of innocence and innocents: the supreme court and mens rea

HUSAKSINGERMACRO 8/11/99 4:34 PM

Of Innocence and Innocents:The Supreme Court and Mens

Rea Since Herbert Packer

Richard Singer and Douglas Husak*

Thirty-six years ago Professor Herbert Packer assessedthe position of the United States Supreme Court withregard to whether mens rea was constitutionally requiredbefore criminal punishment could be imposed. In a famousdeclaration, Packer announced: “To paraphrase: Mens Reais an important requirement, but it is not a constitutionalrequirement, except sometimes.”1

Recent decisions of the Court suggest that it may betime to update Packer’s work to see what, if anything, haschanged. Is there any more evidence that mens rea is nowconstitutionally required? The answer is “yes and no.” Asa matter of interpreting federal statutes, the Court hasrecently created not merely a presumption in favor of mensrea, but in favor of a “heightened” form of mens rea withregard to issues of both fact and law. If, however, the focusis on the constitutional status of mens rea, Packer’sassessment still seems valid; indeed, some commentatorshave concluded on the basis of one enigmatic decision thatthe Court appears recently to have taken the view thatmens rea is never constitutionally required.

Part I of this article will begin our detailedexamination of each of the relevant decisions since Packer’sarticle. Part II will concentrate on five of the more recentdecisions, concluding that the Court has vigorouslyreaffirmed its earlier views about the importance of mensrea and its commitment to protect innocent persons fromcriminal liability. Part III will then consider a potentiallylethal flaw in this analysis—Egelhoff v. Montana, which

* Distinguished Professor of Law, Rutgers University (Camden). Professor ofPhilosophy, Rutgers University (New Brunswick).

1. Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev.107 (1962).


862 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:861]

has been interpreted by some as allowing the states toeschew both innocence and mens rea as a constitutionalpredicate for the imposition of the criminal sanction. PartIV will briefly reflect on the movement that has occurred inthe Court in the past 36 years, and project the likely futureof mens rea; we tentatively conclude that the Court’sconcern to protect innocent persons from criminal liabilityis likely to continue and flourish.

Our endeavor to make sense of these cases depends ona distinction that should be familiar to theorists of thecriminal law. Commentators have long appreciated anambiguity in the term mens rea. Prior to the nineteenthcentury, the criminal law took seriously the requirementthat a defendant could not be found guilty of an offenseunless he acted in a malicious and malevolent way—unless, that is, his conduct manifested an “evil mind.”2

This concern with whether the conduct of the defendantmanifested an evil mind reflects a basic and fundamentalprinciple of justice: Only the blameworthy (guilty), and notthe blameless (innocent), should be punished. At commonlaw, courts enjoyed wide latitude to define the conditionsunder which conduct was innocent and thus not eligible forthe criminal sanction.

As criminal law became codified, however, courts hadless discretion to define these circumstances; theirauthority was limited to the determination of whether thestatute had been violated. By the end of the twentiethcentury, the judicial inquiry into guilt and blame thusostensibly came to be concerned with a much more narrowand constrained question: Did the defendant’s conductexpress the specific mental state—the mens rea—requiredby the statute?3 Clearly, this inquiry is conceptuallydistinct from that of the previous century. Unless astatutory mens rea term (e.g., “knowingly”) is read toabsorb implicitly the “vicious mind” of the common law, a

2. Richard Singer, The Resurgence of Mens Rea: I—Provocation, EmotionalDisturbance, and the Model Penal Code, 27 B.C.L. Rev. 243 (1986) [hereinafterSinger I].

3. Id. at 244.


1999] OF INNOCENCE AND INNOCENTS 863

defendant may not have an evil mind even though hesatisfies the degree of culpability required by a statute;similarly, a defendant may have an evil mind even thoughhe does not satisfy the degree of culpability required by thestatute.4 This important shift in the mens rea inquiry hasthreatened to lose sight of the basic and fundamentalprinciple of justice that guided judgments of the courts inthe nineteenth century: that innocent conduct should bespared from criminal sanctions.

What is less often appreciated, however, is the extentto which these two inquiries are related. Attempts tounderstand whether and which culpability requirement isto be inserted into a statute, or how a culpability termshould be interpreted and applied, or under whatcircumstances a state can enact various kinds of rules toreduce the state’s burden to prove culpability, arefrequently guided by the court’s desire to preserve mens reain the older, wider sense. In other words, the concern toprotect the innocent continues to guide the judgments ofcourts. Indeed, our reading of the decisions since Packer’sarticle—and certainly of those in the past decade or so—persuades us that the United States Supreme Court hasrecently reinvigorated its concern to protect innocentpersons as a bedrock of federal criminal law.5 We aremildly dismayed, but not panicked, by a single recent casewhich may undermine that analysis with respect to theconstitutional issue.

4. Thus, some commentators distinguish between formal and substantiveconceptions of strict liability and contend that instances of the former—whichpunish persons despite their absence of mens rea—might be compatible withretributive theories of blame. See Kenneth W. Simons, When Is Strict CriminalLiability Just? 87 J. Crim. L. & Criminology 1075 (1997).

5. Not all commentators have recognized this concern. In characterizing “asa myth” the claim that “individualized moral blameworthiness [is] an unalterablefundamental of the criminal law,” Professor Louis Bilionis concludes that“[c]riminal law is not nearly the stickler for individualized moralblameworthiness that [Henry] Hart mythicized.” Louis Bilionis, Process, TheConstitution, and Substantive Criminal Law, 96 Mich. L. Rev. 1269, 1278-79(1998).



I: THE POST-PACKER CASES

A. 1962-1984: The Court Equivocates

Professor Packer cogently reviewed the five mostimportant Supreme Court decisions extant at the time ofhis writing: Shevlin-Carpenter Co. v. Minnesota,6 UnitedStates v. Balint,7 United States v. Dotterweich,8 Morrissettev.United States,9 and Lambert v. California.10 We will notrehash that ground, except to notice that only two of thesecases—Shevlin-Carpenter and Lambert—involved statestatutes and thus actually involved constitutionalprinciples. Moreover, since Shevlin-Carpenter was a civilcase, only Lambert raised any clear constitutionalquestions regarding the limits of criminal liability. Theremaining cases actually interpreted federal statutes, andtherefore did not need to discuss the Constitution;whatever discussion in those cases commented on theconstitutional auras of mens rea versus strict liability wasclearly dictum. Indeed, virtually all of the language goingto mens rea in these opinions is dicta: Balint involved achallenge to an indictment, and held only that thegovernment need not plead scienter;11 the sole question inDotterweich was not the legitimacy of strict liability, butwhether the Food and Drug Act criminalized the acts of ahuman being, no matter how malevolent his mens rea.12

6. 218 U.S. 57 (1910).7. 258 U.S. 250 (1922).8. 320 U.S. 277 (1943).9. 342 U.S. 246 (1952).

10. 355 U.S. 255 (1957).11. Balint, 258 U.S. at 253.12. The statute under which Dotterweich was prosecuted provided that a

“person” who showed a warranty from his shipper that the goods were as labeledwould be exonerated. Dotterweich argued that only a corporation, and not anindividual within the corporation, would receive such a warranty, both as amatter of law, and as a matter of practice. Therefore he contended that the word“person” was limited to corporations, since they were the only “persons” able totake advantage of the statutory “defense.” The Second Circuit accepted the view,but the Supreme Court reversed.



The broad language in Morrissette, supporting arequirement of mens rea, was similarly much wider thannecessary for the decision. The language in Dotterweichand Balint nevertheless clearly formed the basis of Packer’sreasonable conclusions about the Court’s position on mensrea, both as a matter of statutory interpretation and as aConstitutional predicate. That was how matters stoodwhen the Court took its next foray into limiting the states’constitutional authority to impose criminal liability:Robinson v. California13 and Powell v. Texas.14

(1) Robinson and Powell

Almost immediately upon the publication of Packer’spiece, its implications seemed to mushroom. In 1962, theCourt decided Robinson v. California.15 Robinson had beenconvicted under a California statute which prohibitedeither using or being addicted to narcotics. The courtinvalidated the conviction16 on the ground that the EighthAmendment prohibited the criminal punishment17 ofpersons for a status, without proof of a voluntary act.

Robinson appeared to be revolutionary. Breathing lifeinto the Eighth Amendment, it was of a part with thewhole Warren Revolution. But while much of thatrevolution was driven by criminal procedure, Robinsonpotentially galvanized the substantive criminal law. TheCourt suggested that the Constitution placed some statusesor conditions—for example, “having a common cold”—

13. 370 U.S. 660 (1962). 14. 392 U.S. 514 (1968).

15. 370 U.S. 660 .16. Of course, there was no way of knowing whether the jury had found that

Robinson had used narcotics in California, or had simply been addicted to themwhile in the state. The Court deemed it necessary to decide the case on theassumption that the conviction had been on the basis of addiction rather thanuse. Id. at 666.

17. The Court indicated, in dictum, that the state could civilly commit addictsfar beyond the time required for punishment. Since that time, the Court hasupheld potential life-long confinement for civil purposes. See Addington v. Texas441 U.S. 418 (1979) (mental illness); Kansas v. Hendricks, 521 U.S. 346 (1997)(sexual predators).



beyond the reach of the criminal sanction. The status ofbeing addicted to narcotics, which was likened to a mentalillness, presumably could not be criminalized because it is“blameless” or “innocent.” The rationale for finding such astatus to be blameless or innocent was not entirely clear,but involved the alleged lack of voluntariness—the absenceof an actus reus rather than a mens rea. Thus the case isonly marginally related to our discussion here, whichfocuses on culpability rather than on action. Still, whencombined with Lambert, the case gave rise to expectationsthat the Warren Court was prepared to read requirementsof blame and guilt into the Constitution.

Those expectations, however, were quickly dashed inPowell v. Texas.18 For our purposes,19 Powell clearlyrepresents the Court’s unwillingness to “Constitutionalize”the substantive criminal law.20 The Court rejected thesupposition that Robinson created a substantive limitationon the use of the criminal sanction: the principle that“criminal penalties may not be inflicted upon a person forbeing in a condition he is powerless to change.”21 Speakingin forceful terms, the Court relegated to the states theprime (and perhaps the only) power to define crimes andcriminality. We shall return to this federalism pointlater.22 On the substantive point, however, the judgment ofthe Court—written by Justice Marshall, who might havebeen thought sympathetic to a nationalization of criminal

18. 392 U.S. 514 (1968).19. Powell is usually misread. The decision of the Supreme Court was 5-4,

with a plurality of four declaring that punishment of chronic alcoholics for publicdrunkenness amounted to punishment for a symptom of a disease. Four membersof the Court, speaking through Justice Marshall, held that even if publicdrunkenness was part of a disease, its punishment would not be unconstitutional.The ninth—and determinative—vote was cast by Mr. Justice White, who agreedwith the first group on the constitutional issue, but determined that thedefendant had not proved that public drunkenness was in fact so associated withthe disease of chronic alcoholism that its punishment was constitutionally barred.Nevertheless, Powell has been construed as having settled constitutionalquestions of responsibility and disease.

20. See Bilionis, supra note 5.21. Powell, 392 U.S. at 533.22. See Federalism, infra Section III(B)(2)(c).



law—underscored the rejection of the promise of Robinson.

(2) Strict Liability and Negligence: Ambiguity andProcedural Posturing

(a) United States v. Freed

For more than a decade after Lambert, the UnitedStates Supreme Court was essentially silent on thequestion of mens rea and criminal liability. Then, in thespace of four years, it decided three cases which have beenmisconstrued by courts and commentators as allowingconvictions even in the absence of mens rea. These cases,therefore, require considerable and detailed analysis. Ifindeed the Court approved of strict criminal liability, anyargument that guilt or blame are constitutionally required—or even that mens rea is essential in interpreting federalstatutes—would be seriously undermined. But matters arenot so simple. In each case, the court struggled to ensurethat only the non-innocent are subjected to criminalliability.

The first case is United States v. Freed.23 JusticeDouglas’ opinion in Freed is virtually devoid of any facts.All that one can learn from the opinion itself is that thedefendants were charged with the possession of handgrenades which had not been registered as “firearms” asrequired by the National Firearm Act. The absence of factsalone should serve as a warning to readers of the opinion.Justice Douglas’s opinion does not discuss how or why thedefendants came to possess these grenades, or how thepolice discovered the defendants and the weapons. Whydoes the opinion omit these crucial matters? The answerlies in the procedural posture of the case. The defendantsdemurred to the indictment on the ground that it did notcharge that they had possessed these grenades“knowingly.” The district court sustained the demurrer,

23. 401 U.S. 601 (1971).



and the government appealed directly to the United StatesSupreme Court. Justice Douglas’ opinion contains no factsbecause none were alleged in the indictment (as is usual)and none had been developed at trial (because there hadnot yet been a trial—or even discovery).

One must examine the briefs in the case to ascertaineven the barest of facts. These briefs indicate that thedefendants were part of an alleged terrorist ring infiltratedby undercover police agents.24 Thus, at least according tothe facts raised in the briefs, Freed did not involve personswhose ownership of hand grenades seems “innocent” — forexample, dealers of antique weapons, or persons who knewthat they owned hand grenades, but did not realize thathand grenades had to be registered with the federalgovernment. Even if the opinion did not mention thesefacts—and even if they were legally irrelevant—the Courtwas aware of them. It would be difficult—particularly inthe late 1960’s and early 1970’s—to imagine defendantsless sympathetic than the apparent domestic terroristsindicted in Freed.

Moreover, the only “mistake” that these defendantsmight have been able to raise was a mistake of law and notof fact. These defendants clearly knew that they possessedlive, potent hand grenades. Nor was there any suggestionin the demurrer, or in any of the briefs or arguments in theSupreme Court, that they believed that these items werenot “hand grenades” within the meaning of the statute.Thus their only possible relevant lack of “knowledge” wasthat they were not aware that federal law required theregistration as “firearms” of these hand grenades or thatthey did not know these grenades were “unregistered”—alegal status. Either mistake might be reasonable. Whileone may think of hand grenades as “weapons” or“armaments,” it is not obvious that hand grenades are

24. Record at 5, Freed (No. 345); Indictment, Count I, Freed (No. 345)(allegation: a criminal organization conspired to possess hand grenades); see alsoRecord at 25, 28, Freed (No. 345) (defendants involved in criminal organizationattempting to stockpile dangerous weapons which was infiltrated by undercoveragents).



“firearms”—a word commonly used to refer to weapons thatdischarge pellets of some sort rather than explode. Thus, itis arguable that their mistake of law was reasonable. Butat least from Blackstone’s time,25 mistake of law had notbeen a relevant defense except in the most extraordinary ofcircumstances. Here, then, the defendants appeared tomake the argument that not even the defendant in Balintwould have raised—that they were ignorant of their legalduty to register their weapons.

