Over‐​Criminalization of Conduct/​Over‐​Federalization of Criminal Law

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My name is Tim Lynch. I am the director of the Cato Institute'sProject on Criminal Justice. Before I get into some of thenitty-gritty details of legal doctrine, let me begin by thankingyou for the invitation to testify this afternoon. Although Ibelieve the problems of Over-Criminalization of Conduct andOver-Federalization of Criminal Law are among the most seriousproblems facing the Congress today,1 my role this afternoon, as I understandit, is to highlight a related trend in the law-and that is thedrift away from the idea of blameworthiness as a first principle ofAmerican criminal justice. That is, too often the government seeksto deny the proposition that it is unjust to inflict criminalpunishment on people who are not blameworthy. My remarks will thusfocus on that particular subject.

I. Introduction and Background

My approach to the criminal law begins with three basicpropositions. First, the power that is wielded by police andprosecutors is truly immense. A dramatic raid, arrest, orindictment can bring enormous damage to a person's life-even beforehe or she has an opportunity to mount a defense in court. Second,the term "criminal" carries a stigma. It implies that the culprithas done something that is blameworthy. Third-and relatedly-it isimportant to keep a close eye on the manner in which the governmentcreates and defines "criminal offenses." For as Harvard LawProfessor Henry Hart once noted, "What sense does it make to insistupon procedural safeguards in criminal prosecutions if anythingwhatever can be made a crime in the first place?"2 In my view, all persons of goodwillought to be disturbed by the fact that the government is nowbypassing the procedural protections of the Bill of Rights andattaching the "criminal" label to people who are not trulyblameworthy.

Let me begin by trying to clarify some terminology. In our lawschools today, the terms "intent" and "mens rea" arecommonly used in a very broad manner-as concepts that include aspectrum of mental states (ranging from purposeful conduct tostrict or vicarious liability) to be defined in statutes bypolicymakers. But for purposes of my testimony today, I will beusing those terms in a more narrow sense. As Justice PotterStewart once observed, "Whether postulated as a problem of'mens rea,' of 'willfulness,' of 'criminalresponsibility,' or of 'scienter,' the infliction of criminalpunishment upon the unaware has long troubled the fairadministration of justice."3 Today I want to advance the claim thatit is wrong to criminally punish those who were "unaware" of thefacts or rules that made their conduct unlawful. The remainder ofmy testimony will pinpoint the areas of our law where this problemis especially acute.

II. The Problem Areas

A. Ignorance of the Law is No Excuse

The sheer volume of modern law makes it impossible for anordinary American household to stay informed. And yet, prosecutorsvigorously defend the old legal maxim that "ignorance of the law isno excuse."4 Thatmaxim may have been appropriate for a society that simplycriminalized inherently evil conduct, such as murder, rape, andtheft, but it is wholly inappropriate in a labyrinthine regulatoryregime that criminalizes activities that are morally neutral. AsProfessor Henry M. Hart opined, "In no respect is contemporary lawsubject to greater reproach than for its obtuseness to thisfact."5

To illustrate the rank injustice that can and does occur, takethe case of Carlton Wilson, who was prosecuted because he possesseda firearm. Wilson's purchase of the firearm was perfectly legal,but, years later, he didn't know that he had to give it up after ajudge issued a restraining order during his divorce proceedings.When Wilson protested that the judge never informed him of thatobligation and that the restraining order itself said nothing aboutfirearms, prosecutors shrugged, "ignorance of the law is noexcuse."6 Althoughthe courts upheld Wilson's conviction, Judge Richard Posner filed adissent: "We want people to familiarize themselves with the lawsbearing on their activities. But a reasonable opportunity doesn'tmean being able to go to the local law library and read Title 18.It would be preposterous to suppose that someone from Wilson'smilieu is able to take advantage of such an opportunity."7 Judge Posner noted thatWilson would serve more than three years in a federal penitentiaryfor an omission that he "could not have suspected was a crime oreven a civil wrong."8

