113D
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 12-13, 2013
RESOLUTION
RESOLVED, That the American Bar Association urges federal, tribal, state, local and territorial
governments to re-examine strict liability offenses to determine whether the absence of a mens
rea element results in imposition of unwarranted punishment on defendants who lacked any
culpable state of mind in performing acts that were not malum in se, to prescribe specific mens
rea elements for all crimes other than strict liability offenses, and to assure that no strict liability
crimes permit a convicted individual to be incarcerated.
113D
REPORT
“A core principle of the American system of justice is that individuals should not be
subjected to criminal prosecution and conviction unless they intentionally engage in inherently
wrongful conduct or conduct that they know to be unlawful. Only in such circumstances is a
person truly blameworthy and thus deserving of criminal punishment. This is not just a legal
concept; it is the fundamental anchor of the criminal justice system.”1
In 1998, the American Bar Association (ABA) Task Force on the Federalization of
Criminal Law, chaired by former Attorney General Edwin Meese, issued a report entitled “The
Federalization of Criminal Law.” The Task Force's research reveals a startling fact about the
explosive growth of federal criminal law: More than 40% of the federal provisions enacted since
the Civil War have been enacted since 1970.2
Other observers have reported that the pace of new federal criminal law enactment since
the 1998 report has continued unabated and it is estimated there are over 4,450 federal statutory
crimes and an estimated tens of thousands more in federal regulations. 3 State legislatures
nationwide, both full-time and part-time, have likewise seen the need to expand their state
criminal codes in significant fashion over the last several decades. While well-meaning and
responsive to individual bad acts, many of these new criminal laws do not make us safer.
Moreover, there is no additional funding to support new investigation and prosecution of these
new crimes.4
Neither criminal law professors nor lawyers who specialize in criminal law can know all
of the conduct that is criminalized, and it is similarly impossible for a lay person to understand
what is criminal and what is not.5 At the ABA Criminal Justice Section 2012 Fall Conference,
former Attorney General Edwin Meese noted that the immense number of laws are traps to the
unwary and threaten people who would never consider breaking the law.6
1
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 at VI (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
2
Over Criminalization of Conduct and Over-Federalization of Criminal Law: Hearing before the Subcommittee on
Crime, Terrorism and Homeland Security, Committee on the Judiciary, United States House of Representatives ,
111th Cong. 1 (2009) (statement of Stephen A. Saltzburg on behalf of the American Bar Association).
3
See 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 at 4 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent; John S. Baker, Jr., Revisiting the Explosive Growth
of Federal Crimes, Heritage Foundation L. Memo. No. 26, June 16, 2008, at 1 (finding that from 2000 through 2007
Congress enacted an average of 56.5 crimes a year).
4
See William Shepard, A Country Overburdened by Too Many Laws, CRIMINAL JUSTICE, Spring 2013, at 1.
5
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 at 4 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
6
Edwin Meese III, The Heritage Foundation Center for Legal & Judicial Studies Chairman, ‘Overcriminalization’
(Speech at ABA Criminal Justice Section 2012 Fall Conference, 26 October 2012)
http://www.abanow.org/2012/11/overcriminalization-and-reliance-on-incarceration-is-not-effective-say-criminaljustice-experts/
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113D
Legislative Limitations
Passing legislation, approving law enforcement agencies’ budgets, and conducting public
oversight hearings are the principle tools that legislators can employ to affect the crime rate.
