Traditionally, the criminal law has distinguished sharply between actions committed with and without an evil intent. Both were necessary for conduct to amount to a crime. The rule was “actus non facit reum nisi mens sit rea”[1]—a crime consists of “a vicious will” and “an unlawful act consequent upon such vicious will.”[2] The criminal law required the government to prove that a person acted with what everyday language would term either intent to break the law or knowledge of wrongdoing.[3] Only then would conduct merit criminal punishment. Because, in Oliver Wendell Holmes’s famous aphorism, “even a dog distinguishes between being stumbled over and being kicked,”[4] the criminal law has always drawn the same distinction between the clumsy and the wicked.

If only it were that simple today. Modern criminal codes reflect a variety of technological, financial, social, and political developments that even a mind like Holmes’s could not have anticipated.[5] Unfortunately, often lost in the lengthy, technical legislation that Congress nowadays enacts to address such matters is adequate consideration of the mens rea (or scienter) elements of newly created offenses. New regulatory laws often include new federal offenses that do not make clear whether Congress has intentionally created a strict liability offense—that is, an offense that does not require proof of any intentional or knowing wrongdoing on an individual’s part—or has drafted the new criminal offense in a sloppy manner that relies on the traditional understanding that such proof is an element of every federal offense. The result is that the Supreme Court of the United States has been forced to correct Congress’s failures to ensure that the criminal law is not used to entrap morally blameless parties.[6]

As a guide for its own statutory interpretation responsibilities, as well as the ones that the lower federal courts must undertake, the Supreme Court has adopted a presumption that Congress did not intend to rid a new statute of the single element that English and American law have always treated as the dividing line between tort and criminal liability.[7] At the same time, the Court has stated on more than one occasion that Congress has the constitutional authority to dispense with mens rea and enact strict liability criminal legislation.[8] The Court has also found that Congress has done just that on a few occasions.[9] The problem, therefore, is deciding which principle applies when interpreting a particular act of Congress.

Not everyone agrees with the validity of the Supreme Court’s approach to statutory interpretation, but if the question is whether Congress intended no scienter element at all (Must a driver know that he is speeding?) or none in connection with the critical feature of the law (Must someone know that he possesses heroin, not talcum powder?), some would maintain that the Supreme Court has its presumption backwards. Strict liability criminal laws are by no means novelties, the argument starts, because they have been with us for more than a century. Congress therefore should be presumed to have intended precisely what the statutory text provides even when a straightforward reading of a law renders someone guilty who never intended to break it or had any knowledge that his conduct was even in the neighborhood of illegality. Accordingly, the argument concludes, statutes whose unadorned text creates such offenses simply reflect Congress’s judgment that the conduct at stake is no less heinous than what England and the Colonies outlawed from 1066 to 1776, the era when the English common law governed crimes in America.

The critical flaw in that theory is that it rests on two mistaken premises. The argument flows from the assumptions that Congress’s decision to use the criminal law, including the threat of imprisonment, as an enforcement tool represents both the moral decision that the pertinent, regulated conduct is wicked and the practically minded judgment that strict liability is necessary to prevent the myriad post-industrial harms facing the citizenry today.

Those assumptions are mistaken because they do not accurately reflect how Congress passes laws in today’s interest group–driven legislative process. In fact, it is far more likely that Congress (like other legislatures) imposes criminal sanctions on conduct that is not morally blameworthy simply to take advantage of existing law enforcement resources as an inspection corps rather than because the new regulated conduct is as heinous as any common-law crime. The last thing on Congress’s mind may be a moral evaluation of regulated conduct; the need to satisfy one interest group or another and the dollars-and-cents cost of doing so may have exhausted the Members’ attention spans. If so, the Supreme Court is right to presume that the omission of a mens rea element from a criminal law does not suggest that Congress intended to dispense with proof of that issue.