In this context, Justice Douglas could have written thefollowing one sentence opinion reversing the district court’sdecision sustaining the demurrer: “The defendants’ claimthat the prosecution must allege that they knew of theirlegal duty to register firearms runs afoul of two centuries offixed legal doctrine: Ignorantia Legis. Reversed.”Curiously, Justice Douglas did not take this simple tact.Instead, he decided to write at some length, but in so doing,he made several errors with regard to Supreme Courtprecedents and the common law of crimes. First, hereferred to Balint as a case in which the defendants hadbeen “convicted” of drug offenses on the basis of strictcriminal liability, a palpably incorrect statement of theprocedural posture of that case. This misinterpretation isparticularly important, since Balint would have beendecisive on the only question involved in Freed: whetherthe prosecution had to allege knowledge in the indictment.Whether knowledge would be relevant prior to conviction isa totally different matter.26 Had Douglas correctly

25. Blackstone is the source of the rule that mistake of law is no excuse. 4Blackstone Commentaries 27. But neither of the precedents which Blackstonecites support the contention. One was a general citation to Roman law. Whateverthe understanding in his day, current history has demonstrated that Roman lawdid in fact recognize mistake or ignorance of law as an excuse. See Paul K. Ryu &Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421 (1957).Blackstone’s second citation was to an argument by an advocate in a civil case,Brett v. Rigden, Plowd. 343, 75 Eng. Rep. 516 (1597). Aside from the obvious lackof precedential value of such a source, the case actually went against theadvocate’s position. Nevertheless, because Blackstone said it, the rule thatmistake of law is no excuse became “the law” and has been repeated consistentlysince that time.

26. States often require defendants to first raise claims upon which, if



understood Balint, it would have been direct precedent forFreed, and the opinion could have ended. Having misreadBalint, Douglas in dictum suggested a new basis forimposing strict criminal liability: the apparent non-innocence of the actor, as inferred from the nature of theitem in question.

Understanding the conditions under which any suchinference is warranted is crucial in order to gauge whetherand to what extent the Court has succeeded in protectinginnocent persons from punishment. If the non-innocence ofthe agent could somehow be derived from the nature of theitem possessed, strict liability need not result in thepunishment of innocent persons—despite their lack of mensrea.

On what basis might such an inference be drawn?Douglas indicates that “possession of hand grenades is notan innocent act. They are highly dangerous offensiveweapons . . . .”27 In addition, he declares that “an agreementto acquire hand grenades is hardly an agreement innocentin itself.”28 Exactly why does the fact that hand grenadesare dangerous allow an inference to the non-innocence ofthe person in possession? At this point, Douglas becomessomewhat murky. One possible answer is that no personwho possesses such weapons can be doing so for aninnocent purpose. According to this answer, the non-innocent purpose of all persons in possession of handgrenades is a sufficient degree of “guilt” to obviate the needfor a culpability requirement with respect to the issue ofwhether they knew the grenades are registered. But asecond possibility is suggested in Justice Brennan’sconcurring opinion. After noting that “the firearms coveredby the Act are weapons such as machine guns and sawed-

properly supported, the state thereafter carries the burden of proof. Insanity isthe most obvious such claim, but other “affirmative defenses” may fall within thiscategory as well. Thus, a holding on whether the prosecution has to pleadknowledge is not determinative of whether knowledge is relevant, or who has theburden of proof, if the issue is properly raised.

27. Freed, 401 U.S. at 609.28. Id. at 604 n.14.



off shotguns,” Brennan claimed that “the likelihood ofgovernmental regulation of the distribution of suchweapons is so great that anyone must be presumed to beaware of it.”29 According to this view, no culpability withrespect to the need for registration need be alleged, sinceno person could be ignorant of the existence of suchregulations.30

Any such basis for drawing an inference from item todefendant is hard to distinguish from the kind ofirrebuttable presumptions which the Court was toinvalidate as violative of due process only eight yearslater—in an opinion by Justice Brennan.31 One wouldthink that defendants should be afforded the opportunity torebut these inferences, since it is not hard to imagine thateven weapons such as hand grenades could be possessed foran innocent purpose. Although the defendants in Freedmay have lacked such a purpose, it is clear that noinference from item to defendant would be warranted inthe case of curators of museums, for example. In addition,persons in possession might well be ignorant of theregulations applicable to hand grenades. This latterpossibility becomes more plausible when one inquires aboutexactly what it is of which no person could be ignorant.Everyone may be vaguely aware of the existence ofregulations that pertain to hand grenades. But noteveryone need be aware that these regulations specificallyrequire the registration of hand grenades. Persons might

29. Id. at 616. (emphasis added). Professor Mark Kelman has supported sucha conclusive presumption in some instances. Mark Kelman, InterpretiveConstruction in the Substantive Criminal Law, 33 Stan. L. Rev. 592, 610 (1981).Professor John Shepard Wiley seems to agree that juries could make mistakes inthe absence of such a presumption of knowledge. Still, he argues that aconclusive federal presumption would be unnecessary, since juries tend to convictmore often today. John Shepard Wiley, Jr., Not Guilty By Reason ofBlamelessness: Culpability in Federal Criminal Interpretation, 85 Va. L. Rev.(forthcoming, Sept. 1999) (manuscript at 83, on file with the Virginia Law ReviewAss'n).

30. Professor Michaels also notes that Balint is ambiguous about what kind ofknowledge was at issue in the case. Alan C. Michaels, Constitutional Innocence,112 Harv. L. Rev. 828 (1999).

31. Sandstrom v. Montana, 442 U.S. 510 (1979).



believe, for example, that regulations only govern themanner in which grenades must be handled and stored.The defendants in Freed—even if they were terrorists wholacked an innocent purpose—might well have believed thattheir possession conformed to whatever regulationsgoverned the possession of hand grenades.

Whatever the case with hand grenades, different itemswould be subjected to strict liability depending on whetherone applies the rationale proposed by Douglas or byBrennan. The class of items that cannot be used for aninnocent purpose does not coincide with the class of itemsthat persons must know to be subject to regulations. Thepurposes for possessing brass knuckles, for example, maybe no more innocent than the purposes for possessing handgrenades, but the existence of regulations can hardly betaken for granted. Even more obviously, many items arewidely known to be subject to regulation, even though theymay be used for innocent purposes. Brennan thought thatpersons must be aware of the existence of regulations inFreed because the items covered by the National FirearmsAct are obviously dangerous. Brennan did not explicitlysay, however, that only dangerous items would give rise toa presumption, awareness of regulations.

In summary, the Court’s opinion in Freed is typicallyinterpreted as allowing strict liability. We have arguedthat that interpretation is questionable at best.32 Freed isbetter limited to (1) whether the government must allegeknowledge in an indictment; (2) a question of ignorance oflaw; (3) a dangerous weapon. Under no stretch of theimagination, however, can the Court’s opinion beinterpreted as allowing the punishment of “innocent”persons. Both the majority and concurring opinions agreedthat the defendants were “guilty,” even though the statuteunder which they were convicted lacked a requirement ofculpability. Thus, Douglas and Brennan both agreed thatonly the guilty should be punished; they disagreed about

32. See, supra note 24, (distinguishing the question whether mens rea has tobe alleged in an indictment as opposed to at trial).



what constitutes guilt.

(b) United States v. International Minerals &Chemical Corp.

The second of our three cases is United States v.International Minerals & Chemical Corp.,33 decided only sixweeks after Freed. The defendant, a corporation in thebusiness of transporting wastes, was charged in aninformation with violating an ICC regulation for the safetransportation of sulfuric and hydrofluoric acids. IMCCorporation had failed to comply with the regulationrequiring that the words “corrosive liquid” be written onthe shipping papers of the liquids transported. The statuteprovided that whoever “knowingly violates any suchregulation” was guilty of a criminal offense.34 Thedefendants demurred to the information, pleadingignorance of the existence of the applicable regulation. Asin Freed (and Balint), the District Court sustained ademurrer to the charging document, again on the groundthat scienter had not been alleged. Again, Justice Douglasspoke for the Court. And again, the Court reversed.

Douglas’ opinion made clear that mistake of fact wouldbe exculpatory if the defendant had no intimation that hewas shipping a dangerous item: “A person thinking in goodfaith that he was shipping distilled water when in fact hewas shipping some dangerous acid would not be covered.”35

Here, however, the defendant knew that he was shippingacids, just as the defendants in Freed knew that they werein possession of hand grenades. What the governmentneed not show, Douglas continued, was that the defendantsknew of the regulation requiring that the relevantlanguage be included on the shipping papers. Thus,according to Douglas, IMCC presented a classic case of

33. 402 U.S. 558 (1971).34. 18 U.S.C. § 834(f) (1948, repealed 1979).35. International Minerals Corp., 402 U.S. at 563-64. Note that this quotation

recognizes even an unreasonable but honestly held mistake of fact as a validclaim.



ignorance of law.36 As in Freed, this conclusion should havebeen sufficient to reverse. Again, however, Douglas’opinion continued. He was not content to accept theconclusion that innocent persons could be punished, butinsisted on inferring the “guilt” of the defendant from thenature of the item shipped.

Douglas could hardly have applied his rationale fromFreed for dispensing with evidence of men rea; no onewould maintain that sulfuric and hydrofluoric acids, even if“dangerous,” could not be shipped for an innocent purpose.Indeed, IMC Corporation had an innocent purpose.Instead, Douglas borrowed the rationale defended byJustice Brennan in Freed, supplementing it with theexplicit requirement that knowledge of the dangerousnessof the item was necessary to give rise to the inference ofguilt: “Where . . . dangerous or deleterious devices orproducts or obnoxious waste materials are involved, theprobability of regulation is so great that anyone who isaware that he is in possession of them or dealing with themmust be presumed to be aware of the regulation.”37

Douglas indicated that while a variety of other items—helisted pencils, dental floss, [and] paper clips,”—may also beregulated strict liability could not be imposed in ahypothetical criminal statute that punished the possessionof such items solely because they were regulated.Apparently, then, both awareness of the probability ofregulation and the dangerousness of the item wererequired to support strict liability.

Even though Douglas appeared to adopt most of theconcerns Brennan had articulated in his concurrence inFreed, Brennan now joined in a dissent written by JusticeStewart. In striking contrast to Brennan’s remark in Freedthat that case raised no “questions of ‘consciousness ofwrongdoing or blameworthiness,’”38 Stewart began bydeclaring that IMCC “stir[red] large questions—questions

36. Id.37. Id. at 565.38. United States v. Freed, 401 U.S. 601, 612 (1971).



that go to the moral foundations of the criminal law.”39 Thetype of item involved, he insisted, was insufficient to giverise to the implication that shippers must be aware of theexistence of regulations. Although IMC Corporation was inthe business of shipping, a “casual shipper” might have“never heard of the regulation.”40 To hold such a person“guilty of a criminal offense,” Stewart concluded, would be“a perversion of the purpose of criminal law.”41 AlthoughStewart declined to identify the exact nature of this“perversion,” it seems clear that it involves the convictionof persons who are innocent—legitimately unaware theyare breaking the law. An inquiry into the mental state ofdefendants, with regard both to the item shipped and to theexistence of the regulation, would be necessary to protectsuch persons—and thereby preserve the “moralfoundations of the criminal law.”

The dissent’s point is well taken. Yet it is difficult tosquare that position with Brennan’s view in Freed, decidednot more than two months before IMCC. Why did theIMCC dissenters—or at least Brennan—not speak out inFreed in favor of possible “innocence”? At least threepossible answers might be given. First, Brennan mighthave believed that persons who ship corrosive liquids areless likely to be aware of the existence of regulations thanpersons who possess hand grenades. Second, Brennanmight have believed that persons who ship corrosive liquidsare less likely to be aware of the details of such regulationsthan persons who possess hand grenades. After all, IMCCorporation did not claim to be unaware that corrosiveliquids were subject to regulation; they alleged they wereunaware that these regulations required the words“corrosive liquids” to appear on shipping papers. Finally,Brennan might have changed his mind about the inferencefrom item to defendant that he was prepared to draw inFreed. This change might have stemmed from the specificlevel of “danger” in the items. Obviously, acids are

39. International Minerals, 402 U.S. at 565.40. Id. at 569.41. Id.



“dangerous.” If Freed included all “dangerous” items, itwas indistinguishable from IMCC. But if Brennan saw thegrenades in Freed as qualitatively more dangerous thanthe acids in IMCC, he might well have distinguished thecase in the inference from item to dangerousness. Furtherelucidation of the meaning of “innocence,” however, wouldhave to wait until Liparota, decided a decade later.

(c) United States v. Park

Our third case, United State v. Park,42 has been said tobe the first United States Supreme Court opinion actuallyembracing strict criminal liability for purposes ofconviction. All of the prior cases—both before and afterPacker’s seminal article—are clearly distinguishable:Balint, Freed, and IMCC on the ground that the proceduralposture in the case did not require a holding on theultimate elements of the crime, and Dotterweich on theground that the precise issue before the Supreme Courtinvolved only the interpretation of the statutory word“person.” No such distinctions can be drawn with regard toPark. Still, the conclusion that Park embraced criminalliability without guilt is easily challenged.

Park, the Chief Executive Officer of Acme Grocery,whose corporate headquarters were in Philadelphia, wasinformed by the Food and Drug Administration in spring1970, that his Philadelphia warehouse had been infested byrodents. Although the opinion does not indicate whetherthat condition was rectified, it clearly implies that Parktook some corrective action. A year and a half later, theFDA conducted an inspection of Acme’s Baltimorewarehouse and found similar evidence of infestation. TheFDA then wrote Park a letter which he personally receivedin January, 1972. He then instructed his attorney andexecutive vice-president to clean up the unsanitaryconditions. Park was informed that the persons in chargeof the clean up in Baltimore were—with one exception—the

42. 421 U.S. 658 (1975).



same individuals who had been responsible for theconditions in Philadelphia.43 When the FDA re-inspectedthe Baltimore warehouse several months later, it foundthat the conditions had improved, but were not yetadequate. Acme and Park were indicted primarily forconditions discovered during the second inspection.44 Thecorporation pleaded guilty; Park went to trial. Theprosecution proceeded on the theory that Park, as the CEOof the corporation, had the ultimate responsibility for theconditions in all institutions of the corporation, and thuswas strictly and vicariously responsible for the adulterationin the warehouses. An instruction to that effect wasrequested and given.45 Park testified, denying that he hadany knowledge of the conditions in the Baltimorewarehouse prior to the FDA letter, and claiming to havedelegated the clean-up to persons he deemed responsibleand competent. On cross-examination,46 the governmentintroduced evidence of the letter referring to the conditionsin the Philadelphia warehouse a year and a half prior tothe Baltimore event. Park then conceded that the personsto whom he had delegated the job of cleaning up theatrocious conditions in Baltimore were the same personswho had been responsible for the unsanitary conditions inPhiladelphia.

43. Id. at 664.44. Park and the corporation, Acme, were ultimately indicted for the

violations occurring both in November, 1971 and in March, 1972—although theindictment focused primarily on the latter transgressions. See id. at 662 n.5. 45. The instruction stated that:

The individual is or could be liable under the statute, even though he didnot consciously do wrong. However, the fact that the Defendant ispresident . . . of Acme Markets does not require a finding of guilt. Thoughhe need not have personally participated in the situation, he must havehad a responsible relationship to the issue. The issue is, in this case,whether the Defendant . . . by virtue of his position in the company, has aposition of authority and responsibility in the situation out of which thesecharges arose. . . .

Id. at 665, n.9.46. The Court’s opinion says, at different points, that the letter was admitted

on rebuttal or during cross examination. The latter seems more likely.Regardless, if the government were relying on a strict liability theory, thisevidence would be irrelevant.