Legislators can have a direct effect on crime by creating new crimes, upping the sentences for
offenses already on the books, or reducing the procedural or evidentiary burdens on the policy
and prosecutors. However, these limited options results in the enactment of new criminal laws
that no one expects to receive the broad construction that their text permits, even by legislators
acting solely with the public interest in mind. By contrast there is little constituency for cutting
back on the reach of criminal law.7
Beyond the rate at which new criminal offenses are being enacted, many times in
response to any newsworthy issue, two additional concerns emerge when studying the legislative
process for criminal offense: (1) lack of attention paid to and erosion of mens rea requirements
and (2) poor legislative drafting.8 Both of these practices contribute to the problems of
overbroad criminal liability and lack of fair notice that the law is supposed to provide.9
Mens rea
Because passing legislation is one of the principle tools legislators can employ to
immediately address newsworthy criminal justice problems, there are too many short-term goal
oriented federal and state criminal statutes that do not properly define the mens rea or guilty
mind elements of the crime.10 The effect of a mens rea requirement or guilty mind element
provides an offense with its normative appeal: the degree of liability and punishment will be
proportionate to culpability and limited by it.11 It is a fundamental principle of criminal law that,
before criminal punishment can be imposed, the government must prove both a guilty act (actus
reus) and a guilty mind (mens rea).12 The erosion of the mens rea requirement does not protect
individuals from punishment for making honest mistakes or engaging in conduct that was not
sufficiently wrongful to give notice of possible criminal responsibility.13
7
Paul J. Larkin, Jr., Overcriminalization: The Legislative Side of the Problem, Heritage Foundation Special Report
No. 75 at 2-3 Dec. 13, 2011, available online at
http://www.heritage.org/research/reports/2011/12/overcriminalization-the-legislative-side-of-the-problem;
8
See 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 at 5-6 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
9
See 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 at 5-6 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
10
See Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285 (2012);
Principles for Revising the Criminal Code: Hearing before the Subcommittee on Crime, Terrorism and Homeland
Security, Committee on the Judiciary, United States House of Representatives , 112th Cong. 1 (2011) (statement of
Edwin Meese III, The Heritage Foundation Center for Legal & Judicial Studies Chairman).
11
Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285, 291 (2012).
12
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 at 6-7 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
13
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 at 6-7 (2010), available online at
http://www.heritage.org/research/reports/2010/05/without-intent.
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113D
In order to ensure that only blameworthy persons are convicted, governments must reexamine strict liability offenses to determine whether the absence of a mens rea element results
in imposition of unwarranted punishment on defendants who lacked any culpable state of mind
in performing acts that were not malum in se, to prescribe specific mens rea elements for all
crimes other than strict liability offenses, and to assure that no strict liability crimes permit a
convicted individual to be incarcerated.
The common law followed the rule that a crime required the union of act and intent, and
common law crimes were limited to morally blameworthy conduct. Today a person can be
found guilty of violating a commercial, regulatory, or environmental law without proof that (1)
the person had a purpose to break the law and (2) the person’s conduct was clearly blameworthy.
Both of these elements are critical to the ability of the law to limit criminal punishments to those
who deserve it.14
Strict Liability
Supreme Court jurisprudence has moved toward stronger culpability requirements. At the
turn of the twentieth century and for several decades thereafter, strict liability was the prevailing
interpretive presumption, especially for new regulatory statutes; more recently, the Court has
generally insisted on interpreting federal felony statutes to require awareness of wrongdoing.15
In the 1952 case, Morissette v. United States, Justice Jackson defined the increasing
creation and utilization of strict liability crimes. “… [L]awmakers, whether wisely or not, have
sought to make…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… penalties commonly are relatively small, and conviction does not 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.”16
In the same case, Justice Jackson also emphatically stated “[t]he 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.”17
14
Principles for Revising the Criminal Code: Hearing before the Subcommittee on Crime, Terrorism and Homeland
Security, Committee on the Judiciary, United States House of Representatives , 112th Cong. 4 (2011) (statement of
Edwin Meese III, The Heritage Foundation Center for Legal & Judicial Studies Chairman).
15
Stephen J. Schulhofer, Criminal Justice, Local Democracy, and Constitutional Rights, 111 Mich. L. Rev. 1045,
1062 (2013) (internal citations omitted).
16
Morissette v. United States, 342 U.S. 246, 254-56 (1952) (Jackson, J.).
17
Morissette v. United States, 342 U.S. 246, 250 (1952) (Jackson, J.).