The Development of Strict Liability Offenses Created by Statute

Beginning in the 19th century, assemblies began to dispense with mens rea or scienter elements in criminal statutes or ordinances that were labeled “regulatory offenses” in England and “public welfare offenses” in the United States. The theory was that industrialization had generated widespread harms that no tort system could adequately recompense, demanding that the government step in as enforcer to reduce the incidence of the new types of wrongful conduct. Initially, the category of strict liability crimes was small and limited to, for example, the sale of impure or adulterated food and alcohol, building code offenses, traffic violations, and sundry other comparable low-level infractions.[10] Supreme Court Justice Robert Jackson explained the rationale for those laws as follows:

The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not [do] grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.[11]

The list of strict liability offenses grew over time. Today, the corpus of regulatory offenses is considerably larger than anyone initially envisioned.[12] Consider, for example, the environmental laws.

The contemporary environmental movement was born in the last third of the 20th century, with most of the major laws being enacted in the decade from 1969 to 1979.[13] Unlike common-law crimes such as assault or theft, but consistent with other modern regulatory schemes, the early environmental laws did not assume that the primary enforcement mechanism would be criminal prosecutions brought by the government against parties who failed to comply with the new legal regimen. Instead, the environmental laws used a traditional regulatory, top-down, command-and-control approach to govern business and industrial operations that discharged pollutants into the air, water, or ground. The primary enforcement devices were to be government-initiated administrative or civil actions along with private lawsuits brought against alleged wrongdoers. There were some strict liability criminal provisions in the early federal environmental laws, but they started out as misdemeanors; Congress did not elevate them to felonies until later.[14]

By doing so, Congress changed the nature of those offenses. Traditionally, imprisonment had been an optional penalty only for serious wrongdoing.[15] Now it could be used as a punishment without proving that a defendant intended to break the law or knew that his conduct was blameworthy or dangerous. The result was to make it easier to convict and imprison a defendant than would be true were those crimes treated in the same manner as ordinary federal offenses. The stiffer penalties, coupled with the creation of a criminal enforcement program at the Environmental Protection Agency (EPA),[16] upped the ante for large companies and the individuals they employ.[17]

The Development of Strict Liability Offenses Created by Regulation

The creation of administrative agencies to implement environmental and other regulatory programs also added a new feature to the category of public welfare offenses: crimes defined by regulations. That phenomenon was not the inevitable consequence of creating administrative agencies or authorizing them to promulgate regulations. Articles I, II, and III of the Constitution strongly imply that the legislative, executive, and judicial powers can be exercised only by the particular branch to which they are assigned.[18] The Supreme Court could have ruled that the power to define federal crimes is a prerogative of Congress, which it can no more delegate to administrative agencies than to the federal courts, a principle that the Court endorsed in 1812.[19]

Nonetheless, the Court declined the opportunity. It ruled instead almost a century later in United States v. Grimaud[20] that Congress does not unconstitutionally delegate legislative powers to an agency by allowing it to define conduct that is punished as a crime.[21] Grimaud erased any hope of building a dam that could have held back administrative criminal lawmaking, and federal agencies have taken full advantage of that new power. Some commentators have estimated that the Code of Federal Regulations contains hundreds of thousands of regulations that serve as a tripwire for criminal liability.[22] The result is that individuals and businesses, large or small, must be aware of not only the penal code, but also a code of federal regulations that can occupy numerous shelves in any law library.[23]

That prospect is terrifying enough for people who believe that the criminal law must give the average person adequate notice of what is and is not a crime without the need to resort to legal advice to stay out of jail, but there is more. Regulations do not exhaust the number and type of administrative dictates that can define criminal liability. Agencies often construe their regulations in the course of applying them, and the interpretations that agencies give to their own rules receive a great degree of deference from the courts. The Supreme Court has explained that an agency’s reading of its own regulations should be deemed “controlling” unless that interpretation is unconstitutional or irreconcilable with the text of the regulation.[24] If an agency’s interpretations of its regulations were to be applied in a criminal prosecution, the result would be the development of a body of private agency “case law” that a person must know to be aware of the full extent of his potential criminal liability.[25]

Criticisms of Strict Liability Criminal Statutes

There has been no shortage of criticisms of strict liability offenses.[26] Common-law courts and scholars since William Blackstone have consistently and stridently disparaged liability without culpability, by which they have meant without proof of a wicked state of mind. At one time, even the Supreme Court wrote that it would shock a universal “sense of justice” for a court to impose criminal punishment without proof of a wicked intent.[27] As argued elsewhere:

