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Article Excerpt
INTRODUCTION
Over the last generation, the Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The "guilty mind" requirement now aspires to exempt all "innocent" (1) (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is "inevitably nefarious." (2) When a literal interpretation of a federal criminal statute could encompass "innocent" behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.
Although the scholarly community has been quick to embrace the goal of innocence-protection, (3) this Essay argues that federal mens rea doctrine rests on an unduly narrow conception of "innocence." To conceive of innocence-protection as merely preventing conviction for morally blameless conduct, as current doctrine does, is to miss an important dimension of moral culpability--namely, proportionality, or the idea that the punishment must be tailored to the offender's level of blameworthiness. The objection to punishing blameless acts is that the actor is not morally deserving of the blame that it is uniquely the province of the criminal law to impart. The same misalignment of blame and punishment occurs when blameworthy acts receive disproportionately severe punishment.
Consequently, if the goal really is to protect "innocence" by ruling out morally undeserved punishment, mens rea doctrine must do more than guarantee a modicum of moral blameworthiness as a precondition to punishment. It must also ensure that the acts which lead to criminal liability will be sufficiently blameworthy to deserve the sanctions imposed by the substantive offense. Only then will "innocence" truly be protected against criminal liability, and the traditional role of mens rea fulfilled.
This Essay proceeds as follows. Part I outlines the Supreme Court's current approach to mens rea, which equates "innocence" with "moral blamelessness." Part II criticizes that narrow conception of "innocence." Mens rea has traditionally ' served to prevent disproportional punishment as well as punishment of blameless conduct, and the outcomes in recent mens rea cases are indefensible without reference to the very proportionality considerations the cases treat as irrelevant.
Part III makes the case for "proportional mens rea," a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and, as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment "fits" the crime. Moreover, proportional mens tea would represent a needed counterweight to prosecutorial behavior whereas current doctrine does not. Given that federal prosecutors do not seek to charge morally blameless people, mens rea doctrine aimed only at protecting moral blamelessness from punishment will largely be redundant of prosecutorial discretion. Proportionality of punishment, however, is a concern that federal prosecutors--bound by longstanding Executive Branch mandates to seek the maximum supportable penalty in every case and oppose lenient exercises of judicial sentencing discretion--routinely ignore. Judicial mens rea selection, therefore, has a substantial contribution to make to the achievement of proportionality of punishment.
I. INNOCENCE-PROTECTION AND MENS REA
Moral innocence was not always an important factor in federal mens rea selection. For several generations, the Supreme Court treated the historic requirement of a "guilty mind" (or a morally culpable mental state) as the exception, rather than the rule, in federal criminal law. (4) In Morissette v. United States, (5) the Court held that a culpable mental state is required for the small category of crimes derived from the common law but ominously stated that "quite contrary inferences" may be warranted as to "offense[s] new to general law, for whose definition the courts have no guidance except the Act." (6) The clear implication, seized upon in later cases, (7) was that a culpable mental state may not be required for regulatory or other crimes unknown to the common law.
In Liparota v. United States (8) and subsequent cases, (9) the Supreme Court employed an entirely different approach to mens rea. Under this approach, the goal of the mens rea requirement is to protect "innocent" conduct from punishment. This goal is accomplished by requiring a culpable mental state for all crimes, regardless of their origin or status.