Park was convicted, but the Second Circuit Court ofAppeals reversed, finding that the instructions to the juryallowed Park to be convicted solely because he was theCEO of the corporation. Thus, the Second Circuit read theinstructions as imposing absolute, strict and vicariousliability upon a corporative executive who reasonablydelegated the clean-up to subordinates in his company andhad no way of knowing that his warehouses remained in anunsanitary condition.

The Supreme Court re-instated Park’s conviction. Inan opinion by Chief Justice Burger, the Court’s languagevacillated between a strict liability47 and a negligenceapproach.48 As a result, courts and commentators havedisagreed about whether Park should be read as imposingstrict liability or negligence.49 Although the governmentinitially tried the case under a theory of strict liability, itsuse of the 1970 letter concerning the Philadelphiaconditions established a case of negligence rather than ofstrict liability. One can easily argue that, once Park wasnotified that he had delegated the clean-up in Baltimore topersons he knew were responsible for allowing theconditions in Philadelphia to arise, he should havedelegated the clean-up to someone else, and that hisdecision to entrust the same individuals might be seen asnegligent and perhaps even reckless. As the Court said:“Respondent was on notice that he could not rely on hissystem of delegation to subordinates to prevent or correctunsanitary conditions at Acme’s warehouses . . . he musthave been aware of the deficiencies of this system beforethe Baltimore violations were discovered.”50 As a result, itis difficult to characterize Park as “innocent” in any

47. Park, 421 U.S. at 671, 675 n.16.48. Id. at 674, 678. Moreover, the dissenting opinion of Justice Stewart, to

which the majority did not explicitly respond, declared that “I read the opinion ofthe court as one of negligence.” Id. at 679, 683.

49. Compare Norman Abrams, Criminal Liability of Corporate Officers forStrict Liability Offense—A Comment on Dotterweich and Park, 28 UCLA L.Rev.463 (1981) with Kathleen F. Brickey, Criminal Liability of Corporate Officers forStrict Liability Offenses, 35 Vand. L.Rev. 1337 (1982).

50. Park, 421 U.S. at 678.



meaningful sense of the word.Even if one construes Park as establishing strict

liability, it does so only in one statutory framework—theFood and Drug Act. Other cases are so easilydistinguishable on their facts that Dotterweich and Park—both FDA cases—stand as the high water marks of strictcriminal liability in the United States Supreme Court. 51

Thus, any application of the general doctrine of strictcriminal liability to areas outside the Food and Drug Act isproblematic under the holdings of the Court — even if Parkactually imposes strict liability.

(B) Liparota v. United States — Innocence Affirmed

Only a few years later, the Court underscored thegeneral presumption requiring mens rea in all criminalprosecutions.52 The atypical case of Liparota v. United

51. So limiting these cases would recognize that courts and legislatures haveoften treated health—and particularly “drug and food”—cases differently.Whether that distinction is valid or not is another question. See Richard Singer,The Resurgence of Mens Rea: III—The Rise and Fall of Strict Liability, 30 B.C.L.Rev. 327 (1989) [hereinafter Singer III]. See also Bilionis, supra note 5,(recognizing that drugs are a particularly vulnerable area for strict liability, andciting Balint). Professor Wiley has argued that whatever “special” niche theCourt has previously reserved for “drug” offenses has not been eliminated by theCourt’s decision in Posters ‘N’ Things, 511 U.S. 513 (1994). Wiley, supra note 29,manuscript at 77-78.

52. In the Court’s next case, United States v. United States Gypsum Co., 438U.S. 422 (1978), the Court reiterated the general presumption requiring mens reain all criminal prosecutions, but did very little else. In a Robinson-Patman case,involving competitor-defendants who had exchanged information about salesprices, the trial court had instructed the jury that if the exchange had the effectof fixing or maintaining prices, the defendants' claim that their acts were taken ina good faith attempt to verify prices and thereby comply with the Act wereirrelevant. Using a hoary instruction which was soon seriously to be undermined,the trial court told the jury that “the law presumes a person intends thenecessary and natural consequences of his act . . . .” and that the presumptionwas “a matter of law.” Id. at 430. The Court’s grounds for upholding the reversalare odd for several reasons. On the one hand, the Third Circuit, which hadreversed the conviction, had done so on the narrow ground that there was aconflict between the Sherman Act (which in its view did not require mens rea)and the Robinson-Patman Act (which did). Justice Burger, speaking for amajority of the Court, eschewed this narrow ground. On the other hand, Burgerdid not choose to invalidate—as the Court later would—all presumptions which



States53 expanded the Court’s protection of innocent personsfrom criminal liability.

The opinion was written by Justice Brennan. As heoutlined the facts, the defendant appears to have been anunwary restaurateur who purchased food stamps at adiscount, possibly to assist the seller.54 The statuteprovided: “Whoever knowingly uses, transfers, acquires,alters or possesses coupons . . .in any manner notauthorized by the statute or the regulations” hadcommitted a crime. Liparota maintained that he did notknow that discounting the food stamps was in violation offederal regulations. The defendant’s mistake was one oflaw, not of fact—he knew that he was purchasing foodstamps, but was unaware that his purchase was contraryto the regulations.55 He argued that he had a statutorydefense because the word “knowingly” modified every partof the statute, including the words “not authorized byregulations.”

The trial court rejected Liparota’s interpretation of thestatute and held that the adverb “knowingly” modified onlythe verb “acquires” and not the defendant’s knowledge ofthe regulations themselves. The trial judge, however,made clear that he did not consider the defendant to beparticularly heinous, as he sentenced him to three hours,which he deemed to have been served. After the SeventhCircuit upheld the conviction,56 the United States SupremeCourt reversed.

were either conclusive (which the instruction in this case was) or which had theeffect of shifting the burden of proof to the defendant. Instead, the Court chose anintermediate position which reaffirmed the centrality of mens rea generally tocriminal liability, holding that “a defendant’s state of mind or intent is an elementof a criminal antitrust offense which must be established by evidence andinferences drawn therefrom. . . .” Id. The Court then went on to hold thatknowledge was the relevant state of mind.

53. 471 U.S. 419 (1985).54. The briefs in the case suggest that defendant’s brother was running a food

stamp bank.55. The Court’s attempt to show that it was not creating a defense of

ignorance of law is unconvincing. See id. at 426 n.9.56. See United States v. Liparota, 735 F. 2d 1044 (7th Cir. 1984) rev’d, 471

U.S. 419 (1985).



The Court held that the word “knowingly” did modifythe phrase “not authorized by the regulations.” Although aplausible argument of statutory construction supports thisholding, the majority also attached great significance to thecharacterization of the defendant (or of potentialdefendants) in light of the interpretation proposed by theUnited States. The government’s construction of thestatute would have required all persons who handle foodstamps to know all of the regulations of the Departmentand would, said the Court, “criminalize a broad range ofapparently innocent conduct.”57 Many “innocent” personsworking in the food industry, said the majority, might becaptured by the prosecutor’s argument in this case. TheCourt rejected the argument that sound exercise ofprosecutorial discretion could be trusted to protect innocentpersons from criminal liability.58 Requiring the prosecutionto prove mens rea with regard to all of the elements of theoffense would protect these innocents.

Liparota is the first of several cases of recent vintagein which the Supreme Court has confronted a claim ofignorance of law; in each instance59 the court has concludedas a matter of statutory interpretation that Congressrequired knowledge of the relevant legal provisions. Thisconclusion is striking, since the general proposition thatignorance of the law is no excuse had been affirmed even inLambert.60 Thus, Liparota may be seen as the first wedgeundermining the entire doctrine of ignorantia legis.

Liparota raised several serious questions about the

57. The statutory interpretation result, however, seems to conflict directlywith that offered by the Court only a decade earlier in IMCC. Indeed, the onlyreference in Liparota to IMCC is a “see also” citation toward the end of theopinion, in which the Court was discussing the innocence analysis examinedbelow. Liparota, 471 U.S. at 433. Nowhere was the statutory interpretationproblem generated by IMCC even addressed.

58. Professor Wiley has astutely argued that the Court, in a string of casesbeginning with Liparota, and covering those cases discussed in this article, hasmoved noticeably away from relying on prosecutorial discretion to ameliorate theharshness of a strict liability interpretation. Wiley, supra note 29, manuscript at13-21.

59. See discussion of Cheek and Ratzlaf, infra, Part II.A. 1, 2.60. Lambert v. California, 355 U.S. 255 (1957).



prior understanding of the possible elimination of mens reain so called “public welfare offenses.” One explanationfrequently suggested by courts and commentators had beenthat strict criminal liability was acceptable in cases of“regulatory” offenses—areas in which the governmentregulated conduct (often through administrative offices)because of the potential deleterious effects upon thegeneral population. Thus, the argument continued, adefendant who is engaged in an activity that is highlyregulated is put on notice to check both the facts and thelaw with respect to all of the operations which he is awaremight be regulated. There is, in effect, a “duty to inquire.”61

Liparota seemed to undermine this “regulatory”explanation.62 Although the Court indicated that “a foodstamp can hardly be compared to a hand grenade,”63 itremains true that food stamps are more obviously subjectto regulation than either hand grenades or sulfuric acid.They are expressly published, printed and stamped by theUnited States government, and typically include on theirbacks at least some of the restrictions that pertain to them.It would be virtually impossible for anyone who handles afood stamp not to know that it is issued (and thusregulated) by the United States government. On the otherhand, it is foolhardy to expect that anyone—even a persondeeply involved in a regulated industry—would know every

61. See Douglas Husak & Andrew von Hirsch, Culpability and Mistake ofLaw, in Action and Value in Criminal Law 157 (Stephen Shute et. al. eds. 1993).See also Andrew Ashworth, Principles of Criminal Law 234-36 (1995).

62. Liparota also gave extremely short shrift to an argument frequently raisedby supporters of strict liability: that the justice system can rely on the good faithand common sense of prosecutors not to pursue clearly innocent individuals.Obviously concerned that some innocent actors might be forced to stand trial(even if they are ultimately acquitted), the Court found no reason in thelegislative history to support relying on prosecutors. Indeed, in dispensing withanother argument raised by the government, the Court seemed concerned that ifit adopted the government’s interpretation of this provision of the statute,prosecutors might be too inclined to prosecute under this section, rather thanunder a section which clearly did require knowledge of the regulations. The actualprosecution of Liparota — whom the trial court had certainly seen as innocent —epitomized to the Court the overzealous use of the criminal process. See Wiley,supra note 29, manuscript at 13-15.

63. Liparota, 471 U.S. at 433.



detail of every regulation that might affect his conduct.Lack of knowledge of the details of regulations, of course,was precisely the allegation made by the defendant inIMCC.

The foregoing cases offer some indication of how theCourt understands the nature of “innocence” it is anxiousto protect. Innocent persons apparently do not handledangerous items that cannot be used for an innocentpurpose.64 Moreover, innocent persons do not act indisregard of regulations they “must know” to exist eitherbecause of the nature of their business or the items theyare handling—although the Court appears to have grownincreasingly skeptical that persons must know all of thedetails of the regulations that govern their conduct, even ifthey are aware that their conduct is regulated.

II: THE 1990'S TETRALOGY: INNOCENCERECONFIGURED

(A) Ignorance of Law and Innocence

Packer’s conclusion that mens rea might “sometimes”be constitutionally required was based upon two prongs: (l)dictum in Morrissette v. United States;65 and (2) an opaqueholding, and an even murkier opinion, in Lambert v.California.66 The latter decision involved the doctrine ofignorantia legis — that mistake or ignorance of the law isnot an excuse. Lambert had created an exception to thatrule, as a matter of substantive due process. Althoughsome hailed the opinion as an opening wedge inconstitutionalizing much of the substantive criminal law,67

64. This apparent restriction of strict liability is obviously inconsistent withthe cases which generated strict liability—sex and liquor cases. See generallySinger III, supra note 51 at 377.

65. 342 U.S. 246 (1952).66. 355 U.S. 255 (1957).67. Gerhard O.W. Mueller, On Common Law Mens Rea, 42 Minn. L. Rev. 1043

(1958).



Packer was much more constrained. He suggested that theopinion was so unclear that no one could decipher it.Justice Frankfurter had gone further, proclaiming that thedecision would become a “derelict on the waters of thelaw,”68 and he seems to have been correct.69

Having set the stage in Liparota, however, the Courtin the past half-decade has delivered two opinions which atleast raise the possibility that it may be rethinking thedoctrine of ignorantia legis. In each case, notwithstandingsomewhat bizarre fact patterns, the Court found anexception to the ignorantia legis doctrine, and held thateven an unreasonable mistake of law could serve as adefense to a criminal charge. These cases further developthe Court’s concern to protect innocent persons fromcriminal liability.

(1) Cheek v. United States

The first of these cases is Cheek v. United States.70

Cheek, an airline pilot of either extreme mendacity orgullibility, claimed to have been persuaded by anti-incometax zealots71 that the income tax was itself unconstitutionaland that, even within the meaning of the tax code, hispilot’s salary was not “income.” Although he had lostseveral lawsuits involving these issues, Cheek continued tomaintain his views, apparently believing that the courtsneeded further education on these matters. Prosecuted for“willfully” failing to file income tax returns for three years,Cheek argued that he honestly believed that he was notliable for such taxes, and asked the court to instruct thejury that any honestly held belief, no matter howunreasonable, would negate his criminal liability. The trial

68. Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J.dissenting).

69. A.F. Brooks, Note, When Ignorance of the Law Became An Excuse:Lambert and Its Progeny, 19 Am. J. Crim. L. 279 (1992).

70. 498 U.S. 192 (1991).71. See e.g., Brief for Respondent at 11, Cheek v. United States, 498 U.S. 192

(1991) (No. 89-658).



court rejected this view, and instead expressly instructedthe jury that only a reasonable belief could be exculpatory.This was followed by an instruction that Cheek’s viewswere, as a matter of law, unreasonable. Nevertheless, onno less than three occasions, the jury asked for furtherclarification about the relationship between mistake of lawand the statutory word “willfully.” The trial judgereiterated that only a reasonable mistake of law wouldexonerate, and that Cheek’s mistake was not reasonable.The jury ultimately convicted.

On appeal, a 6-2 Supreme Court reversed, holding thatthe jury should have been instructed that any mistake,however unreasonable, would exculpate. In an opinion byJustice White, the Court held that under existingprecedent, “willfulness” in a tax statute required thegovernment to show that the defendant had knowinglyviolated a known legal duty. The Court gave several“explanations” as to why this interpretation applied in “taxcases.” The first explanation was simply precedent—"willfully" in tax statutes had been so construed for oversixty years; tax cases, it seemed, were tax cases. Arbitraryis as arbitrary does. The second explanation cited thecomplexity of the tax code. This, however, seems equallyarbitrary. As Justice Scalia pointed out in partial dissent,neither of these reasons could explain why the Courtnonetheless held that Cheek’s equally honestly held viewthat the income tax was unconstitutional did not negate“willfulness” for purposes of his failure to file.72 After all,the complexity of constitutional law seems comparable tothat of tax law. Moreover, the tax code, while admittedly“complex,” is hardly any more difficult to decipher than

72. Justice Scalia’s scathing remark is appropriate:I find it impossible to understand how one can derive from the lonesomeword “willfully” the proposition that belief in the nonexistence of a textualprohibition excuses liability, but belief in the invalidity (i.e., the legalnonexistence) of a textual prohibition does not. . . . It seems to meimpossible to say that the word refers to consciousness that some legal textexists, without consciousness that that legal text is binding, i.e., with thegood faith belief that it is not a valid law.Cheek, 498 U.S. at 208-09.



many other areas of activity now regulated in great detail.Health care or environmental protection, for example, aretwo areas in which it is arguable that both the statutes andregulations are at least as complex as the tax code.