It is simply outrageous for the government to impose a legalduty on every citizen to "know" all of the mind-boggling rules andregulations that have been promulgated over the years. Policymakerscan and should discard the "ignorance-is-no-excuse" maxim byenacting a law that would require prosecutors to prove thatregulatory violations are "willful" or, in the alternative, thatwould permit a good-faith belief in the legality of one's conductto be pleaded and proved as a defense. The former rule is alreadyin place for our complicated tax laws-but it should also shieldunwary Americans from all of the laws and regulations aswell.9

B. Vague Statutes

Even if there were but a few crimes on the books, the terms ofsuch laws need to be drafted with precision. There is preciouslittle difference between a secret law and a published regulationthat cannot be understood. History is filled with examples ofoppressive governments that persecuted unpopular groups andinnocent individuals by keeping the law's requirements from thepeople. For example, the Roman emperor Caligula posted new lawshigh on the columns of buildings so that ordinary citizens couldnot study the laws. Such abominable policies were discarded duringthe Age of Enlightenment, and a new set of principles-knowngenerally as the "rule of law"-took hold. Those principles includedthe requirements of legality and specificity.

"Legality" means a regularized process, ideally rooted in moralprinciple, by which crimes are designated and prosecuted by thegovernment. The Enlightenment philosophy was expressed by the maximnullum crimen sine lege (there is no crime without a law).In other words, people can be punished only for conduct previouslyprohibited by law. That principle is clearly enunciated in the expost facto clause of the U.S. Constitution (article I, section 9).But the purpose of the ex post facto clause can be subverted if thelegislature can enact a criminal law that condemns conduct ingeneral terms, such as "dangerous and harmful" behavior. Such a lawwould not give people fair warning of the prohibited conduct. Toguard against the risk of arbitrary enforcement, the Supreme Courthas said that the law must be clear:

A criminal statute cannot rest upon an uncertain foundation. Thecrime, and the elements constituting it, must be so clearlyexpressed that the ordinary person can intelligently choose, inadvance, what course it is lawful for him to pursue. Penal statutesprohibiting the doing of certain things, and providing a punishmentfor their violation, should not admit of such a double meaning thatthe citizen may act upon the one conception of its requirements andthe courts upon another.10

The principles of legality and specificity operate together toreduce the likelihood of arbitrary and discriminatory applicationof the law by keeping policy matters away from police officers,administrative bureaucrats, prosecutors, judges, and members ofjuries, who would have to resolve ambiguities on an ad hoc andsubjective basis.

Although the legality and specificity requirements are supposedto be among the first principles of American criminal law, a"regulatory" exception has crept into modern jurisprudence. TheSupreme Court has unfortunately allowed "greater leeway" inregulatory matters because the practicalities of modern governancesupposedly limit "the specificity with which legislators can spellout prohibitions."11 During the past 50 years, fuzzy legalstandards, such as "unreasonable," "unusual," and "excessive," havewithstood constitutional challenge.

The Framers of the American Constitution understood thatdemocracy alone was no guarantor of justice. As James Madisonnoted, "It will be of little avail to the people that the laws aremade by men of their own choice if the laws be so voluminous thatthey cannot be read, or so incoherent that they cannot beunderstood; if they be repealed or revised before they arepromulgated, or undergo such incessant changes that no man, whoknows what the law is today, can guess what it will betomorrow."12Unfortunately, Madison's vision of unbridled lawmaking is an aptdescription of our modern regulatory state.13 For example, the EnvironmentalProtection Agency received so many queries about the meaning of theResource Conservation and Recovery Act that it set up a specialhotline for questions. Note, however, that the "EPA itself does notguarantee that its answers are correct, and reliance on wronginformation given over the RCRA hotline is no defense to anenforcement action."14 The situation is so bad that even manyprosecutors are acknowledging that there is simply too muchuncertainty in criminal law. Former Massachusetts Attorney GeneralScott Harshbarger concedes, "One thing we haven't done well ingovernment is make it very clear, with bright lines, what kinds ofactivity will subject you to . . . criminal or civilprosecution."15

The first step toward addressing the problem of vague andambiguous criminal laws would be for the Congress to direct thecourts to follow the rule of lenity in all criminal cases.16 Legal uncertaintiesshould be resolved in favor of private individuals andorganizations, not the government.