Staples v. United States (10) exemplifies the new approach to mens rea. The case involved a prosecution for possession of an unregistered machinegun, a crime previously classified as a public welfare offense. Citing public-safety concerns, the prosecution argued that conviction should be allowed as long as the defendant knew the item he possessed was a gun of some kind. The Court disagreed, noting that such a minimal mens rea requirement would allow prosecutors to convict the "innocent" act of possessing guns that "traditionally have been widely accepted as lawful possessions." (11)
To exempt "innocent" instances of gun possession from the statute, Staples demanded proof of a culpable mental state. To convict, the government must prove that the defendant knew the "quasi-suspect character" of his "firearm" (in Staples's case, its automatic-firing capability) that placed it outside of the category of guns that can be lawfully possessed free of government regulation. (12) Thus, far from being limited to common law crimes, the "guilty mind" requirement now applied more broadly to regulatory crimes as well. (13)
The innocence-protection the Court desires is achieved by strategically adjusting the mens rea in light of the nature of the prohibited act. Where the nature of the prohibited act, as defined by Congress, is sufficient to guarantee that anyone convicted of the crime will be morally blameworthy, courts treat the legislative definition of the crime as conclusive and do not impose heightened mens rea requirements. (14) If, however, the prohibited act is not "inevitably nefarious" (15) and thus could potentially reach innocent conduct, courts adopt more stringent mens rea requirements designed to exclude all innocent conduct from the crime's reach. (16)
Typically, as exemplified by Staples, innocence protection is achieved by requiring knowledge of all the facts that make the defendant's conduct wrongful. Although the Court perceived a threat to innocence protection in Staples, it did not require proof that the defendant knew the legal definition of "firearm," much less that it is illegal to possess unregistered "firearms." Instead, the Court required the government to prove that the defendant knew the pertinent facts--namely, the characteristics that brought his weapon within the statutory definition of "firearm." (17)
In many cases, full knowledge of the facts that make the defendant's conduct illegal will prevent conviction for morally blameless conduct. Sometimes, however, knowledge of the facts that constitute the offense will fall to exclude all "innocent" conduct from the reach of a criminal statute. These are situations of incompletely defined crimes--situations where the crime, as legislatively defined, fails to describe acts that citizens would expect to be considered wrongful. In these situations, the mental culpability (and innocence protection) the Court demands can only come from proof that the defendant knew his conduct was illegal.
The Court's commitment to innocence protection is most dramatically shown in its cases making ignorance of the law a defense to particular crimes. The most recent installment in this line of cases is Arthur Andersen LLP v. United States. (18) Arthur Andersen was charged with "corruptly persuading" its employees to destroy Enron-related documents with intent to cause those documents to be withheld from federal investigators. (19) Noting the prevalence and legitimacy of document-retention policies in the business world and the fact that lawyers often advise clients to withhold documents from investigators on privilege grounds, the Court concluded that persuading others to withhold documents from a federal investigation is "by itself innocuous" and "not inherently malign." (20) To ensure that innocent "persuasion" cannot result in punishment, the Court required proof that the "persuader" acted With "consciousness of wrongdoing." (21)
As this brief survey of current mens rea doctrine suggests, the recent mens rea cases have given rise to a dramatically different approach to mens rea in the federal system. The Supreme Court has insisted that federal crimes be defined in terms that guarantee a path to acquittal in substantive criminal law for morally blameless conduct and has increasingly looked to the mental element of crimes to provide this protection against punishment for "innocent" conduct. Thus, innocence-protection has emerged both as the overarching goal of the mental element of federal crimes and as the driving force behind federal mens rea selection.
II. WHAT IS "INNOCENCE"?
The Supreme Court, to date, has only grappled with one part of the innocence-protection problem: avoiding punishment for innocent acts. Proportionality concerns have no place in the mens tea analysis outlined by the Court. An act is either "inevitably nefarious" (22) or not; if it is, then the act is not "innocent" and heightened implied mens tea requirements are categorically ruled out. As a recent case declares, "The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from 'otherwise innocent conduct.'" (23) On this narrow view of innocence protection, federal mens tea doctrine serves only to ensure that persons subject to conviction in federal court will have committed a minimally blameworthy act.