Critics maintain that holding someone liable who did not flout the law cannot be justified on retributive, deterrent, incapacitative, or rehabilitative grounds. By dispensing with any proof that someone acted with an “evil” intent, strict liability ensnares otherwise law-abiding, morally blameless parties and subjects them to conviction, public obloquy, and punishment—that is, it brands as a “criminal” someone whom the community would not label as blameworthy. By imposing liability for conduct that no reasonable person would have thought to be a crime, strict liability also denies an average person notice of what the law requires. The result is to violate a principle universally thought to be a necessary predicate before someone can be convicted of a crime and to rob people of the belief, necessary for the law to earn respect, that they can avoid criminal punishment if they choose to comply with the law. By making into criminals people who had no knowledge that their conduct was unlawful, strict liability violates the utilitarian justification for punishment, since a person who does not know that he is committing a crime will not change his behavior. Lastly, strict criminal liability flips on its head the criminal law tenet that “[i]t is better that ten guilty persons escape than that one innocent suffer.” Strict liability accomplishes that result because it sacrifices a morally blameless party for the sake of protecting society. In sum, by punishing someone for unwittingly breaking the law, strict criminal liability statutes mistakenly use a legal doctrine fit only for the civil tort purpose of providing compensation as a mechanism for imposing criminal punishment. By so doing, they unjustifiably impose an unnecessary evil. Strict liability for a criminal offense is, in a phrase, fundamentally unjust.[28]

That being said, federal, state, county, and municipal legislative bodies have frequently enacted strict liability crimes over the past 150 years. In some fields, they are ubiquitous today. That fact raises two questions: Does the prevalence of strict liability offenses signal public acceptance of the need for dispensing with proof of mens rea? If so, is that due to the public’s belief that strict liability crimes involve reprehensible conduct? The next two sections answer those questions.

The Prevalence of Strict Liability Offenses Does Not Signal Widespread Belief that the Prohibited Conduct Is Morally Reprehensible

Strict liability offenses are a common feature of contemporary regulatory codes. Just ask anyone with a car. Failing to have an inspection sticker on the bumper, license plate, or windshield; speeding; not signaling for a turn; not coming to a full stop; crossing the double line; illegal or overtime parking—those and a host of other missteps can result in a ticket and a fine. Everyone who has ever driven has committed one or more of those violations at one time or another and has had to fork over whatever simoleons the local ordinance requires, so no one treats them as the mark of Cain. Of course, no one relishes paying a fine, but no one goes ballistic about a law requiring parties to pay a small penalty with no public obloquy attached. Society accepts those sanctions as a user fee or a tax that falls on someone engaged in a particular activity that (presumably) goes into a fund that underwrites the cost of one or more public services that everyone would otherwise be forced to subsidize with income taxes.[29]

That being said, if, as Josef Stalin was reputed to have said, “Quantity has a quality all its own,” the historical usage and contemporary prevalence of strict liability criminal laws might end any debate about the societal acceptance of morally blameless criminal liability. The argument would be that today’s widespread existence of strict liability laws should receive far greater weight than the views of common-law judges and ancient (or contemporary) scholars because the laws on the books are the best proof of society’s moral judgments. Those statutes, the argument concludes, supply powerful, objective evidence of widespread political endorsement of the proposition that strict liability is both legitimate and necessary to protect the public against the sequelae of industrialization.

Strict liability’s supporters, however, may not be entitled to victory based on sheer numbers alone. It is far from obvious either that the public holds public welfare offenses in the same contempt that it ordinarily reserves for felonious conduct or that society believes that those crimes should be subject to imprisonment. The public views strict liability crimes as it views traffic offenses; it treats fines for traffic infractions as taxes; and, as then-Justice Holmes once put it, “[t]axes are what we pay for civilized society.”[30] No one enjoys paying taxes, but no one treats that burden as comparable to imprisonment. Moreover, the existence of imprisonment as a statutorily authorized punishment goes only so far in proving that society has endorsed that penalty. The prevalence of the actual use of incarceration is also a relevant factor in gauging public acceptability.[31] In that regard, there is no evidence that incarceration is a commonly imposed punishment for strict liability crimes or that the public is aware how often that sanction is used.