C. Strict Liability

Two basic premises that undergird Anglo-American criminal laware the requirements of mens rea (guilty mind) andactus reus (guilty act).17 The first requirement says that for anact to constitute a crime there must be "bad intent." Dean RoscoePound of Harvard Law School writes, "Historically, our substantivecriminal law is based upon a theory of punishing the vicious will.It postulates a free agent confronted with a choice between doingright and doing wrong and choosing freely to do wrong."18 According to that view,a man could not be prosecuted for leaving an airport with theluggage of another if he mistakenly believed that he owned theluggage. As the Utah Supreme Court noted in State v. Blue(1898), mens rea was considered an indispensable elementof a criminal offense. "To prevent the punishment of the innocent,there has been ingrafted into our system of jurisprudence, aspresumably in every other, the principle that the wrongful orcriminal intent is the essence of crime, without which it cannotexist."19

By the same token, bad thoughts alone do not constitute a crimeif there is no "bad act." If a police officer discovers a diarythat someone mistakenly left behind in a coffee shop, and thecontents include references to wanting to steal the possessions ofanother, the author cannot be prosecuted for a crime. Even if anoff-duty police officer overhears two men in a tavern discussingtheir hatred of the police and their desire to kill a cop, nolawful arrest can be made if the men do not take action to furthertheir cop-killing scheme. The basic idea, of course, is that thegovernment should not be in the business of punishing "badthoughts."

When mens rea and actus reus were fundamentalprerequisites for criminal activity, no person could be branded a"criminal" until a prosecutor could persuade a jury that theaccused possessed "an evil-meaning mind with an evil-doinghand."20 Thatunderstanding of crime-as a compound concept-was firmly entrenchedin the English common law at the time of the AmericanRevolution.

Over the years, however, the moral underpinnings of theAnglo-American view of criminal law fell into disfavor. Themens rea and actus reus requirements came to beviewed as burdensome restraints on well-meaning lawmakers whowanted to solve social problems through administrative regulations.As Professor Richard G. Singer has written, "Criminal law . . . hascome to be seen as merely one more method used by society toachieve social control."21

The change began innocently enough. To protect young girls,statutory rape laws were enacted that flatly prohibited sex withgirls under the age of legal consent. Those groundbreaking lawsapplied even if the girl lied about her age and consented to sexand if the man reasonably believed the girl to be over the age ofconsent. Once the courts accepted that exception to the mensrea principle, legislators began to identify other activitiesthat had to be stamped out-even at the cost of convictinginnocent-minded people.

The number of strict liability criminal offenses grew during the20th century as legislators created scores of "public welfareoffenses" relating to health and safety. Each time a person soughtto prove an innocent state-of-mind, the Supreme Court respondedthat there is "wide latitude" in the legislative power to createoffenses and "to exclude elements of knowledge and diligence from[their] definition."22 Those strict liability rulings havebeen sharply criticized by legal commentators. Professor HerbertPacker argues that the creation of strict liability crimes is bothinefficacious and unjust.

It is inefficacious because conduct unaccompanied by anawareness of the factors making it criminal does not mark the actoras one who needs to be subjected to punishment in order to deterhim or others from behaving similarly in the future, nor does itsingle him out as a socially dangerous individual who needs to beincapacitated or reformed. It is unjust because the actor issubjected to the stigma of a criminal conviction without beingmorally blameworthy. Consequently, on either a preventative orretributive theory of criminal punishment, the criminal sanction isinappropriate in the absence of mens rea.23

A dramatic illustration of the problem was presented inThorpe v. Florida (1979).24 John Thorpe was confronted by a thiefwho brandished a gun. Thorpe got into a scuffle with the thief andwrested the gun away from him. When the police arrived on thescene, Thorpe was arrested and prosecuted under a law that made itillegal for any felon to possess a firearm. Thorpe tried tochallenge the application of that law by pointing to theextenuating circumstances of his case. The appellate courtacknowledged the "harsh result," but noted that the law did notrequire a vicious will or criminal intent. Thus, self-defense wasnot "available as a defense to the crime."25

True, Thorpe was a state case from 1979. The point hereis simply to show the drift of our law. As Judge Benjamin Cardozoonce quipped, once a principle or precedent gets established, it isusually taken to the "limit of its logic." For a more recentfederal case, consider what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of possessing one round of .22 caliberammunition and for that he received minimum mandatory 15-year sentence.26 Here are the reported circumstancessurrounding his "crime."