This is not the only possible understanding of the meaning of "innocence" and of the normative aspirations of mens rea doctrine. Innocence-protection might mean more than ensuring that punishment will not be imposed for morally blameless conduct. On this broader view, the goal of mens rea would be to align guilt and punishment with the moral blameworthiness of the defendant's conduct. This conception of innocence-protection would give relevance to moral blameworthiness along two axes instead of just one: blameworthiness would not only determine who can and cannot be punished, but also how much punishment can be imposed for a blameworthy act. Innocence-protection, as thus broadly construed, would also aim to ensure that blameworthy acts will be punished in proportion to their degree of blameworthiness:
This Part contends that the innocence-protection project will not be complete until the Supreme Court explicitly adopts the broader view of innocence as the basis of mens rea doctrine. The Court's limited, culpability-focused approach reflects a fundamental misunderstanding of the role that mens rea has traditionally performed in criminal law in achieving proportional punishment for blameworthy acts. Unless corrected, the restrictive approach to mens rea selection will allow the single greatest threat to innocence in the federal system--disproportionately severe penalties--to go unaddressed.
A. Criminal Law Tradition and "Innocence"
The correctness of the broader conception of innocence-protection can be seen by examining the various ways in which mens rea has traditionally operated to delimit criminal liability. In some, mens rea serves to ensure that "normal" persons, operating under normal circumstances, (24) will not be convicted of a crime unless they committed a morally blameworthy act. In others, however, mens rea serves to distinguish among the "guilty" by determining the extent of punishment certain offenders deserve as compared to others.
In three different ways, mens rea operates to restrict guilt and punishment according to moral blameworthiness. First, the identification of a specific mens rea in the definition of the offense can remove from the ambit of a criminal statute whole categories of innocent behavior that fall within the actus reus of the crime. Contrary to Justice Jackson's colorful reference to the actus reus requirement as mandating an "evil-doing hand," (25) the actus reus of crimes is often not "evil" at all; indeed, quite often it is entirely consistent with moral, law-abiding behavior.
Consider, for example, the crime of mail fraud. The actus reus of mail fraud is not defrauding people, but rather using the mails. (26) What makes this innocuous conduct both capable and deserving of criminalization is the illicit purpose for which the mails are used--namely, to defraud others--and so Congress sensibly defined the crime as requiring proof that the mails were used "for the purpose of executing" a "scheme or artifice to defraud." (27) Legislative specification of the "guilty". purpose or motive necessary for use of the mails to constitute a crime excises categories of blameless conduct from the scope of mail fraud.
Mail fraud is not exceptional in this regard. Rather, it exemplifies an entire category of crimes known in common-law terminology as crimes of "specific intent." Generally speaking, crimes of specific intent prohibit conduct only when engaged in for some specified bad purpose or objective. (28) Absent that illicit purpose or objective, the act often will not be blameworthy, and so the requirement of specific intent guarantees that any convicted offender will have committed an act that deserves punishment.
Second, in many crimes, the specific intent requirement promotes proportionality of punishment for blameworthy conduct. In these situations, mens rea matches up the degree of blameworthiness of the offense with the severity of punishment authorized by the legislature. This serves to minimize the danger that disproportionate punishment--punishment, in other words, that is either too severe or too lenient--will be imposed for blameworthy conduct.
Homicide crimes provide a useful illustration. The actus reus of murder (the unlawful killing of a human being) is undeniably blameworthy whether or not committed with the specific intent ("malice aforethought") required by the traditional definition of murder. (29) Consequently, defining murder without reference to malice would not threaten to convict blameless persons. Nevertheless, legislatures, for good reason, have adhered to the traditional mental element for murder. (30)
The specific intent of "malice aforethought" is the means by which the law differentiates murder from the less severely punished crime of manslaughter. The presence or absence of malice has dramatic penal consequences: murder is potentially punishable by death or life imprisonment in the federal system, but the maximum penalty for manslaughter, a killing without malice aforethought, is ten years in prison. (31) Murder, therefore, represents a category of specific-intent crimes in which defining the crime in terms of a particular mental state is essential, not to exempt blameless conduct from punishment, but rather to achieve proportional punishment for blameworthy acts.
Notice that the two previously discussed ways in which specific intent serves to align guilt with blameworthiness are not mutually exclusive. In some crimes, specific intent will do double duty, exempting blameless acts from criminal liability and ensuring proportionate punishment for acts that...
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