It is a mistake to assume that all laws reflect a representative societal judgment regarding the morality of particular conduct, that the public endorses whatever statutes a legislature may pass, or that legislatures will enact laws only with the public interest in mind. Public Choice Theory certainly argues to the contrary. It maintains that, just as consumers act to benefit themselves in the commercial market, legislators and interest groups pursue their self-interest in the political market.[32] Of course, Public Choice Theory is controversial, and even its supporters would not claim that it has the same status as the law of gravity.[33] But one need not agree that self-interest is the exclusive motive for politicians’ actions to agree that it is sometimes a motive for what they do and may even be the predominant driving force for most government officials.[34]

It is worthwhile to ask why an assembly, when enacting a criminal law, would dispense with any consideration of a party’s state of mind, a factor that the criminal law has deemed critically important for centuries. The inquiry could help us learn whether strict liability laws truly reflect a representative societal judgment regarding the morality of a particular law or the conduct it regulates or whether they serve less noble interests. The answer might be troublesome for a few but illuminating for the remainder. If the strict liability criminal laws do not on balance advance the public interest, then critics and defenders of strict criminal liability may have entirely different interests at stake in the debate about the value of those statutes, may be advancing materially different concerns, and therefore may be arguing past each other. Learning why each side in that debate has taken its respective position may reveal that this legislation is merely a tradeoff of votes for political support. If so, it should be far more difficult for a government to maintain credibly that imprisonment for the violation of a strict liability law is indispensable to a regulatory program.

A strong argument can be made that statutes and municipal ordinances authorize confinement not because the legislature believes that an offense is sufficiently heinous that it merits segregating an offender from society, but for practical, cost-saving reasons.[35] A legislature or municipal council may authorize a short term of imprisonment for a regulatory offense because it prefers to use already existing, already trained, and already funded on-duty police officers to enforce a regulatory program rather than creating a new cadre of civil enforcement specialists. The latter option carries with it a fistful of considerable new expenses, such as salaries, equipment, training, medical and life insurance, pensions, office space, and so forth. To pay those bills, governments must take funds from somewhere else in the budget, find a new revenue source, or raise taxes. Politicians, however, are unlikely to find any of those options attractive.

• Shifting funds from existing appropriations to fund an entirely new undertaking exacerbates existing rivalries among elected officials for scarce public funds and makes enemies out of the private interest groups that are the losers in that battle.
• The second option—finding a new, previously untapped source of revenue—is rarely fruitful because there are few new sources out there. Even if one legislator could identify a new revenue source, other (particularly more senior) legislators would also lay claim to it for their pet projects, which would lead to the same battle that already exists in every assembly over current expenditures.
• Finally, raising taxes demands that legislators persuade the public that a new program is necessary and that they should to pay for it. Few elected officials, however, have either the rhetorical skills needed to persuade voters or the courage necessary to withstand the blowback from an angry electorate.

With those options unavailable, legislators will likely hunt for an enforcement program that does not require new expenditures. Existing police departments are an obvious choice. Most politicians are likely to decide that making the police enforce the new regulatory ordinance perfectly suits their needs. The new responsibility does not require an increase in law enforcement salaries or other out-of-pocket expenditures. The principal expense is the opportunity cost suffered by the community as law enforcement officers must dedicate a portion of their finite on-duty time to their new tasks, reducing the time they can devote to their traditional law enforcement mission. Over time, the diversion will dilute their effectiveness, which in turn could lead to an increase in the crime rate. Politicians, however, may well decide that the new police duties are cost-free to themselves, even if not to the public; that any increase in the crime rate will not occur for at least several years (read: several election cycles); and that criminologists (and political opponents) will not be able to pinpoint those new duties as the cause of any increase in crime.