In late fall or early winter of 1998, Yirkovskywas living with Edith Turkington at her home in Cedar Rapids, Iowa.Instead of paying rent, Yirkovsky agreed to remodel a bathroom atthe home and to lay new carpeting in the living room and hallway.While in the process of removing the old carpet, Yirkovsky found aWinchester .22 caliber, super x, round. Yirkovsky put the round ina small box and kept it in the room in which he was living inTurkington's house.

Subsequently, Yirkovsky's ex-girlfriend filed acomplaint alleging that Yirkovsky had [some of] her property in hispossession. A police detective spoke to Yirkovsky regarding theex-girlfriend's property, and Yirkovsky granted him permission tosearch his room in Turkington's house. During this search, thedetective located the .22 round. Yirkovsky admitted to police thathe had placed the round where it was found by thedetective.27

The appellate court found the penalty to be "extreme," butaffirmed Yirkovsky's sentence as consistent with existinglaw.28

Strict liability laws should be abolished because their verypurpose is to divorce a person's intentions from his actions. Butif the criminal sanction imports blame-and it does-it is aperversion to apply that sanction to self-defense and other actsthat are not blameworthy. Our criminal law should reflect the oldLatin maxim, actus not facit reum nisi mens sit rea (anact does not make one guilty unless his mind is guilty).29

D. Vicarious Liability

Everyone agrees with the proposition that if a person commands,pays, or induces another to commit a crime on that person's behalf,the person should be treated as having committed the act.30 Thus, if a husband hiresa man to kill his wife, the husband is also guilty of murder. Butit is another matter entirely to hold one person criminallyresponsible for the unauthorized acts of another."Vicarious liability," the legal doctrine under which a person maybe held responsible for the criminal acts of another, was once"repugnant to every instinct of the criminal jurist."31 Alas, the modern trendin American criminal law is to embrace vicarious criminalliability.

Vicarious liability initially crept into regulations that weredeemed necessary to control business enterprises. One of the keycases was United States v. Park (1975).32 John Park was the president ofAcme Markets Inc., a large national food chain. When the Food andDrug Administration found unsanitary conditions at a warehouse inApril 1970, it sent Park a letter demanding corrective action. Parkreferred the matter to Acme's vice president for legal affairs.When Park was informed that the regional vice president wasinvestigating the situation and would take corrective action, Parkthought that was the end of the matter. But when unsanitarywarehouse conditions were found on a subsequent inspection,prosecutors indicted both Acme and Park for violations of theFederal Food, Drug and Cosmetic Act.

An appellate court overturned Park's conviction because it foundthat the trial court's legal instructions could have "left the jurywith the erroneous impression that [Park] could be found guilty inthe absence of 'wrongful action' on his part" and that proof ofthat element was constitutionally mandated by due process.33 The Supreme Court,however, reversed the appellate ruling. Chief Justice Warren Burgeropined that the legislature could impose criminal liability on"those who voluntarily assume positions of authority in businessenterprises" because such people have a duty "to devise whatevermeasures [are] necessary to ensure compliance" withregulations.34Thus, under the rationale of Park, an honest executive canbe branded a criminal if a low-level employee in a different citydisobeys a supervisor's instructions and violates a regulation-evenif the violation causes no harm whatsoever.35

In 1994, Edward Hanousek was employed as a roadmaster for arailroad company. In that capacity, Hanousek supervised a rockquarrying project near an Alaska river. During rock removaloperations, a backhoe operator accidentally ruptured a pipeline-andthat mistake led to an oil spill into the nearby river. Hanousekwas prosecuted under the Clean Water Act even though he was offduty and at home when the accident occurred. The case promptedJustice Clarence Thomas to express alarm at the direction of thelaw: "I think we should be hesitant to expose countless numbers ofconstruction workers and contractors to heightened criminalliability for using ordinary devices to engage in normal industrialoperations."36