(2) Ratzlaf v. United States

The holding of Cheek was unclear. Did it apply only totax cases? Only to “complex” bodies of law? Only tostatutes requiring “willfulness”? Or was it a broaderrejection of ignorantia legis? Within two years, the Courtprovided at least one clue—Cheek was not limited to taxcases. In Ratzlaf v. United States,73 in an opinion byJustice Ginsburg, the Court held that any mistake orignorance of law, no mater how unreasonable, couldexculpate a defendant charged with “willfully” structuringa monetary transaction so as to avoid reporting obligations.

The facts of Ratzlaf are even more bizarre than thosein Cheek. Ratzlaf owed the High Sierra Casino in StateLine, Nevada, nearly $200,000 in gambling debts. Heappeared one day with much of that amount in cash, andattempted to hand it to the casino. He was told, however,that if he did so, the casino, under federal anti-money-laundering laws, would have to report the transaction. Hewas further informed that the casino had no duty to reporttransactions of money orders in amounts less than $10,000each. The casino then provided Ratzlaf with a limousine,which plied him from bank to bank, where he obtainedmoney orders in amounts less than $10,000. Ratzlaftherefore knew that the bank was under a duty to report;what he did not know74 was that federal law also prohibitedanyone from “willfully”75 structuring a transaction in order

73. 510 U.S. 135 (1994).74. The Ninth Circuit found that Ratzlaf did know of the reporting

requirements, and that he was trying to avoid payment of income taxes. See Brieffor Amicus Curiae, National Association of Criminal Defense Attorneys at 15,Ratzlaf, (No. 92-1196). But the trial court decided the case on the basis that thegovernment did not have to prove such knowledge.

75. 31 U.S.C. §§ 5322 & 5324 (1994).



to avoid reporting.Ratzlaf was clearly guilty of the conduct prohibited by

the statute—he undeniably structured his payment to thecasino, and his transactions with the banks involved, withthe purpose of allowing the casino to evade its reportingrequirement. The jury was instructed that his claim thathe did not know that he was under a duty not to structuresuch transactions was irrelevant. The Ninth Circuitaffirmed. On appeal, the Supreme Court reversed Ratzlaf’sconviction, holding, as in Cheek, that under this statuteany mistake of law, however unreasonable, wouldexculpate.

The Court’s opinion is important for its implicationsfor all cases of mistake. Since the statute prohibited onlythe willful structuring of a transaction to avoid reporting,the Court could simply have cited its holding in Cheek,—that “willfulness” required the knowing violation of aknown legal duty. While such a holding in Ratzlaf wouldhave extended Cheek beyond tax law, and possibly beyond“complex” law,76 the step would have been relativelysmall.77 Instead, the opinion by Justice Ginsburg took amuch broader approach. The money-laundering statuteswere said to be aimed at “nefarious” dealings (primarilyinfected by drug money). But, said Justice Ginsburg, many“non-nefarious” persons might not wish to tell thegovernment (or others) about transactions involving hugesums of money. Thus, in the Court’s view, persons who areboth legally and morally innocent might otherwise be

76. Writers and lower courts tried to cabin Cheek in these two ways.77. In their brief, the National Association of Criminal Defense Attorneys

noted:“But the numerous decisions interpreting non-tax crimes, across a verybroad range of types of statutes, refute any such suggestion . . . Amicus isnot asking . . . that the interpretation of willful in the tax laws should beextended to this offense. Rather, we are asking that this Court apply thetraditional definition of willfully, that found in numerous other non-taxstatutes. . . .”

Brief of Amicus Curiae, National Association of Criminal Defense Lawyers at 60,Ratzlaf (No. 92-1196).



caught in the law’s web.78 The Court’s illustrations of “non-nefarious” actors were strained: Justice Ginsburg’sexamples included persons seeking to avoid an IRS audit,or husbands trying to avoid an increase in alimonypayments.79 One may not agree with the examples shegave, or sympathize with defendants who do not wish theirtransactions to be known. The fact remains, however, thatthe Court concluded that large bank transactions are not“inherently” immoral, so that persons who engage in suchtransactions are “innocent” until proven otherwise. Thegovernment argued that anyone who deprives the state ofinformation to which it is “entitled” is not innocent.80 Butthe defendant, and amicus, answered that the governmentis not “entitled” to the information unless the law forbids a“restructuring” to avoid the reporting.81

Ratzlaf extends Cheek’s dilution of ignorantia legisinto the regulatory state. When that doctrine was first(erroneously)82 established, laws reflected the basic moralsof the community, and most citizens were in fact aware ofthe general thrust of the law. The earlier cases ofteninvolved aliens not familiar with those mores.83 Althoughthese situations still arise today,84 the greater difficultiesstem from the complexity of regulations that surroundvirtually every action persons can take—but which do notnecessarily raise moral issues. Moreover, the requirementof notice is even more obscure in our regulated world. TheCourt observed that the Secretary of the Treasury hadconsidered, but did not promulgate, a regulation requiringbanks to inform customers of their legal duty not to

78. We assume that “nefarious” is synonymous with “guilty,” and “non-nefarious” with “innocent.”

79. Ratzlaf, 510 U.S. at 144.80. Brief for Respondent at 18, Ratzlaf (No. 92-1196).81. See Petitioner’s Reply Brief at 4, Ratzlaf (No. 92-1196) (noting that

“respondent does not explain how deliberately keeping out of government files inwhich an agency has a regulatory interest but to which it has no legalentitlement, can legally be considered bad”).

82. See supra note 2.83. Rex v. Esop, 7 C. & P. 456 (1836); In re Barronet & Allain, 1 E.L. 7 B.L.,

118 Eng. Rep. 337 (1852).84. United States v. Moncini, 882 F.2d 401 (9th Cir. 1989).



structure their transactions.85 It is not far fromentrapment (and perhaps is close to estoppel) when theSecretary rejects an easy means to provide notice tocustomers, and then holds those same customers strictlyliable when they act in ignorance of the requirement.Ratzlaf is a perfect example of the “regulatory trap.” Priorto the federal money laundering statutes, transactionsinvolving large amounts of money not only were not“wrong,” but were common-place. While most would agreethat it is “wrong” to “launder” money through large banktransactions—particularly for the purpose of hidingcriminal activity—nothing has changed about the“innocence” of such transactions in general.86

The precise reach of Ratzlaf is uncertain. It clearlygoes beyond Cheek, since it is not a tax case. It probablyalso reaches “non-complex” statutes, since the anti-structuring statutes are not especially complex. The basicrule that any transaction involving more than $10,000 incash must be reported is not hard to understand. On theother hand, it is not probable that the Court meant toabolish the ignorantia legis doctrine; indeed, it said asmuch in Ratzlaf. But, as in Lambert forty years earlier, thedecision may contain the seeds to destroy that doctrine—ifthose seeds are allowed to sprout. Lambert, of course, diedaborning,87 proving Justice Frankfurter a prudentprognosticator.88 This same outcome may await Ratzlafand Cheek as well. Later developments which focus on“innocence,” however, make this prediction less probable.

85. Ratzlaf, 510 U.S. at 139 n.6.86. After Ratzlaf Congress amended § 5322 to exclude its application to

§ 5324. See Pub L. No. 163-325 (1994).87. Lambert v. California, 355 U.S. 255 (1957).88. See supra note 68.



(B) Mistake of Fact: Pornographers, Gun Owners, andInnocents

(1) United States v. X-Citement Video, Inc.

If Cheek and Ratzlaf undermine the rule thatignorance of the law is not relevant to criminal liability, theCourt’s next two cases, involving mistake of fact ratherthan of law, could be construed to embrace a further newreinvigoration and broadening of mens rea principles. Inthese opinions, the Court breathed new life into its oft-repeated view that mens rea is an essential part of criminallaw,89 and that whenever possible statutes should beconstrued to require it.90

The defendant in United States v. X-Citement Video,Inc.91 was charged with “knowingly transport(ing) andship(ping) . . . a visual depiction (which) . . . involves theuse of a minor engaging in sexually explicit conduct. . . .”92

After rather persistent prodding by an undercover federalagent, the defendant had shipped fifty films involving TraciLords, an infamous child pornography star.93 Thedefendant also agreed to sell him an additional 56 suchtapes after having initially refused to do so because, as heacknowledged, “Lords was a minor and the interstateshipment of the films would be unlawful.”94 Two monthslater, however, he shipped those tapes as well. The trial

89. See Morrisette v. United States, 342 U.S. 246 (1952).90. See Liparota, v. United States, 471 U.S. 419, 426-27 (1985).91. 513 U.S. 64 (1994).92. 18 U.S.C. § 2252 (1994).93. Before she was 18, Lords was “considered one of the top adult film

actresses in the country and made about 75 sexually explicit movies and videoswhile she was 16 and 17 years of age.” Brief for Respondent at 118, X-CitementVideo (No. 93-723). There is good evidence that Lords deceived not only theproducer of the films, but many others as well. She had produced a Californiadriver’s license, a passport, and a birth certificate, which gave her age as 22. Id.By the time the defendant in X-Citement Video had shipped the films, however,her deception was well-known not only in the adult film industry, but in manyother circles as well.

94. Brief for Petitioner at 64, X-Citement Video (No. 93-723).



judge, acting as finder of fact, initially convicted on theground that the defendant undoubtedly knew that Lordswas under 18 at the time she had made the films. While X-Citement Video was pending on appeal to the Ninth Circuit,that court, in another proceeding, held that knowledge ofthe age of the actress was not required. 95 In light of thisopinion, the Ninth Circuit accordingly remanded X-Citement Video’s appeal. The trial judge (for reasons notclear) then withdrew his original decision, and, concurringwith the Ninth Circuit (with whom he had initiallydisagreed) concluded that the government did not have toprove such knowledge. On appeal, the Ninth Circuit gavehim cold thanks for following its suggestion—it held thatthe statute, as so construed and applied, violated the FirstAmendment, and threw out the conviction. The SupremeCourt reversed that decision, holding instead that thestatute must be read as including a mens rea of knowledgeas to the age of the actress.

The case presented a straightforward issue ofstatutory interpretation: Did the word “knowingly” “reachdown the statute” to the phrase “use of a minor”? That is,did the defendant have to know that there was a minor inthe film, or was it sufficient that he had “knowingly”transported a film which, as it turned out, involved aminor? One would think that such an issue of statutoryinterpretation could be readily solved. Alas, it is not so. Inhis original article, Packer bemoaned “the Court’s failure todevelop an adequate method of interpretation of criminalstatutes . . . .”96 Unhappily, that lament is equallyappropriate today, as is startlingly apparent in thisinstance. The federal courts, which had attempted toanswer that question with regard to this particular statute,had created at least97 five different responses as follows:

95. United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S.826 (1990).

96. Packer, supra note 1, at 108.97. See supra note 95 and accompanying text for a possible position not

adopted by any court with regard to this statute, but used with regard to acompanion statute.



1. “Knowingly” does modify “minor,” and thegovernment must show the defendant knew the filminvolved a person under 18.98

2. “Knowingly” does not modify “minor,” but thegovernment must show that the defendant was at leastreckless with regard to the age of the persons in the film;that is, he consciously disregarded a substantial risk thatthe film involved a person under eighteen.99

3. “Knowingly” does not modify “minor,” but thegovernment must show that the defendant knew that thefilm involved “child pornography.”100 (How the governmentcan show this without proving that the defendant knewthat at least one actor was a minor is not explained).

4. “Knowingly” does not modify “minor” but the statuteis nevertheless constitutional because strict liability isconstitutional, even in areas bordering the FirstAmendment,101

5. “Knowingly” does not modify “minor” and the statuteis therefore unconstitutional, because the FirstAmendment requires, in cases impinging on potential freespeech, that the government demonstrate scienter.102

98. United States v. Burian, 19 F.3d 188 (5th Cir. 1994); United States v.Cochran, 17 F.3d 56 (3d Cir. 1994); United States v. Gifford, 17 F.3d 462 (1st Cir.1994); United States v. Prytz, 822 F. Supp. 11 (D.S.C. 1993); United States v.Long, 831 F. Supp. 582 (W. D. Ky. 1993).

99. United States v. Kempton, 826 F. Supp. 386 (D. Kan. 1993). This view wasalso adopted by Judge Kozinski’s dissent in the Ninth Circuit’s decision in X-Citement Video. See United States v. X-Citement Video, 982 F.2d 1285, 1292(9thCir. 1992) (Kozinski, J., dissenting) rev’d, 513 U.S. 64 (1994).

100. United States v. Brown, 25 F.3d 307 (6th Cir. 1994); United States v.Colavito, 19 F.3d 69 (2d Cir. 1994); United States v. Gendron, 18 F.3d 955 (1stCir. 1994); United States v. Brown, 862 F. 2d 1033 (3d Cir. 1988).

101. See U.S. v. Kleiner, 663 F. Supp. 43 (S.D. Fla. 1987). The Kleiner courtdid not directly deal with the constitutional issue, but its citations show that itbelieved that it was resolving both the constitutional as well as the statutoryclaim.

102. See United States v. United States District Court, 858 F.2d 534 (9th Cir.1988). Of course, this was the view of the Ninth Circuit in X-Citement Video, andin Justice Scalia’s dissent. The Ninth Circuit also declined to apply yet anotherpossible view, which it had adopted in interpreting a companion statute to section2252. In construing section 2251, which does not include the word “knowingly,”the court held that strict liability with regard to age is imposed upon producers,and the government does not have to show that a defendant-producer knew the



Surely it is astounding that one relatively simplestatute could generate such confusion and dissonance inthe courts. Several conceivable rules of statutoryconstruction could be used by the courts to avoid thisproblem:

1. An adverb of culpability modifies only the firstimmediate verb that follows the adverb, and does not applyto subsequent verbs or nouns. Thus, “knowingly” wouldmodify only “transports.” Any person who delivers orreceives a sexually explicit film involving a minor would beguilty, even if he believed the film to be “The Sound ofMusic.”

2. An adverb of culpability modifies all subsequentverbs, but does not apply to subsequent nouns. Thus, anyperson who knowingly transports or knowingly receives asexually explicit film involving a minor would be guilty,even if he believed the film to be “The Sound of Music.”

3. An adverb of culpability modifies all materialelements of the statute, unless a contrary legislativepurpose is clear from the wording of the statute. Thus,“knowingly” applies to “minor,” so a defendant who doesnot know that he is delivering or transporting a filminvolving a minor would not be guilty.

4. An adverb of culpability modifies all materialelements of the statute, unless a contrary legislativepurpose is clear from the wording of the statute (or from itslegislative history).

Any one of these four possible approaches to statutoryinterpretation would avoid—or at least militate against—the ghastly divisions that occurred in the circuit courtsattempting to decipher this statute. But as Packer notedthe Supreme Court had failed to adopt any of them in aconsistent manner. Unfortunately, X-Citement Video,while articulating the factors to be considered indetermining whether to require a mens rea, continued thisrefusal to adopt a firm rule of statutory interpretation.

film involved persons under 18. The defendant, however, may avoid liability byproviding clear and convincing evidence that he reasonably believed there wereno minors in the film.