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Considered through the prisms of culpability mens rea and offense analysis, nineteenth
century crimes described as imposing strict liability under the element analysis approach are not
strict liability crimes at all because the offenses require some morally blameworthy state of
mind.18 In contrast the “new” strict liability offenses that arose in the latter half of the nineteenth
century did not, at least by their terms, require a criminal intent from even the offense analysis or
culpability mens rea perspectives.19
It is important to recognize that the “new” strict liability approach toward crimes carries
with it the dangerous potential of punishing people that are otherwise morally innocent. It is for
this reason, that the ABA is urging the re-examination of strict liability crimes.
ABA Policy
The ABA has, on a number of occasions, promoted review of policies to determine if
government action to limit or repeal criminal penalties would be appropriate. For example the
Criminal Justice Section Commission on Homelessness approved a resolution that encouraged
comprehensive review of misdemeanor provisions to determine where it would be appropriate to
change criminal penalties to civil fines or nonmonetary civil remedies.20 This is also reflected in
the ABA Standards which promote sentences for offenses being “no more severe than necessary
to achieve the societal purposes for which they are authorized.”21 The ABA’s current position is
consistent with earlier ABA resolutions and standards.
Conclusion
The erosion of the mens rea element is a significant problem and directly affects the core
principle of the American system of justice -- that individuals should not be subjected to criminal
prosecution and conviction unless they intentionally engage in inherently wrongful conduct or
conduct that they know to be unlawful.
In order to protect individuals from punishment for making honest mistakes or engaging
in conduct that was not sufficiently wrongful the ABA urges governments re-examine strict
liability offenses to determine whether the absence of a mens rea element results in imposition of
unwarranted punishment on defendants who lacked any culpable state of mind in performing acts
that were not malum in se, to prescribe specific mens rea elements for all crimes other than strict
liability offenses, and to assure that no strict liability crimes permit a convicted individual to be
incarcerated.
The intent of the Resolution is not to eliminate DUI laws but only to identify an
appropriate mental element for such offenses. Identification of an appropriate mental element
has the added benefit of drawing a bright line between acts that are appropriately punished as
criminal and acts that need not be subject to criminal penalties.
18
Alan C. Michaels, Constitutional Innocence, 112 Harv. L. Rev. 828, 839 (1999).
Alan C. Michaels, Constitutional Innocence, 112 Harv. L. Rev. 828, 840 (1999).
20
American Bar Association, Resolution 102C, Adopted ABA Annual Meeting 2010.
21
American Bar Association, Standards for Criminal Justice: Sentencing, Standard 18-2.4, 3d ed. (1994).
19
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113D
Respectfully submitted,
William Shepherd, Chair
Criminal Justice Section
August 2013
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113D
GENERAL INFORMATION FORM
Submitting Entity:
Submitted By:
Criminal Justice Section
William Shepherd, Chair
1. Summary of Resolution(s).
This resolution urges governments to re-examine strict liability offenses to determine
whether the absence of a mens rea element results in imposition of unwarranted punishment
on defendants who lacked any culpable state of mind in performing acts that were not malum
in se, to prescribe specific mens rea elements for all crimes other than strict liability offenses,
and to assure that no strict liability crimes permit a convicted individual to be incarcerated.
2. Approval by Submitting Entity.
The proposed resolution was approved by the Criminal Justice Section Council by email vote
on May 16, 2013.
3. Has this or a similar resolution been submitted to the House or Board previously?
The ABA passed Resolution 102C, adopted at the ABA Annual Meeting 2010 and Standard
18-2.4, 3d ed. (1994), both promote re-examination of law and policies to determine if
government action to limit or repeal criminal penalties would be appropriate. The ABA’s
current position is consistent with these earlier ABA resolutions and standards.
4. What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
None.