Note that vicarious liability has not been confined tothe commercial regulation context.37 Tina Bennis lost her car to the policebecause of the actions of her husband. The police found him in thevehicle with a prostitute.38 Pearlie Rucker was evicted from herapartment in a public housing complex because her daughter wasinvolved with illicit drugs. To crack down on the drug trade,Congress enacted a law that was so strict that tenants could beevicted if one of their household members or guests used drugs. Theeviction could proceed even if the drug activity took place outsidethe residence. Also under that federal law, it did not matter ifthe tenant was totally unaware of the drugactivity.39

Further, in some jurisdictions, the drivers of vehicles areexposed to criminal liability if any passenger bringscontraband-such as a marijuana joint-into an automobile even ifthere is no proof that the driver was aware of the contraband'sexistence.40

III. Conclusion

The federal criminal code has become so voluminous that it notonly bewilders the average citizen, but also the most ableattorney. Our courthouses have become so clogged that there is nolonger adequate time for trials. And our penitentiaries are nowoperating well beyond their design capacity-many are simplyoverflowing with inmates. These developments evince a criminal lawthat is adrift. To get our federal system back "on track," Congressshould take the following actions:

  • Discard the old maxim that "ignorance of the law is no excuse."Given the enormous body of law presently on the books, thisdoctrine no longer makes any sense.
  • Minimize the injustice of vaguely written rules by restoringtraditional legal defenses such as diligence, good-faith, andactual knowledge.
  • Restore the rule of lenity for criminal cases by enacting astatute that will explicitly provide for the "strict construction"of federal criminal laws.
  • Abolish the doctrine of strict criminal liability as well asthe doctrine of vicarious liability. Those theories of criminalliability are inconsistent with the Anglo-American tradition andhave no place in a free society.

As noted earlier, these reform measures should be only thebeginning of a fundamental reexamination of the role of the federalgovernment, as well as the role of the criminal sanction, inAmerican law.


1 For a detaileddiscussion of these issues, see Task Force on Federalization ofCriminal Law, The Federalization of Criminal Law (Chicago:American Bar Association, 1998); John Baker, "Measuring theExplosive Growth of Federal Crime Legislation," (The FederalistSociety for Law and Public Policy Studies (May 2004)); John Baker,"Nationalizing Criminal Law: Does Organized Crime Make It Necessaryor Proper?" Rutgers Law Journal 16 (1985): 495; BrianWalsh, "Doing Violence to the Law: The Over-Federalization ofCrime," Federal Sentencing Reporter 20 (June 2008): 295;Erik Luna, "The Overcriminalization Phenomenon," AmericanUniversity Law Review 54 (2005): 703.

2 Henry M. Hart,Jr., "The Aims of the Criminal Law," reprinted in In the Nameof Justice (Washington, D.C.: Cato Institute, 2009), p. 6.

3 UnitedStates v. International Minerals & Chemical Corp., 402U.S. 558 (1971) (Stewart, J., dissenting).

4 See TimothyLynch, "Ignorance of the Law: Sometimes a Valid Defense," LegalTimes, April 4, 1994.

5 Hart, "The Aimsof the Criminal Law," p. 19.

6 UnitedStates v. Wilson, 159 F.3d 280 (1998).

7 Ibid., p. 296(Posner, J., dissenting).

8 Ibid. TheWilson prosecution was not a case of one prosecutor usingpoor judgment and abusing his power. See, for example, UnitedStates v. Emerson, 46 F.Supp. 2d 598 (1999).

9 See, generally,Ronald A. Cass, "Ignorance of the Law: A Maxim Reexamined,"William and Mary Law Review 17 (1976): 671.

10 Connallyv. General Construction Company, 269 U.S. 385, 393 (1926)(internal quotation marks omitted).

11Papachristou v. City of Jacksonville, 405 U.S. 156,162-163 (1972).

12 JamesMadison, "Federalist Paper 62," in The Federalist Papers,ed. Clinton Rossiter (New York: New American Library, 1961), p.381.

13 See Robert A.Anthony, "Unlegislated Compulsion: How Federal Agency GuidelinesThreaten Your Liberty," Cato Institute Policy Analysis no. 312,August 11, 1998.

14 William L.Gardner and Adam H. Steinman, "'Knowing' Remains the Key Word,"National Law Journal, September 2, 1991, p. 28.

15 Quoted inWilliam P. Kucewicz, "Grime and Punishment," ECO(June 1993): 54.

16 Pennsylvaniahas protected its citizens from overzealous prosecutors with such alaw for many years. See 1 Pa.C.S.A. 1208.