Of course, ease of interpretation is not the only goal ofcourts—justice is relevant as well. Of the proposedstatutory rules, some are in fact better than others. Thefirst two approaches are sometimes said to reflect earlycommon law decisions.103 But the first seems ludicrous.104

The second clearly conflicts with the general importance ofmistake of fact in common law crimes,105 which exoneratesa defendant who makes any mistake of fact thatdemonstrates his lack of criminal intent.106 The fourthproposal comports with the deference courts usually extendto legislatures, but contains the seed of a substantialdifficulty: As many observers have noted,107 attempting tofind legislative intent in the legislative history is harderthan finding the Holy Grail. Even if one rejects the basicpremise of the “new textualism” that all such searches areresult-driven,108 the journey is perilous.

103. See, e.g., Cotterill v. Penn, 1 K.B. 53 (1936).104. Suppose that a statute has a list of almost synonymous verbs, or is later

amended to insert a new verb at the top of the list, thereby removing a mens rearequirement with regard to what had previously been the first verb in the statute.

105. Richard Singer, The Resurgence of Mens Rea II—Honest ButUnreasonable Mistake of Fact in Self Defense, 28 B.C.L. Rev. 459 (1987)[hereinafter Singer II]; Joshua Dressler, New Thoughts About the Concept ofJustification in the Criminal Law: A Critique of Fletcher’s Thinking andRethinking, 32 UCLA L. Rev. 61 (1984); Edwin R. Keedy, Ignorance and Mistakein the Criminal Law, 22 Harv. L. Rev. 75 (1908). 106. Some jurisdictions require that the mistake be reasonable. See Singer II,supra, n.105.

107. Guido Calabresi, A Common Law for the Age of Statutes (1983); CharlesR. Curtis, A Better Theory of Legal Interpretation, 3 Vand. L. Rev. 407 (1950);Reed Dickerson, Statutory Interpretation: A Peek Into the Mind and Will of aLegislature, 50 Ind. L.J. 206 (1975); William N. Eskridge & Phillip P. Frickey,Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 319 (1990);Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527 (1947); James M. Landis, A Note on Statutory Interpretation, 43 Harv.L. Rev. 886 (1930); Earl M. Maltz, Rhetoric and Reality in the Theory of StatutoryInterpretation: Underenforcement, Overenforcement, and the Problem ofLegislative Supremacy, 71 B.U.L. Rev. 767 (1991); Arthur W. Murphy, OldMaxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the“Modern” Federal Courts, 75 Col. L. Rev. 1299 (1975); Richard I. Nouns, TheNature of Legislative Intent and the Use of Legislative Documents as ExtrinsicAids to Statutory Interpretation: A Re-Examination, 9 Cal. W.L. Rev. 128 (1972);Mary Jane Radian, Statutory Interpretation, 43 Harv. L. Rev. 863 (1930);Norman J. Singer, Southland Statutory Construction (3d ed., 1943).

108. Antonin Scalia, A Matter of Interpretation (1996).



The third proposal has the advantage of avoiding thequagmire of legislative history. Although some may believethat the failure to investigate such history is a serious cost,that cost may be offset by the greater benefit of requiringthe legislature to speak responsibly and clearly in criminalstatutes as to its intent. This approach, of course, is takenby the Model Penal Code, which requires that culpabilityterms apply to each “material element” of the offense.109

Although occasional disputes may arise about whichelements are “material,”110 there can be no doubt that in thepornography statute “minor” qualifies. Thus, the adverb“knowingly” requires that the government prove that thedefendant knew that at least one actor in the film was aminor.

Without committing itself to any of the foregoingapproaches to statutory construction, the X-Citement VideoCourt concluded that “knowingly” should modify “minor.”This conclusion is remarkable, since strict liability as toage first reared its head in the context of a case involvingthe sexual activity of a minor.111

For our purposes, the Court’s pronouncements aboutcriminal responsibility are even more important than itsapproach to statutory construction. After reaffirming the

109. Model Penal Code § 2.02 (Proposed Official Draft 1962).110. The Code itself is less than fully felicitous in this matter, defining a

“material” element as any element not “solely” concerned with jurisdiction, venue,statute of limitations, and the like. Id. § 1.13(10). More affirmatively, the phraseencompasses anything dealing with the “harm or evil, incident to conduct, soughtto be prevented by the law defining the offense.” This requires the court to decidewhat the “harm or evil” is. In the statute in question, the harm or evil can only bepornography which involves minors, since other (non-obscene) pornography isconstitutionally protected speech. Thus, “minor” must be a material element ofthe offense. In most cases, the identification of the harm or evil will be intuitively“obvious,” even if the method by which that result is reached is somewhatByzantine.

111. The landmark case, of course, is Regina v. Prince, L.R. 2 C.C.R. 154(1874). But American cases followed the rule as well. See generally Singer II,supra note 105. Until a few years ago, strict liability was imposed in almost alljurisdictions with regard to “statutory rape.” Recent decisions, as well aslegislative changes, have drastically altered that position. Nearly half the statesnow allow reasonable mistake as to age as a relevant claim to such a charge. SeeGarnet v. State, 632 A.2d. 797, 802-03 (Md. 1993); 8 ALR 3d 1100 (1971).



existence of a “presumption” in favor of requiring mens reain criminal statutes, the Court in X-Citement Video echoedLiparota and Ratzlaf by warning of the “dangers” ofconvicting “innocent” persons if “knowingly” were held notto modify all elements of the statute:112

Some applications of respondents’ position would produceresults that were not merely odd but positively absurd . . .we would sweep within the ambit of the statute actors whohad no idea that they were dealing with sexually explicitmaterial. For instance, a retail druggist who returns anuninspected roll of developed film to a customer “knowinglydistributes” a visual depiction. . .(o)r a new resident of anapartment might receive mail for the prior resident andstore the mail unopened. . . . Similarly, a Federal Expresscourier who delivers a box in which the shipper has declaredthe contents to be “film” “knowingly transports” such film.

The Court’s statutory interpretation approach herewas a sleight of hand. In order to avoid such unfairconsequences, it argued that the adverb “knowingly” had tobe “emancipated” from the moorings of the verb(s) andapply to the statutory term “sexually explicit conduct.” 113

Once one accepted that proposition, said Justice Rehnquist,there was no apparent reason for stopping in mid-sentence.If the adverb were free to travel, there was no reason itshould not travel to the word “minor” as well.

This conclusion, however, is not inevitable. As severalamici briefs pointed out,114 it is not impossible,linguistically or as a matter of policy, to restrict“knowingly” to the verbs and to the “nature of thematerial,” while applying a mens rea of “recklessly” to the“minor” provision of the statute.115 As a result, if the

112. United States v. X-Citement Video, Inc., 513 U.S. 64, 66-67 (1994).113. Id. at 77.114. See, e.g., Brief for Amicus Curiae National Family Legal Foundation, X-

Citement Video (No. 93-723).115. The Model Penal Code generally applies a mens rea term to all material

elements of the statute, “unless a contrary (legislative) purpose plainly appears.”Model Penal Code § 2.02(4) (Proposed Official Draft 1962). But 2.02(3) providesthat if there is no mens rea term, “recklessly” is the “default” position. Id.



defendant knows that the material is sexually explicit, andthat some of the actors are “young,” he should be requiredto act more cautiously as to the possible age of the actors.116

The Court’s opinion gives this possibility no shrift; it doesnot address whether a “lesser” mens rea might apply tosome parts of the statute.

For precedential concerns about innocence, however,the more critical aspect of X-Citement Video is the Court’ssubstantive explanations. Unless “knowingly” wereinterpreted to reach “use of a minor,” it argued, many“innocent” persons would be subjected to criminal liability.Justice Rehnquist’s examples of the messengers and filmdevelopers illustrate the point. This policy analysis cannot,however, be limited to those items touching the FirstAmendment’s outer limits. UPS deliverers of salt, whichturns out to be cocaine, or developers of microfilm whichturns out to be stolen missile plans, would also be“innocent” under the majority’s approach. Since the task ofprotecting the innocent falls to the judiciary, the Court’srationale must extend to all persons who lack culpabilitywith respect to material elements.

§ 2.02(3). If one were to conclude that the failure of the legislature to specify amens rea to each element did not necessarily suggest that “knowingly” mustapply to every material element, recklessness could be a default mens rea. TheCourt’s conclusions in X-Citement Video itself were made somewhat easier by thegovernment’s concession (apparently with First Amendment concerns in mind)that the defendant had to know that the material being shipped was sexuallyexplicit. In a statute which prohibited shipping films “of a minor in sexuallyexplicit conduct,” it would be hard to explain why “knowingly” traveled down thestatute to modify “sexually explicit conduct,” but leaped over “of a minor.”Suppose, however, that the statute were reworded to read: “showing sexualexplicit conduct involving a minor.” In this event, there would be no “skippingover” a phrase, but merely a “stopping” at the end of “sexually explicit conduct.”

116. This view was vigorously opposed by the Amicus Brief for AmericanBooksellers Foundation for Free Expression and that of PHE, Inc., each of whichargued that any culpability requirement less than knowledge would forcebooksellers and others to inspect the pages of everything they sold, therebychilling free speech. See, Brief for Amicus Curiae American BooksellersFoundation for Free Expression, X-Citement Video (No. 93-723); Brief for AmicusCuriae PHE, Inc., X-Citement Video (No. 93-723). In the midst of this debate, theUnited States took no position, saying that, in its view, there would be nopractical difference between a recklessness and a knowledge standard. Brief forPetitioner at 28, X-Citement Video (No. 93-723).



X-Citement Video thus takes the general argumentagainst strict liability—and therefore the argument infavor of mens rea—one step further than either Ratzlaf orCheek, particularly in its emphasis on protecting theinnocent from criminal liability. Yet even it is not the mostsweeping recent opinion in favor of mens rea. That stepwas taken in Staples v. United States117

(2) Staples v. United States

Staples owned an AR-15 assault rifle, which, unlessmodified, is a semi-automatic weapon. The AR-15 ismanufactured with a metal stop that is intended to preventpersons from turning the weapon into an automatic device.Somehow, however, Staples’ gun, which had been semi-automatic when he obtained it, had “become” automatic,either through active human intervention, or by wear andtear. Federal statutes require that all automatic weapons(“machine guns”) be registered with the Secretary of theTreasury;118 semi-automatic and non-automatic weaponsneed not be registered. 119 These statutes contain noexplicit mens rea requirement. When Staples wasprosecuted for not registering his AR-15 with theSecretary, he claimed ignorance of the facts that caused thegun to become “automatic.”

The trial court refused to admit evidence relating toStaples’ factual proofs, concluding that the statute did notrequire that he know that his weapon had, somehow,transmogrified into a “machine gun.” All that was requiredwas that he knew that he owned a weapon of some sort;had Staples thought he owned a five iron, rather than agun, the application of this theory might have produced adifferent result. On that basis, Staples was convicted, andhis conviction was affirmed by the Tenth Circuit. TheSupreme Court, in an opinion by Justice Thomas, with only

117. 511 U.S. 600 (1994). 118. 18 U.S.C. § 922 (1994).

119. 26 U.S.C. §§ 5495, 5841 (1994).



Justices Stevens and Blackmun dissenting,120 construed thestatute—which had no mens rea term—to requireknowledge of the nature of the weapon (and presumably,after X-Citement Video, of all other material elements ofthe statute).121 Justice Thomas first repeated the familiarshibboleth that mens rea was usually required in thecriminal law, citing the usual string of cases—Morrissette,Gypsum, and Liparota. From that point, perhaps becauseof the apparent concession of the United States,122 butpossibly on a broader common law basis, he concluded thatthe general mens rea required was knowledge.123

In explaining why mens rea—and in this caseknowledge—was required, the Court essentially (re-)explained its recent decisions. Any other position, it againargued, might well capture too many “innocent” actors:124

[T]hat an item is “dangerous” in some general sense doesnot necessarily suggest. . . that it is not also entirelyinnocent. Even dangerous items can, in some cases, be socommonplace and generally available that we would not

120. Justices Ginsburg and O’Connor concurred.121. Professor Wiley has noted that the Court both (1) added a mens rea where

there was none in the statute, and (2) adopted knowledge as the requisite mensrea. He acknowledges the importance of both these moves, although he questionsthe wisdom of using knowledge, rather than recklessness, as the “defaultposition” in statutory interpretation. Wiley, supra note 29, manuscript at 85-86.

122. See Staples, 511 U.S. at 620 (Ginsburg, J., concurring).123. See id. at 619. There is no apparent reason why recklessness should not

be the appropriate mens rea in such an instance. Assuming that the defendantknows that he has a gun which, if altered, should be registered, one might imposea duty to inspect the gun at least occasionally to determine if it has becomeautomatic, and therefore subject to registration. A defendant who fails to apprisehimself of the state of his weapon might be viewed as culpable, depending on theextent of the risk that the gun might “alter” itself. Compare the position of theModel Penal Code that, in the absence of a mens rea word, proof of recklessness issufficient for conviction. Model Penal Code § 2.02(3). “Knowledge” and “purpose”are usually synonymous with “specific intent,” while “recklessness” connotes“general intent.” The Court’s declaration here suggests that most crimes arespecific intent, rather than general intent, crimes. This suggestion would havesignificant implications for later issues of interpretation.

124. Staples, 511 U.S. at 611. Professor Wiley observes that the Court inStaples “disclaimed reliance on the rule of lenity; the Court insisted that thebackground rule favoring a scienter requirement was so strong as to removeambiguity from this statute.” Wiley, supra note 29, manuscript at 29-30.



consider them to alert individuals to the likelihood of strictregulation. . . . [P]recisely because guns falling outside(limited) categories traditionally have been widely acceptedas lawful possession, their destructive potential . . . cannotbe said to put gun owners on notice of the likelihood ofregulation. . . .

