection of the laws that apply extraterritorially.
339. Charles Doyle, EXTRATERRITORIAL APPLICATION OF AMERICAN CRIMINAL LAW (Cong. Res. Serv., CRS Report for Congress Order Code 94-166 A, Aug. 11, 2006).
340. EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991).
341. See Blackmer v. United States, 284 U.S. 421, 437-38 (1932) ("What in England was the prerogative of the sovereign in this respect, pertains under our constitutional system to the national authority which may be exercised by the Congress by virtue of the legislative power to prescribe the duties of the citizens of the United States."); Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004); United States v. Bennett, 232 U.S. 299, 305-06 (1914); Ware v. Hylton, 3 U.S. 199, 281 (1796) (separate opinion of Wilson, J.).
342. Bigelow v. Virginia, 421 U.S. 809, 822-24 (1975); Bonaparte v. Tax Court, 104 U.S. 592, 594 (1881).
343. Skiriotes v. Florida, 313 U.S. 69, 72-73 (1941); Blackmer v. United States, 284 U.S. 421, 437 (1932); Cook v. Tait, 265 U.S. 47, 54-56 (1924); United States v. Bowman, 260 U.S. 94, 97 (1922) (collecting cases).
344. 16 U.S.C. § 701 (2006).
345. United States v. McNab, 331 F.3d 1228, 1238 (11th Cir. 2003); United States v. Todd, 735 F.2d 146, 149 (5th Cir. 1984); Rupert v. United States, 187 F. 87, 89-90 (8th Cir. 1910); United States v. Molt, 452 F. Supp. 1200, 1203 (E.D. Pa. 1978), aff'd, 599 F.2d 1217, 1218-20 (3d Cir. 1979); S. Rep. No. 97-123, at 2 (1981); S. Rep. No. 91-526, at 1-2 (1969).
346. Lacey Act Amendments of 1981, 16 U.S.C. §§ 1371-78 (2006); see, e.g., McNab, 331 F.3d at 1238; United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 830 & n.9 (9th Cir. 1989); United States v. Rioseco, 845 F.2d 299, 302 (11th Cir. 1988); United States v. Bryant, 716 F.2d 1091, 1093 & n.1 (6th Cir. 1983); Molt, 452 F. Supp. at 1203, aff'd, 599 F.2d at 1218-20; S. Rep. No. 91-526, at 1-2.
347. Molt, 452 F. Supp. at 1203, aff'd, 599 F.2d at 1218-20; S. Rep. No. 91-526, at 12.
348. 16 U.S.C. § 3371(d).
349. 16 U.S.C. § 3372(a)(2)(A). That provision has been the source of some litigation. See United States v. Lee, 937 F.2d 1388, 1393-94 (9th Cir. 1991) (collecting cases rejecting delegation challenge to the Lacey Act).
350. 331 F.3d 1228.
351. Id. at 1232-1233.
352. Id. at 1233.
353. The minister, the vice minister, the director of legal services, the director of legal affairs, the secretary general of the SAG [the Secretaria de Agricultura y Ganaderia], the director general of the DIGEPESCA [the Direccion General de Pesca y Acuicultura], and the legal advisor for the Servicio Nacional de Sanidad Agropecuaria (SENASA) [an agency within the SAG that is responsible for the enforcement of hygiene
354. Id. at 1233-1235.
355. Id. at 1235.
356. Id. at 1239.
357. 16 U.S.C. § 3372(a)(2)(A) (2006).
358. McNab, 331 F.3d at 1239.
359. Id. ("The defendants contend that the Honduran laws that served as predicates for their convictions were invalid. Specifically, they argue that (1) Resolution 030-95, which established a 5.5-inch size limit for lobsters, never had the effect of law, because it was promulgated improperly and has been declared void by the Honduran courts; (2) Regulation 0008-93, which established inspection and processing requirements for the lobster fishing industry, was repealed in 1995, prior to the time period covered by the indictment; and (3) Article 70(3), which prohibits the harvesting and destruction of lobster eggs, was misinterpreted by the district court and was repealed retroactively in 2001.").
360. Id. at 1240.
361. Id.
362. Id. at 1241.
363. Id. at 1242.
364. Id. The court did state, "such is not the case here." Id.
365. Id.
366. The basis for the defendants' argument that Resolution 030-95 never was a valid law is an opinion from the Honduran Court of the First Instance of Administrative Law. In May of 2001 the Honduran administrative law court found that Resolution 030-95 had been promulgated through an incorrect procedure and ordered that the resolution was entirely voided, but this is only for purposes of [its] annulment and future inapplicability: This Resolution does not confer any right to claims.... Subsequently, the Honduran Court of Appeals for Administrative Law affirmed the lower court's decision invalidating Resolution 030-95. Id. at 1243 (internal quotation marks omitted) (footnote omitted).
367. Id.
368. The affidavit of the assistant attorney general of Honduras indicates that the decision annulling Resolution 030-95 does not apply retroactively and does not legalize the shipments of undersized lobsters retroactively. The attorney general of Honduras, however, offers an alternative explanation for the prospective language in the court's decision that favors the defendants. He contends that Resolution 030-95 was annulled ab initio, that it never was a valid law and, therefore, cannot serve as a basis for the defendants' convictions. Although the dissent accepts his explanation that Resolution 030-95 never was binding and that the prospective language merely protects the Honduran government from civil liability, we believe that the attorney general is extracting meaning from the Honduran court's decision that is not supported by the language of the opinion. In addition, although a report from the Honduran national human rights commissioner advised that Secretary General Paz's testimony be disqualified as legal error and that Resolution 030-95 be declared void retroactively, a subsequent meeting between the commissioner and an NMFS agent revealed that the commissioner was unaware of the factual background of the prosecution at the time he rendered his report. Furthermore, the commissioner said that he felt'pressured' by McNabb's representatives to issue a quick decision. Id. at 1243 n.28.
369. Id. at 1244 n.30 ("Article 96 of the Honduran Constitution provides,'The Law does not have retroactive effect, except in penal matters when the new law favors the delinquent or the person that is prosecuted.'" (quoting CONSTITUCIÓN DE LA REPUBLICÁ DE HONDURAS art. 96)).
370. Id.
371. Id. at 1244-1246.
372. Id. at 1246-47. Judge Fay dissented in part. He found Resolution 030-95 invalid, as the Honduran courts had concluded. Id. at 1247-51.
373. Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009).
374. Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
375. 18 U.S. 153 (1820).
376. Id. at 157 (citation omitted).
377. Id. at 158-162.
378. Id. at 160-82 (Livingston, J., dissenting). The reason for the approach, he explained, was the following: Such a mode of proceeding would be consonant with the universal practice in this country, and with those feelings of humanity which are ever opposed to the putting in jeopardy the life of a fellow-being, unless for the contravention of a rule which has been previously prescribed, and in language so plain and explicit as not to be misunderstood by any one.... It is not certain, that on examination, the crime would not be found to be more accurately defined in the code thus referred to, than in any writer on the law of nations; but the objection to the reference in both cases is the same; that it is the duty of Congress to incorporate into their own statutes a definition in terms, and not to refer the citizens of the United States for rules of conduct to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted.
379. Id. at 181-182.
380. Id. at 182.
381. Ellen S. Podgor, Overcriminalization: The Politics of Crime, 54 AM. U. L. REV. 541 (2005) (introducing a symposium of six articles about overcriminalization).
382. Hart, supra note 138, at 431.