17 Wayne R.LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed.(St. Paul, MN: West Publishing Co., 1986), pp. 193-94.

18 Quoted inMorissette v. United States, 342 U.S. 246, 250 n. 4(1952).

19 Utah v.Blue, 53 Pac. 978, 980 (1898).

20Morissette v. United States, 342 U.S. 246, 251 (1952).

21 Richard G.Singer, "The Resurgence of Mens Rea: III-The Rise and Fallof Strict Criminal Liability," Boston College Law Review30 (1989): 337. See also Special Report: FederalErosion of Business Civil Liberties (Washington: WashingtonLegal Foundation, 2008).

22 Lambertv. California, 355 U.S. 225, 228 (1957).

23 HerbertPacker, "Mens Rea and the Supreme Court," Supreme CourtReview (1962): 109. See also Jeffrey S. Parker, "The Economicsof Mens Rea," Virginia Law Review 79 (1993): 741; Craig S.Lerner and Moin A. Yahya, "'Left Behind' After Sarbanes-Oxley,"American Criminal Law Review 44 (2007): 1383.

24 Thorpe v.Florida, 377 So.2d 221 (1979).

25 Ibid., p.223.

26 SeeUnited States v. Yirkovsky, 259 F.3d 704 (2001).

27 Ibid., pp.705-706.

28 In my view,Congress should not stand by secure in the knowledge that suchprecedents exist. Justice Anthony Kennedy has made this point quitewell: "The legislative branch has the obligation to determinewhether a policy is wise. It is a grave mistake to retain a policyjust because a court finds it constitutional…. Fewmisconceptions about government are more mischievous than the ideathat a policy is sound simply because a court finds it permissible.A court decision does not excuse the political branches or thepublic from the responsibility for unjust laws." Anthony M.Kennedy, "An Address to the American Bar Association AnnualMeeting," reprinted in In the Name of Justice (Washington,D.C.: Cato Institute, 2009), p. 193.

29 See Wayne R.LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed.(St. Paul, MN: West Publishing Co., 1986), p. 212.

30 Francis BowesSayre, "Criminal Responsibility for the Acts of Another,"Harvard Law Review 43 (1930): 689, 690.

31 Ibid., p.702.

32 UnitedStates v. Park, 421 U.S. 658 (1975). Although many statecourts have followed the reasoning of the Park decisionwith respect to their own state constitutions, some courts haverecoiled from the far-reaching implications of vicarious criminalliability. For example, the Pennsylvania Supreme Court has heldthat "a man's liberty cannot rest on so frail a reed as whether hisemployee will commit a mistake in judgment." Commonwealth v.Koczwara, 155 A.2d 825, 830 (1959). That Pennsylvania ruling,it must be emphasized, is an aberration. It is a remnant of thecommon law tradition that virtually every other jurisdiction viewsas passe´.

33 UnitedStates v. Park, 421 U.S. 658, 666 (1975).

34 Ibid., p.672.

35 "[T]hewillfulness or negligence of the actor [will] be imputed to him byvirtue of his position of responsibility." United States v.Brittain, 931 F.2d 1413, 1419 (1991); United States v.Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). Seegenerally Joseph G. Block and Nancy A. Voisin, "The ResponsibleCorporate Officer Doctrine-Can You Go to Jail for What YouDon't Know?" Environmental Law (Fall 1992).

36 Hanousekv. United States, 528 U.S. 1102 (2000) (Thomas, J., dissentingfrom the denial of certiorari).

37 See Susan S.Kuo, "A Little Privacy, Please: Should We Punish Parents forTeenage Sex?" Kentucky Law Journal 89 (2000): 135.

38 Bennis v.Michigan, 516 U.S. 442 (1996).

39Department of Housing and Urban Development v. Rucker, 535U.S. 125 (2002).

40 See e.g.Maryland v. Smith, 823 A.2d 644, 678 (2003) ("[T]heknowledge of the contents of the vehicle can be imputed to thedriver of the vehicle.").

Tim Lynch

Subcommittee on Crime, Terrorism, and Homeland Security
Judiciary Committee
United States House of Representatives