Legislators also may see affirmative benefits from giving the police that job. One is that the police may be able to enforce a regulatory program more effectively than civil inspectors, even though it is only one of their many assignments, because the public treats police officers with an esteem and deference never displayed for civil inspectors.[36] The other is that making a regulatory violation a crime adds a certain respectability to the relevant field, thereby satisfying one or more interest groups by publicly declaring that the groups’ most important concerns are also society’s most important.

Legislatures also may authorize a short period of confinement for a regulatory offense for no reason other than to entice the police to treat a code violation as a serious matter instead of deeming it no more important than an overtime parking infraction. How would that happen? A potential term of confinement can induce the police to enforce regulatory laws because a violation can give rise to a valuable law enforcement statistic in the public finding battle—an arrest—that handing out a parking ticket does not.

Finally, local assemblies may believe that having local police enforce health and safety codes is a moneymaking activity. After all, police officers already are in place to patrol the community and are authorized to enforce the local code, and every fine recovered by the government is new money.

The point is not that there is something illegitimate about using law enforcement officers to enforce civil laws. The federal, state, and local governments may empower their officers to enforce the full range of provisions in the criminal and civil codes for whatever reasons those governments see fit.[37] The point is that calling a civil or administrative infraction a crime should make us wary of what elected officials are doing. Reminiscent of the joke that Abraham Lincoln told about a horse,[38] that practice should spur us to examine critically what the legislature has done. Tacking a short term of confinement onto an administrative misstep or a breach of contract is not a response signifying the same type of moral disapproval that people naturally feel at the sight of dangerous, harmful, or repulsive conduct. As explained above, that practice may simply reflect a desire to conscript existing law enforcement personnel into an administrative or civil enforcement role just to save money. A term of incarceration that exists only for economic reasons, however, is not an expression of society’s moral condemnation of the actions that constitute the underlying infractions.

That conclusion is important. The Supreme Court looks to statutes as objective evidence of contemporary moral judgments about the need for a particular sanction to serve a legitimate purpose of the criminal law.[39] Enlisting the police as civil inspectors because doing so is less expensive than hiring, training, outfitting, and paying a new regiment of government personnel does not reflect an ethical judgment; it is just a dollars-and-cents decision. To be sure, there is nothing illegitimate about enforcing the law in an efficient manner. On the contrary, government officials should regularly pursue that goal. But there should be more than mere efficiency as the justification for sending someone to prison. Authorizing and imposing incarceration on a particular individual is a moral judgment about his actions and character. Imprisonment represents an extreme form of societal condemnation, one that should be seen as necessary only when an offender is deemed not fit to live free for a certain period. No court or legislature should make that judgment just to save a few dollars here and there.

The criminal law should reflect the moral code that everyone knows by heart. Turning regulatory infractions into strict liability crimes because criminal enforcement is more efficient than civil enforcement may be fiscally responsible, but it does not reflect society’s serious, sober, and moral decision that incarceration is an appropriate sanction. If the latter is what we are concerned with, then the ubiquitous presence of strict liability crimes authorizing incarceration does not represent that type of judgment by a mature society, a judgment that finds regulatory infractions to be as serious as traditional blue- or white-collar crimes.

Conclusion

Not every statute punishing defined conduct with imprisonment represents society’s judgment that the conduct so outlawed is comparable in public or private injury and severity to the crimes that existed at common law (such as murder, rape, or robbery) or to coeval additions to that list (such as kidnapping). Assemblies may enact strict criminal liability statutes and ordinances that authorize confinement for regulatory offenses for reasons having nothing to do with the supposed heinousness of the outlawed conduct.

A legislature may decide that making regulated conduct a crime punishable by time in jail or prison is a sensible, cost-effective way to enforce an administrative program because it avoids the need to establish and underwrite a new cadre of civil inspectors who must be hired, trained, equipped, and funded on an ongoing basis. It also enables the government to take advantage of the halo that the public sees whenever it spots someone with “NYPD” or “FBI” on his raid jacket, and it draws on media attention and public support for programs that reduce crime. The possibility that motives such as those are the animating principles underlying the coupling of strict liability with incarceration requires that we not simply take for granted the asserted justification that confinement represents society’s considered moral judgment that regulatory offenses are no less odious than common-law crimes.

—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.