The precise scope of Staples is unclear. Does it applyto all mistakes of fact, or only to some?125 Perhaps therationale applies only to “legal facts” (or what others call a“fact with a legal element”).126 As the majority in Staplespointed out, the defendant was not charged with possessinga “firearm,” but with possessing a “machine gun.” Undereveryday usage, Staples’ “firearm” was not a machinegun—it became so only by dint of legal definition. That isto say that, at least on its face, Staples may not apply to“straight” mistake of fact cases. Thus, if a person possessescocaine, believing (even reasonably believing) it to be salt,he still might be liable under Staples, because the issue ofwhether a substance is cocaine is not a matter of legal fact.Such an interpretation, however, would be anomalous,particularly in light of the tenderness which the Courtexhibited toward truly “innocent” persons. Perhapspersons who possess white powder for which they have paidor been paid a large amount of money have a duty toinquire about the nature of the item. Indeed, such

125. A question left unanswered by the Staples opinion is what would occur ifthe defendant had known that the gun had become capable of being firedautomatically, but had no idea that such a capability would make it a “machinegun.” Here, it may be helpful to look at a British case decided by the Court ofAppeal almost two decades ago which seems directly contrary to Staples, Reginav. Howls. 1 W.B. 615 (1077). Howls had purchased what he believed to be—andwhat was warranted to him to be—an antique Colt .31 Revolver. The gun turnedout not to be an antique at all, but an operating, and operative, weapon. As inStaples, Howls was prosecuted for possessing the weapon without a propercertificate. As in Staples, Howls pled mistake—a more likely claim than inStaples, since the Act itself provided that it did not apply to “an antique firearmas a curiosity or ornament.” But it was also clear that the weapon was not in factan antique. The Court of Appeal upheld Howell’s conviction, finding that thestatute imposed strict liability. 126. Ashworth, supra note 61, at 236.



defendants may be “willfully blind.”127 But if circumstancesdo not suggest such a risk, then liability cannot be based onan alleged duty to inquire, which at least requiresnegligence.128

In one aspect Staples is somewhat disappointing. Thehope that the Court would take a firm position against theconstitutionality of strict criminal liability did notmaterialize. While the Court strongly endorsed arequirement of mens rea, it did not rule out the possibilityof some strict liability crimes, either as a statutory matteror as a constitutional matter.129 This failure was even moredistressing, because the case presented what seemed to bean outrageous attempt to impose strict liability—Staplesfaced a maximum penalty of ten years in prison.130 Staplesoffered the Court an opportunity to agree with thosecommentators who have argued that any imprisonment fora strict liability offense is unjust. Or, in a less sweepingposition, the Court could have held that any crime with apotential term longer than “x” years could not impose strictliability.131 Instead, Justice Thomas maintained that theduration of imprisonment, though important, was not a

127. Douglas Husak & Craig A. Callender, Wilful Ignorance, Knowledge, andthe “Equal Culpability” Thesis: A Study of the Deeper Significance of thePrinciple of Legality, 1994 Wis. L. Rev. 29, 34 (1994).

128. Professor Ashworth would allow mere tort negligence to suffice forliability here. If that view is correct, he differs from von Hirsch and Husak, whospecifically require “gross” or “criminal” negligence before a violation of the dutyto inquire occurs. See Husak & von Hirsch, supra note 61.

129. This reading was reinforced by the Court’s footnote 5 in thechronologically later case of X-Citement Video:

“The difference in congressional intent with respect to section 2251 versussection 2252 reflects the reality that producers are more conveniently ableto ascertain the age of performers. It thus makes sense to impose the riskof error on producers. Although producers may be convicted under section2251(a) without proof they had knowledge of age, Congress hadindependently required both primary and secondary producers to recordthe ages of performers with independent penalties for failure to comply.”

United States v. X-Citement Video, Inc., 511 U.S. 64, 76 n.5 (1994).130. Staples, 511 U.S. at 614.131. See Frances Sayre, The Present Significance of Mens Rea in Criminal

Law, Harvard Legal Essays 399, 408 (1934); Singer III, supra, note 105. But seeSimons, supra note 4.



determinative factor in deciding the strict liability issue.Not even a ten year sentence, standing alone, wouldpreclude strict liability. The clarion call for which somehad hoped was not only muted; it was non-existent. As aresult, the limitations on the creation of strict liabilityoffenses remain unclear.132

Perhaps the most striking point about Staples,however, is not that it accepted mens rea as a requisite forculpability, but that it adopted knowledge as the properlevel of mens rea. In the three other cases discussed, theCourt essentially was “bound” to require knowledge if itrequired any mens rea. Cheek and Ratzlaf cited numerouscases which had interpreted the word “willfully” to mean aknowing failure to comply with a known duty; it wouldhave been virtually impossible for the Court to havedecided suddenly that a reckless or negligent failure to beaware of the law was nevertheless “willful.” Similarly, inX-Citement Video, the statute itself expressly requiredknowledge. Although the Court might have concluded that“knowingly” modified the verbs in the statute, whereasrecklessness was sufficient as to the age of the actresses,133

that position would have been difficult. But the statute inStaples had no mens rea word at all; the Court easily couldhave construed the statute to require recklessness,criminal negligence, or even tortious negligence.134 TheCourt’s decision to require knowledge is therefore

132. See Michaels, supra note 30.133. In fact, at least one court had taken this approach. See, supra note 99

and accompanying text. This is a difficult, but not impossible, position to accept.The Model Penal Code, for example, takes the general approach adopted by theCourt here: the mens rea term reads all the way down the statute. Model PenalCode § 2.02(3). But the Code concedes the possibility that different mens rearequirements could apply to different elements of the statutory offense, even ifthe statute does not so state. Id. § 2.02(4).

134. The government apparently conceded that if mens rea were needed at all,knowledge should be required. Staples, 511 U.S. at 620-21 (Ginsburg, J.,concurring). No mention of this concession is made in the majority opinion. Whythat concession occurred is a mystery. Still, the Court was not bound by thisconcession, and certainly was not bound by precedent to jump immediately tosuch a high level of culpability. As noted above, the Model Penal Code usesrecklessness, not the higher level of knowledge, as the “default” position where astatute is silent.



illuminating, for it indicates the depth of its concern withthe importance of mens rea.

Staples is an important advance upon earlier opinions,in part because it establishes a default position of“knowledge” for a statute that contains no mens rea term.135

X-Citement Video applies that term to all materialelements of the offense. And, assuming that knowledge iseither equivalent to or greater in culpability than“willfulness,”136 Ratzlaf and Cheek make the ignorance of alegal duty a relevant “defense.” In combination, then, thesecases are potentially revolutionary, for they seem to allow aclaim of (even unreasonable) mistake of fact, or law, forevery federal statutory or regulatory infraction.137 Thus,they appear to articulate a strong stance against strictliability in all of its forms, and of the importance ofprotecting the “innocent” — even though that term isnowhere defined in any of the opinions.138

(C) The Passing of a Milestone: Regulatory Offenses andStrict Liability

A possible milestone appears to have been passed with

135. Although the Court had once before so construed a statute, see UnitedStates v. United States Gypsum Co., 438 U.S. 422 (1978), the decision in Stapleswas more explicit as to why that path was taken. Moreover, Gypsum involvedanti-trust charges, which have always been regarded somewhat differently.Staples, on the other hand, has no such historical singularity—the crime withwhich the defendant was charged is neither “malum in se” nor distinguishablefrom thousands of other regulatory offenses.

136. See Staples, 511 U.S. at 613-15.137. See Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) (citing

Staples in construing a federal statute that proscribed the sale of drugparaphernalia to require the government to prove that the defendant knew theitems he sold were likely to be used with illegal drugs—even though the statuteitself included no culpability term).

138. Notwithstanding Professor Michael’s vigorous arguments, see Michaels,supra note 30, Professor Wiley has argued that, except in Excitement Video, “theCourt has not yet relied on Congressional or constitutional sources for the moraldecisions [of innocence] in three of its four recent cases.” Wiley, supra note 29,manuscript at 42. He argues, further, the “problem of moral subjectivity showsthe wisdom of retaining the culpability rule as a matter of statutoryinterpretation rather than [as might be suggested] elevating it into aconstitutional doctrine.” Id. at 47.



this set of Supreme Court opinions. Many commentatorshave claimed that strict liability may be imposed andculpability need not be required for “regulatory” or “publicwelfare” offenses. The claim has many difficulties. First,no satisfactory criterion is available to identify a givenoffense as "regulatory" or "public welfare." Second, nopersuasive reason has been given as to why culpability isunnecessary for this category of offense. The foregoingseries of cases may signal a welcome end of the doctrinethat strict liability be imposed for so-called regulatoryoffenses.139

Some have argued that regulation of an activity isitself a lodestar either for a “duty to inquire,”140 or for theimposition of strict liability. The Staples Court, however,rejected this view:

(R)egulation in itself is not sufficient to place gun ownershipin the category of the sale or narcotics in Balint. The foodstamps at issue in Liparota were subject to comprehensiveregulations, yet we did not understand the statute there todispense with a mens rea requirement. . .141

139. See, for example, Professor Wiley’s point that “The federal ‘public welfareoffense’ doctrine has been revealingly unstable from the moment of its inception.”Wiley, supra note 29, manuscript at 70. As just one example, while some haveargued that the phrase includes instances where the public at large cannotprotect itself against insidious health dangers—botulism, or damage to theaquifer for example—the phrase has been applied to instances of huntingmigratory birds by the use of “baited fields.” See, e.g., United States v. Ireland,493 F.2d 1208 (4th Cir. 1973). See generally Arthur E. Schmaltz, Comment, TheAnti-Baiting Regulation Pursuant to the Migratory Bird Treaty Act: Have theFederal Courts Flown the Coup, or is the Regulation for the Birds, 14 Geo. MasonU. L. Rev. 407 (1991). While enforcement of treaties may be important tonational interests, nothing in the treaty in question requires the imposition ofstrict liability, and it is not plausible to argue that the public-at-large isendangered by the killing of such birds—at least unless they are endangeredspecies. The ease with which commentators—and some courts—havecharacterized areas as “public welfare” is disturbing, to say the least.

140. Douglas Husak, Ignorance of Law and Duties of Citizenship, 14 LegalStud. 116 (1994). See also Husak & Von Hirsch, supra note 61; Ashworth, supranote 61.

141. It must be remembered that the court here is using the term mens rea tomean knowledge.



The Court continued:142

Automobiles for example might also be termed “dangerous”devices and are highly regulated at both the state andfederal levels. Congress might see fit to criminalize theviolation of certain regulations concerning automobiles, andthus might make it a crime to operate a vehicle without aproperly functioning emission control system. But weprobably would hesitate to conclude on the basis of silencethat Congress intended a prison term to apply to a carowner whose vehicle’s emissions levels, wholly unbeknownstto him, began to exceed legal limits between regularinspection dates.

Surely the production of pornography in X-CitementVideo or the possession of guns in Staples could easily fallwithin the rubric of the “regulatory offense.” But bothStaples and X-Citement Video eschew such reliance. Evenin Freed and IMCC, which upheld strict liability in thecontext of ignorance of law,143 the Court identified manyother regulated items—paper clips, for example—that didnot give rise to strict liability.144

Possibly, however, persons actually in the regulatedindustry might still be required to take the risk of bothfactual and legal mistakes. After all, only the defendant inX-Citement Video was actually “in the business”: Liparotawas not a grocer, Ratzlaf was not a banker, and (at least sofar as the Supreme Court indicated) Staples was neither aseller nor a dealer of guns. Moreover, the persons uponwhom the Court focused in its hypotheticals—the courier inX-Citement Video, or the spouse evading alimony inRatzlaf—were likewise not “in the business.”145 Given this

142. Ironically, the example of automobiles disagrees directly with the positiontaken by Professor Ashworth. See Ashworth, supra note 61, at 235.

143. Subject, of course, to our caveats about how narrowly these cases should infact be construed.

144. As Professor Wiley has observed, “these four opinions all shared the effectof interpreting statutes to save imaginary but morally innocent people from thethreat of future government prosecution.” Wiley, supra note 29, manuscript at31.

145. Professor Wiley has reached the same conclusion:



distinction, the argument concludes, the Court still mightimpose strict liability upon persons actually “in” thoseindustries.

We reject this possible interpretation of these cases.Government regulation is now so pervasive that virtuallyanyone is on notice that almost any activity in which sheengages might in some way be regulated by thegovernment. The basis for confining strict liability toregulatory offenses—if it ever was viable—is no longerplausible.

III: THE ARGUABLE RETREAT: MONTANA V.EGELHOFF

With such an overpowering set of decisions, it wouldhave been plausible, by the end of the 1994 term, to suggestthat Packer’s hesitant conclusion that mens rea was onlysometimes required should now be expressed with fewerreservations. If so, that optimism was to last precisely oneterm. In Montana v. Egelhoff, decided in 1996, the Courtnot only revived Packer’s ambivalence, but appeared todraw a very clear line between federal and state notions ofthe relevance of mens rea.146 If the foregoing cases insections I and II suggest that mens rea is required in everyfederal statute, Egelhoff can be interpreted to indicate thatthere is no longer even a viable argument that mens rea isconstitutionally required. Since this interpretation is soobviously contrary to the Court’s previously documentedconcern to protect innocent persons from criminal liability,a detailed examination of the Court’s reasoning in Egelhoff

One thus might distinguish these cases by saying the former two (Staplesand Excitement Video) were about mistakes of “fact” while the latter two(Ratzlaf and Liparota) are about mistakes of "law.’" But this distinctionhere would conceal rather than illuminate the essential similarity of thefour cases: that the government’s interpretations all involved a statutorypresumption that some people might not know was true. . .The Court’smethod thus used extreme hypothetical to justify imposing a proof burdento save these innocents from unjust prosecutions.

Id. at 21. 146. 518 U.S. 37 (1996).



is warranted.Egelhoff involved a challenge to the constitutionality of

the following Montana statute:

A person who is in an intoxicated condition is criminallyresponsible for his conduct and an intoxicated condition isnot a defense to any offense and may not be taken intoconsideration in determining the existence of a mental statewhich is an element of the offense unless the defendantproves that he did not know that it was an intoxicatingsubstance when he consumed, smoked, sniffed, injected, orotherwise ingested the substance causing the condition.147

In the early hours of July 13, 1992, Montana policeofficers found a station wagon stuck in a ditch along ahighway. In the front seat were two victims, each deadfrom a single gunshot wound to the head. In the back seatwas respondent Egelhoff, yelling obscenities. His handgun,with two empty casings, was found on the floor of the car.Egelhoff had gunshot residue on his hands, and his blood-alcohol content measured .36 percent. An ambulanceattendant testified that Egelhoff was the most violentperson with whom he had ever dealt.

Egelhoff was charged with two counts of deliberatehomicide, defined by Montana law as purposely orknowingly causing the death of another human being.148

He defended on the ground that his extreme intoxicationhad rendered him physically incapable of killing, so that anunidentified fourth person must have committed themurders; he did not expressly argue that his intoxicationreduced his mens rea. Egelhoff was allowed to introduceevidence of his extreme intoxication to support theseallegations, as well as to show why he was unable to recallthe events of the night. But the jury was specificallyinstructed that it could not consider the respondent’s“intoxicated condition . . . in determining the existence of a

147. Mont. Code Ann. § 45-2-203 (1987).148. Id. § 45-5-102(1)(a) (1995).



mental state which is an element of the offense.”149 Thejury was also expressly instructed that a “person actsknowingly when he is aware of his conduct or when he isaware under the circumstances his conduct constitutes acrime, or when he is aware there exists the high probabilitythat his conduct will cause a specific result.”150 The juryfound Egelhoff guilty on both counts, and the courtsentenced him to 84 years in prison.151

The Supreme Court of Montana reversed. It reasonedthat the defendant had a “due process right to present andhave considered by the jury all relevant evidence to rebutthe State’s evidence on all elements of the offense charged,”and that the challenged statute relieved the State of “partof its burden to prove beyond a reasonable doubt every factnecessary to constitute the crime charged.”152 The UnitedStates Supreme Court granted certiorari and reversed.

Egelhoff is extraordinarily difficult to decipher. Fiveseparate opinions were written. Justice Scalia spoke forfour Justices in construing the statute as a restriction on adefendant’s right to introduce evidence. Such restrictionsdo not offend due process, according to Scalia, unless theyviolate a “fundamental principle of justice.”153 Heconcluded that the defendant had failed to prove that afundamental principle of justice is violated when a stateprecludes the jury from considering voluntary intoxicationin determining whether a defendant possessed the degreeof mens rea required for criminal liability.