5. What urgency exists which requires action at this meeting of the House?
Individuals should not be subjected to criminal prosecution and conviction unless they
intentionally engage in inherently wrongful conduct or conduct that they know to be
unlawful. The erosion of mens rea carries with it the dangerous potential of punishing
people that are otherwise morally innocent.
6. Status of Legislation. (If applicable)
Not Applicable
7. Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
The policy will be distributed to various criminal justice stakeholders in order to encourage
and facilitate changes in the current trend towards overcriminalization. The policy will also
be featured on the Criminal Justice Section website and in Section publications.
8. Cost to the Association. (Both direct and indirect costs)
No cost to the Association is anticipated.
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113D
9. Disclosure of Interest. (If applicable)
None
10. Referrals.
At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in
the 2013 Annual Agenda Book for the House of Delegates, it is being circulated to the chairs
and staff directors of the following ABA entities:
Standing Committees
Governmental Affairs
Gun Violence
Pro Bono and Public Service
Legal Aid and Indigent Defendants
Professionalism
Ethics and Professional Responsibility
Lawyers’ Professional Liability
Federal Judiciary
Special Committees and Commissions
Commission on Civic Education in the Nation’s Schools
Center on Children and the Law
Commission on Disability Rights
Commission on Sexual and Domestic Violence
Commission on Homelessness and Poverty
Center for Human Rights
Center for Racial and Ethnic Diversity
Council for Racial and Ethnic Diversity in the Educational Pipeline
Commission on Racial and Ethnic Diversity in the Profession
Commission on Racial and Ethnic Justice
Commission on Sexual Orientation and Gender Identity
Commission on Women in the Profession
Commission on Youth at Risk
Hispanic Legal Rights and Responsibilities
Commission on Immigration
Commission on Sexual Orientation and Gender Identity
Sections, Divisions
Government and Public Sector Division
Individual Rights and Responsibilities
Judicial Division
National Conference of Federal Trial Judges
National Conference of Specialized Court Judges
National Conference of State Trial Judges
Litigation
Judicial Division
Senior Lawyers Division
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113D
State and Local Government Law
Tort Trial & Insurance Practice
Young Lawyers Division
Affordable Housing and Community Development Law
11. Contact Name and Address Information. (Prior to the meeting. Please include name, address,
telephone number and e-mail address)
William Shepherd
Holland & Knight LLP
222 Lakeview Ave. Ste 1000
West Palm Beach, FL 33401-6148
Phone: (561) 650-8338
Email: William.Shepherd@hklaw.com
12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street, NW
Washington, DC 20052-0026
Phone: (202) 994-7089; (202) 489-7464
Email: ssaltz@law.gwu.edu
Neal R. Sonnett, Section Delegate
2 S. Biscayne Boulevard, Suite 2600
Miami, FL 33131-1819
Phone: (305) 358-2000
Email: nsonnett2@sonnett.com
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113D
EXECUTIVE SUMMARY
1.
Summary of the Resolution
This resolution urges governments to re-examine strict liability offenses to determine
whether the absence of a mens rea element results in imposition of unwarranted
punishment on defendants who lacked any culpable state of mind in performing acts that
were not malum in se, to prescribe specific mens rea elements for all crimes other than
strict liability offenses, and to assure that no strict liability crimes permit a convicted
individual to be incarcerated.
2.
Summary of the Issue that the Resolution Addresses
Individuals should not be subjected to criminal prosecution and conviction unless they
intentionally engage in inherently wrongful conduct or conduct that they know to be
unlawful. This resolutions addresses the erosion of mens rea, which carries with it the
dangerous potential of punish people that are otherwise morally innocent.
3.
Please Explain How the Proposed Policy Position will address the issue
This resolution addresses the issue that individuals should not be subjected to criminal
prosecution and conviction unless they intentionally engage in inherently wrongful
conduct, by urging governments to prescribe specific mens rea elements for all crimes
other than strict liability offenses, and to assure that no strict liability crimes permit a
convicted individual to be incarcerated.
4.
Summary of Minority Views
None are known.
10