The concurrence of Justice Ginsburg, necessary for adecisive vote, took a totally different approach to the issuebefore the Court. Contrary to the view taken by the

149. Id.150. Egelhoff, 518 U.S. at 39.151. Almost certainly the jury simply did not believe Egelhoff’s preposterous

claim that an unidentified fourth person committed the killings. The residue onhis hands is hard to reconcile with his allegation that he did not fire the shots.And why would a stranger come into the car, pull out Egelhoff’s gun, shoot twopersons in the head, and leave the defendant unscathed?

152. State v. Egelhoff, 900 P.2d 260, 266 (Mont. 1995) rev’d sub. nom. Montanav. Egelhoff, 518 U.S. 37 (1996).

153. Egelhoff, 518 U.S. at 42.



Supreme Court of Montana, Ginsburg contended that thestatute should not be categorized as evidentiary. Instead,she claimed the Montana legislature had effectivelyrewritten the law of murder. As a result of this rewriting,Ginsburg argued, the criminal act of murder could becommitted purposely, knowingly, or “under circumstancesthat would otherwise establish knowledge or purpose butfor the defendant’s voluntary intoxication.”154 She claimedthat such a rewriting of the mens rea of the crime did notviolate the constitution, since “states enjoy wide latitude indefining the elements of criminal offenses.”155

Justice O’Connor, joined by Stevens, Souter, andBreyer, dissented. She agreed with Justice Scalia that theMontana statute should be construed as evidentiary ratherthan as a substantive rewriting of the offense. UnlikeScalia, however, O’Connor maintained that Montanalacked an adequate justification for disallowing evidence ofintoxication. She indicated, however, that “the due processproblem presented in this case would not be at issue” if, asJustice Ginsburg had argued, Montana had simplyredefined the mens rea of the crime of murder.156

Justice Souter, in a separate dissent, was even moreclear on this point: He expressed “no doubt that a Statemay so define the mental element of an offense thatevidence of a defendant’s voluntary intoxication at the timeof commission does not have exculpatory relevance.”157 Hebelieved, however, that the opinion of the MontanaSupreme Court had precluded this construction of thestatute. Forced to interpret the statute as evidentiary, he

154. Id. at 56.155. Id. at 58, (citing Martin v. Ohio, 480 U.S. 228 (1987) and Patterson v.

New York, 432 U.S. 197 (1977)).156. Justice O’Connor noted that:

A state legislature certainly possesses the authority to define the offensesit wishes to punish. If the Montana legislature chose to redefine thisoffense so as to alter the requisite mental-state element, the due processproblem presented in this case would not be at issue. There is, however, noindication that such a redefinition occurred.

Egelhoff, 518 U.S. at 71.157. Id. at 72.



agreed with O’Connor that the state had failed to provide“a convincing argument” for “cutting the conceptual cornerby leaving the definitions of culpable mental statesuntouched but excluding evidence relevant to this proof.”158

Finally, Justice Breyer, speaking for himself andJustice Stevens, dissented separately as well. He agreedthat the statute should not be construed to redefine themental element of deliberate homicide. Such a reading,according to Justice Breyer, would “produce anomalousresults.”159 He was noncommittal, however, about whetherthese anomalies would amount to a constitutional defect;he explicitly reserved judgment about whether the statecould have redefined the offense in the manner suggestedby Justice Ginsburg.160

The threads of these five opinions might be read tosuggest, although not actually to hold, that a state is free toredefine the mens rea elements of its crimes in any way itchooses—and may even abolish them altogether. Althoughthis position is most clearly endorsed by Justice Ginsburg,the plurality expressed its “complete agreement” withGinsburg’s approach.161 In an instructive footnote, Scaliaindicated that he chose to construe the statute asevidentiary “simply because that is how the Supreme Courtof Montana chose to analyze it.”162 Only Justices Breyerand Stevens “reserve judgment” about whether theconstitution would permit Montana to redefine the law ofmurder in the manner suggested by Justice Ginsburg, butthese Justices also joined Justice O’Connor’s dissent inwhich she claimed that such a construction would not haveraised a constitutional issue—if it had conformed to theapproach taken by the Montana Supreme Court.163

158. Id. at 79.159. Id. at 81.160. Id.161. Id. at 50 n.4. Justice Scalia agreed that if Ginsburg’s interpretation of

what Montana had done were correct, the statute would still be constitutional.But he disagreed that Ginsburg had correctly interpreted what Montana haddone. Id. at 49.

162. Id.163. Id. at 70 (O’Connor, J., dissenting).



Commentators have disagreed radically about whetherEgelhoff represents an abrupt departure from the directiontaken by the Court in the cases discussed in Parts I and IIof this article. Views of the breadth of the state’sconstitutional power have led one commentator to statethat “[Egelhoff] solidifies the Supreme Court’s indifferenceto the relationship between culpability and punishment.”164

Another commentator reads the case to proclaim that“Winship is dead.”165 We are less certain, and we proposean interpretation of Egelhoff to suggest that it may notundermine the Court’s commitment to protect innocentpersons from criminal liability. We recognize that our viewmay be incorrect; perhaps we are whistling past thecemetery, or are overly optimistic.166 In what follows, weare both aware and wary of these possibilities.Nonetheless, we suggest not only that Egelhoff is not theend of mens rea, but may actually be consistent with theCourt’s general commitment to protect innocence that wehave described in Sections I and II. Justice Ginsburgspeaks of the “wide latitude” enjoyed by states in definingthe elements of crimes.167 She does not say, however, thatthis latitude is unlimited. Efforts to identify these limitsshould strive to be consistent with the cases that precedeEgelhoff, particularly since a contrary reading is totally atodds with the approach to the essential nature of mens reataken in the tetralogy just discussed in parts I and II ofthis paper.

We begin with Justice Scalia’s plurality opinion inEgelhoff, which treats the issue as one of evidence. In so

164. Ronald J. Allen, Forward: Montana v. Egelhoff—Reflections on the Limitsof Legislative Imagination and Judicial Authority, 87 J. Crim L. & Criminology633, 650 (1997).

165. Joshua Dressler, supra note 164, app. at 654. See also Donald R. Stuart,supra note 164, app. at 661 (noting that “Egelhoff appears to confirm that there isno constitutional principle in the United States under the due process clause orthe Eighth Amendment against a legislature removing any meaningful faultrequirement from a crime as serious as murder” ).

166. Mueller saw Lambert as the wave of a brave new world of mens rea. Hishopes were soon deflated. See Mueller, supra note 67, at 1060.

167. Egelhoff, 518 U.S. at 518 (citing Martin v. Ohio, 480 U.S. 228 (1987);Patterson v. New York, 423 U.S. 197 (1977).



doing, he rejects the categorical form of a proposition onwhich the State Supreme Court was said to rely—the DueProcess Clause does not guarantee that defendants havethe right to present “all relevant evidence to rebut theState’s evidence on all elements of the offense charged.”168

As Scalia pointed out, many familiar and unquestionablyconstitutional evidentiary rules authorize the exclusion ofmaterial evidence.169 Each such rule may have the effect offacilitating the conviction of criminal defendants. By whatcriterion should the constitutionality of these rules beassessed? The plurality answered that such a rule does notviolate due process “unless it offends some principle ofjustice so rooted in the traditions and conscience of ourpeople to be ranked as fundamental.”170 Controversy abouthow this abstract criterion should be understood andapplied provides the most useful device for contrastingvarious interpretations of the scope and reach of Egelhoff.

After a long discussion of precedent on the evidentiaryissue, the Court seemed to conclude that some rules thatexclude relevant evidence violate fundamental principles ofjustice, whereas others do not. Where this elusive line is tobe drawn is uncertain. What factors are most influential indetermining whether a statute that undermines thedefendant’s ability to rebut the state’s evidence ofculpability satisfies or offends a “fundamental principle ofjustice”? This phrase could be interpreted in such a way as

168. Egelhoff, 518 U.S. at 213 (quoting State v. Egelhoff, 900 P.2d 260, 266(Mont. 1995)). It is hard to believe, however, that the Montana Supreme Courtactually embraced the categorical form of the proposition which Scalia identifiesand rejects. No one seriously believes that all relevant evidence — including thatwhich is privileged, for example — must be admissible.

169. Defendants lack the right to offer evidence that is “incompetent orprivileged, or otherwise inadmissible under standard rules of evidence.” Egelhoff,518 U.S. at 42 (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). Moreover,reliable evidence can be excluded because of the defendant’s failure to complywith procedural requirements. Id. Finally, Justice Scalia indicates thatMontana’s rules provide for the exclusion of relevant evidence “if its probativevalue is substantially outweighed by the danger of unfair prejudice, confusion ofthe issues, or misleading the jury, or by considerations of undue delay, waste oftime, or needless presentation of cumulative evidence.” Id. (quoting Fed. R. Evid.403; Mont. R. Evid. 403).

170. Egelhoff, 518 U.S. at 52.



to preserve what we have identified as the Court’scommitment to protect innocent persons from criminalliability (which one would hope would qualify as afundamental principle of justice). As we have seen, theprotection of innocence has formed the cornerstone ofrecent Supreme Court decisions that identify the conditionsunder which mens rea is required as a prerequisite toliability.

Examples of principles that the Court regards asfundamental would be helpful in understanding how thiscriterion should be construed. Although the plurality doesnot unequivocally commit itself to any such examples, ithints that “the right to have a jury consider self-defenseevidence” may qualify as fundamental.171 But what aboutstatutes—such as that assessed in Egelhoff—that preventdefendants from disproving elements of criminal offenses?

Suppose, for example, that a state provided that“mistake of fact may not be taken into consideration indetermining the existence of a mental state which is anelement of a criminal offense.” We will apply Egelhoff tothis hypothetical statute to help illustrate the difficulty ofidentifying the Court’s views about the constitutionalstatus of mens rea. If there are no limits on the authorityof states to redefine crimes or even to eliminate mens reaentirely, this statute—no less than that actually upheld inEgelhoff—should be constitutional.172 On the one hand,Egelhoff may stand for the power of states to abolishculpability as a precondition for criminal liability. On theother hand, the Court’s reasoning may have an almostunique application to voluntary intoxication,173 so that most

171. Id. at 54. See also Martin v. State, 480 U.S. 228 (1977).172. Commentators disagree about the implications of Egelhoff for our

hypothetical statute. Compare Charles Nesson, supra note 164, app. at 658(“[N]othing in the Montana case says that Montana would ignore the classic linebetween intentional crime and accident”) with Abner Greene, supra note 164,app. at 678 (“Nesson is wrong to suggest that Montana maintains the linebetween intentional crime and accident”).

173. Although the Court consistently supposed that the Montana statuteprecludes defendants from alleging that intoxication precludes mens rea when itis voluntary, the statute itself does not explicitly create an exception for non-



other statutes that preclude defendants from disprovingthat their conduct satisfies the mens rea of a criminaloffense—such as our hypothetical—would likely be found tobe unconstitutional.174

A. Historical Practice

The Egelhoff Court cited at least two criteria tosupport the conclusion that the Montana statute does notoffend a “fundamental principle of justice.” The first ofthese criteria is “historical practice.” According to theplurality, “our primary guide in determining whether theprinciple is fundamental is, of course, historical practice.”175

It referred to the treatises of Hale, Blackstone, and Coke asauthority for the proposition that, at common law, adefendant was deemed “doubly culpable” if he committed acrime while drunk, and was precluded from arguing thathis voluntary intoxication prevented him from possessingthe mens rea needed to commit a crime.

Any such appeal to history involves a number offamiliar and immediate difficulties. First, historicalrecords are notoriously ambiguous or incomplete. Therecord on the common law position with respect tointoxication and innocence, for example, is enormouslycontroversial.176 Moreover, reasons must be given to show

voluntariness per se. Instead, the statute allows a defense if a defendant provesthat he did not know that it was an intoxicating substance. Presumably, adefendant may become intoxicated non-voluntarily—when he acts under duress,for example—even though he knows that the substance he has consumed isintoxicating. In addition, the statute does not indicate the standard by which adefendant is required to prove that he did not know the substance to beintoxicating.

174. See Jerry Norton, supra note 164, app. at 674 (noting that “this case mayreally only be about the intoxication defense. This defense has had a long historyof ‘curious,’ if not downright illogical, statutes and rules”).

175. Egelhoff, 518 U.S. at 43 (emphasis added). The words “primary” and “ofcourse” suggest that this criterion is to be given special significance over othercriteria.

176. First, to discern the law of any given jurisdiction would be difficult, as theambiguities inherent in every judicial decision are well-known. Second, to reachany consensus as to the “historical picture” from the case law of fifty jurisdictions(leaving England and other commonwealth countries aside) exacerbates the



why history should be so significant in the endeavor toidentify fundamental principles of justice. Presumably,Hale, Blackstone, and Coke endorsed a number ofsignificant injustices,177 and were frequently incorrect instating the law.178 The Justices have engaged in lengthy

situation. Treatises which attempt to do so either use qualifiers (“in mostjurisdictions”) or run the risk of oversimplification. The use of history issufficiently controversial when one document—the Constitution—is involved. Toattempt to discover firm historical footings over a century involving numerousjurisdictions, with shifting concepts, is even more problematic. Third, on the veryissues involved here—the placement of burdens of proof and the relevance ofmens rea—nineteenth century courts were hopelessly muddled, using differentterms with the same meaning, and the same term with different meanings. SeeGeorge P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden ofPersuasion Practices in Criminal Cases, 77 Yale L.J. 880 (1968). Fourth, theseuncertainties are compounded by the substantial, if not total, failure of the textwriters to clarify the issue; indeed, in several instances the commentators areguilty of a simple misinterpretation—perhaps not too startling when onediscovers that some of them were not even lawyers. Egelhoff represents the problem of relying on writers of texts to identifyhistorical practice. Scalia is clearly correct that these writers announced that acrime done while intoxicated was “twice damned.” But not a single decision hasbeen unearthed in which a punishment was actually increased because of thedefendant’s intoxicated state. For capital offenses, of course, such an increasewas impossible. And for lesser offenses, which were punished less severely, weknow of no instance in which a court announced that, although it would normallysend the defendant to Georgia or Australia for his offense, it was sending him tothe gallows because of his intoxication. The rhetoric of the commentators, that isto say, may well have been rhetoric not at all reflective of actual practice. It is atleast suspicious that none of the treatises cited by Scalia actually cites a reporteddecision which enforces the stringent moral opprobrium that the writers allege tohave been ubiquitous. Of course, history is a guide—sometimes a very helpful guide. But in Egelhoff,the plurality’s reading of history is certainly debatable, and its application to thecase at hand is even more uncertain. But the opinion in Egelhoff runs anothergauntlet. Even Justice Scalia agreed that the intoxication doctrine—howeverdistorted in its application to non-homicide cases—was initially generated byjudges who sought to avoid the death penalty for defendants who, because of theirobvious intoxication, did not “deserve” to die. By allowing Montana to ignoreintoxication in a potential death penalty case, Scalia disregarded the backgroundof the very historical record he otherwise embraced.

177. Allen observes that “[t]hese are the same gentlemen who believed, amongmany other quaint beliefs, that an age of majority (and thus criminalresponsibility) ranging upward from age seven years old is acceptable, whosebeliefs gave rise and sustenance to the bloody code of England, with its more than200 capital offenses and under which individuals as young as ten were executedfor stealing necessities.” Allen, supra note 164, app. at 651.

178. For a discussion of Blackstone’s misstatement as to mistake of law, see



and heated debates about the relevance of history toconstitutional adjudication.179

Yet a third difficulty is to identify the specifichistorical period that is to be used as the baseline ofanalysis. Exactly when in history should a given era beselected as authoritative of the “historical practice” towhich the Court will appeal? The plurality is not especiallyhelpful in resolving this matter. Egelhoff was said to bearthe burden to show that the rule that allows evidence ofintoxication to negate mens rea “was so deeply rooted at thetime of the Fourteenth Amendment (or perhaps has becomeso deeply rooted since) as to be a fundamental principlewhich that Amendment enshrined.”180 This passagesuggests that 1868, the year in which the FourteenthAmendment was ratified, should be used as the historicalbaseline—although the parenthetical leaves open thepossibility that subsequent developments may be decisiveas well.

The application of the plurality’s apparent answer tothe instant case creates an obvious puzzle. If 1868 is to beused as the historical baseline, one wonders why theplurality attaches so much significance to the writings ofHale, Coke, and Blackstone—each of whom, of course,wrote well before the adoption of the FourteenthAmendment. In any event, there is reason to doubt thatthe Court actually employs 1868 as the historical baselinein Egelhoff. Justice Scalia admits that a “new rule”emerged in 1819. This new rule, reprinted in virtuallyevery textbook that summarizes the common law, allowed ajury to consider intoxication when a defendant is chargedwith a crime of “specific intent,” but not with a crime of“general intent.”181 According to the plurality, however,

supra note 25. The felony murder doctrine is notoriously attributed to LordCoke’s misunderstanding of Lord Dacre’s Case, and has been criticized byeveryone from Thomas Hobbes to Judge Stephen to the Michigan Supreme Court.See generally People v. Aaron, 299 N.W. 2d 304 (Mich. 1980).

179. See, e.g. Medina v. California, 505 U.S. 437 (1992); Printz v. Montana,521 U.S. 98 (1997).

180. Montana v. Egelhoff, 518 U.S. 37, 45 (1996).181. See Joshua Dressler, Understanding Criminal Law § 10.06 (2d ed. 1996);



this “exception” to the older common law rule (thatallegedly precluded evidence of intoxication to underminemens rea for any crime) was “slow to take root.”182

Nonetheless, the plurality concedes, the “new rule wonout,”183 and eventually was adopted in most (but not all)jurisdictions by the end of the 19th century. Thesesubsequent developments, however, were apparentlyinsufficient to persuade the Court that the “new rule”became “deeply rooted” after the enactment of theFourteenth Amendment.

Why is this “new rule” not “deeply rooted,” eventhough it “won out”? Justice Scalia suggests at least twoanswers. First, a significant minority of states “eithernever adopted the new common-law rule at issue or haverecently abandoned it.”184 Second, the new rule wassubjected to widespread criticism by courts andcommentators.185 A rule that enjoys the status of a“fundamental principle,” he concluded, would attract amore “uniform and continuing acceptance.”186

To be sure, the plurality would find no difficulty inciting widespread criticism of this “new common-law rule”by scholars and judges, but dissatisfaction with this newrule—and its lack of adoption by several states—mighthave several explanations. Most cogently, these critics mayreflect unhappiness with the elusive distinction betweengeneral and specific intent rather than confidence thatintoxication should be utterly irrelevant to criminalliability.187

In short, the plurality appears to place upon thedefendant a virtually impossible burden, both legally andpractically: Unless one can show that (1) during the courseof several centuries, the common law has been (2)

Richard Singer & John LaFond, Criminal Law: Examples & Explanations 431(1997).

182. Egelhoff, 518 U.S. at 45.183. Id.184. Id. at 48.185. Id. at 50.186. Id. at 51.187. See, e.g., Model Penal Code § 2.08 Commentaries (1985).



unanimously viewed by (3) all states and territorial courts,as well as (4) writers, in considering “claim X” to berelevant to mens rea, and (5) in placing the burden of(dis)proof of that claim upon the prosecution, the state caneliminate that claim as relevant without violating dueprocess. In light of the murky state of information withregard to each of these parts, it is virtually impossible tothink of a claim that is not in jeopardy. Can the Egelhoffcourt really intend to place such a roadblock in the way ofits current movement towards adopting mens rea as abedrock of criminal law?

Let us apply this historical test to our hypotheticalstatute. What is the verdict of history about whethermistake of fact must be taken into consideration indetermining the existence of a mental state that is anelement of a criminal offense? The foregoing difficultiesmake the analysis uncertain.188 Again, one needs toidentify the historical period at which an answer should besought. According to some commentators, there may havebeen a time when “culpability distinctions based upon theactor’s state of mind were ignored.”189 Other authorities,however, argue that even early Anglo-Saxon law rejectedabsolute or strict liability for all harm caused.190 In anyevent, no one can doubt that a distinction betweenmistakenly and deliberately causing harm came to berecognized at a very early stage of the common law.Scholarly unhappiness with this distinction is rarelyexpressed191 and is quickly refuted to the satisfaction of the

188. Marianne Wesson notes that:[I]t does seem to me that a doctrine that requires for its application thekind of nuanced, multi-sourced, and inherently disputable historicalinquiry [Scalia] produces in his opinion is more likely to lead to a largerjudicial role in the adjudication of constitutional disputes over thesubstantive law of crimes than to a smaller.

Wesson, supra note 164, app. at 669.189. Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability,

31 Hastings L. J. 815, 823 (1980).190. Percy H. Winfield, The Myth of Absolute Liability, 42 L.Q. Rev. 37 (1926).191. See Dame Barbara Wootton, Crime and the Criminal Law: Reflections of

a Magistrate & Social Scientist (1963) (arguing that all offenses should be strictliability, with the culpability of offenders relevant only at the sentencing stage).



vast majority of commentators.192 No state fails to attachsignificance to the distinction between mistake and thedeliberate infliction of harm, although confusion remainsabout whether and under what conditions the mistakes tobe given exculpatory significance must be reasonable.193 Inshort, the verdict of “historical practice” would almostcertainly be much less favorable to the constitutionality ofour hypothetical statute than to the statute assessed inEgelhoff. From this perspective, at least, the right topresent evidence of mistake to negate mens rea seems amuch better candidate for being a “fundamental principleof justice.”

Even here, however, the record is not unambiguous.If, for example, we take 1868 as “the” relevant time frame,a few courts had already suggested that the legislaturemight be empowered to eliminate mens rea in some formsof crime. By 1900, the trend had grown erratically,although, as discussed in Part I and II, it was usually saidto be restricted to “public welfare” offenses.194 Leavingaside the controversy over whether these cases are properlyread, does this ambiguity in the historical record suffice toundermine the “uniform and continuing acceptance” thatScalia appears to demand? His opinion leaves suchquestions unanswered.

The issue may be even less clear with regard to other“defensive” claims.195 Historical ambivalence toward claimsof necessity,196 duress,197 and insanity,198 to name just three,

192. See H.L.A. Hart, Changing Conceptions of Responsibility, in H.L.A. Hart,Punishment and Responsibility 186 (1968).

193. Singer II, supra note 105.194. See Singer III, supra note 51.195. The project of applying the plurality’s reasoning to particular defenses is

beyond the scope of our inquiry. Whether a fundamental principle of justicerequires the state to allow defendants to produce evidence of various defensesdepends, of course, on how one decides whether a principle of justice isfundamental. If, however, the defendant really has the burden to prove that hisdefense was universally recognized historically, most defenses seem targets forpotential abolition.

196. Certainly with regard to homicide, necessity has been foreclosed inEngland. See Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884). And theEnglish Law Revision Committee even recommended that the defense be



would seem to suggest that a state, under Egelhoff, couldbar evidence of these claims. Would the Court really allowstates to deny the exculpatory significance of these claims?A system without each of these defenses is, if notunthinkable, at least unpalatable. Yet, if history is the“primary” guide to identifying fundamental principles ofjustice, these conclusions arguably represent the centralthrust of Egelhoff.

B. Justification

Historical considerations did not exhaust theplurality’s efforts to assess whether the Montana statute iscompatible with fundamental principles of justice. Inaddition, Justice Scalia claimed that the older common-lawrule “has considerable justification,”199 which “casts doubtupon the proposition that the opposite rule is a

abolished entirely in the commonwealth. Law Revision Commission, Report No.83—Defenses of General Applications 19-32 (1977). But abolition has notoccurred, and English courts still occasionally talk of necessitous circumstancesas relevant to culpability. But if the plurality in Egelhoff would find the recordunclear on intoxication, it would certainly find the historical record on necessityeven less likely to reflect a “fundamental principle of justice,” notwithstandingthat most commentators think the claim to be desirable, and required by notionsof justice.

197. Duress has only recently been recognized by English courts as relevant toaccomplice liability in homicide cases, DPP for No. Ire. v. Lynch, A.C. 653 (1975),and continues to be unavailable to the actual perpetrator of a homicide, even if heis duressed. See Regina v. Howe 1 All E.R. 771 (1986). Moreover, both courts andcommentators—the most obvious of whom is Judge Stephen—have demonstratedintense animosity toward the claim. See 3 J. Stephen, History of the CriminalLaw of England 107-08 (1883)

198. Three states have now “abolished” the insanity defense. See, e.g., Mont.Rev. Code Ann., § 46-14-201 (1979) (upheld in State v. Korell, 690 P. 2d 992(Mont. 1984)). See also Brian E. Elkins, Idaho’s Repeal of the Insanity Defense:What Are We Trying to Prove, 31 Idaho L. Rev. 151 (1994). Even friends of mensrea have sometimes suggested that the insanity plea be limited or abolished. SeeN. Morris, Madness and the Criminal Law (1982). In Leland v. Oregon, the Courtheld that due process—as then understood—did not bar Oregon from placingupon the defendant the burden of proving (beyond a reasonable doubt) insanity.343 U.S. 790 (1952). This strongly suggests that insanity is not relevant to mensrea, and hence may be abolished.

199. Montana v. Egelhoff, 518 U.S. 37, 49 (1996).



fundamental principle.”200 Thus this supposed justificationprovided the second criterion by which the pluralitydecided that the Montana statute does not violate afundamental principle.

In fact, Justice Scalia advanced two distinct allegedjustifications for failing to allow evidence of intoxication tonegate mens rea.201 Perhaps these two rationales play avery minor role in the reasoning in Egelhoff; they may beemployed merely to reinforce a conclusion the plurality hadreached on very different grounds. Despite this possibility,we will consider each alleged justification in turn, takingthe plurality at its word in supposing that these rationalesactually contributed to the holding.

(1) General and Specific Deterrence

Scalia began by explaining the first such justificationby citing studies by social scientists about the “largenumber of crimes” that are “committed by intoxicatedoffenders.”202 Since drunkenness contributes to criminalbehavior, the state has an obvious interest in deterringdrunkenness. The Montana statute might deterdrunkenness, and thus act as a general deterrent to crime.In addition, the statute “serves as a specific deterrent,”since persons who are “incapable of controlling their violentimpulses while voluntarily intoxicated go to prison.”203

How should this alleged justification for the Montanastatute be assessed? The argument in favor of theconclusion that the Montana statute creates a generaldeterrent contains two steps. The first step posits a

200. Id.201. Significantly, the dissenting opinion of O’Connor, Stevens, Souter and

Breyer fails to address either of the two justifications the plurality adduces infavor of the Montana statute. Although these Justices make some effort torespond to the Court’s historical arguments, they write that “the justification for[disallowing evidence of voluntary intoxication to disprove the existence of mensrea] is the State’s desire to increase the likelihood of conviction of a certain classof defendants. . . .” Id. at 61.

202. Id. at 49.203. Id.



correlation—indeed, a causal connection—betweenintoxication and violent criminal behavior. In light of thisapparent causal relationship,204 a statute that succeeds inreducing intoxication may also succeed in reducing crime.What is more dubious, however, is the second step of theargument—that the Montana statute is effective as ageneral deterrent. Will a statute that disallows evidence ofvoluntary intoxication to preclude mens rea induce somepersons who otherwise might have become intoxicated torefrain from drinking, and thereby decrease the number ofpersons who commit crimes because they are drunk?Although this premise is not fantastic, it does not seemprobable. Rules can have no effect as a general deterrentunless people are aware of them. Are persons who tend tobecome so voluntarily intoxicated that they do not knowwhat they are doing likely to be cognizant of the state’srules of evidence? No support is given for this second stepof the argument; no evidence is cited in favor of the viewthat alterations in the rules of evidence have ever changedthe behavior of a single drinker.205 Nor is it clear that evenpersons familiar with the rules of evidence (or their results)will cease drinking entirely. Most drinkers believe theycan control their intake, or the effects of that intake. It is,therefore, unlikely that they will be deterred by a threat ofpunishment if (a) they do not control their intake and (b)thereafter commit a crime.

204. Surprisingly, however, the most plausible challenge to the first step in thisargument comes from the very psychological studies cited by the plurality.According to one of the “explanatory frameworks” explored by Collins, theconsumption of alcohol does not cause persons to behave criminally, but onlyserves to provide a psychological “cover” for criminal behavior. See James J.Collins, Suggested Explanatory Frameworks to Clarify the Alcohol Use/ViolenceRelationship, 15 Contemp. Drug Probs. 107, 115 (1988). If this hypothesis iscorrect, reducing the incidence of intoxication may not decrease the rate of crimeafter all.

205. Perhaps such empirical evidence is not needed. All that may be requiredto support this justification is the judgment that a rational legislator couldconclude that the Montana statute would produce some effect as a generaldeterrent. The Court has explicitly rejected the relevance of empirical evidencethat purports to show the lack of deterrence in death penalty cases. Why is thisarea any different? On the other hand, the experience of Prohibition would alsothrow doubt on this premise.



The effectiveness of the statute as a specific deterrentto crime is equally problematic. This statute can serve as aspecific deterrent only if there exists some person whowould be convicted under the Montana rule who wouldotherwise have been acquitted. Any such person must havebeen able to create a reasonable doubt that his intoxicationenabled him to know what he was doing at the time of hiscriminal act. Such a person, then, would be free to commitfurther criminal acts that he would not have been able tocommit had he been convicted.

Again, the argument is not fantastic. But each stageof the argument seems dubious. The plurality does notprovide a single example of a defendant (in Montana orelsewhere) who ever succeeded in totally evading criminalliability by persuading a jury that his intoxication renderedhim incapable of knowing entirely what he was doing.206

Juries have proved remarkably skeptical of the defenseinvoked by defendants like Egelhoff.207 Even if such aperson exists, the Montana statute would not be likely toreduce the incidence of crime by rendering him incapable ofcriminal acts that he otherwise could have performed.Intoxicated offenders would not escape criminal liabilityaltogether in the absence of the Montana statute. The“new common law rule” does not result in an acquittal of allhomicide charges, but simply of first degree murder: the“specific intent” crime. For “general intent” crimes—suchas second degree murder, manslaughter, or negligenthomicide—the defendant still is liable.208 Thus the issue isnot whether such persons will be immediately freed to killagain, but rather how long they will be imprisoned. Oncethis consideration is added to the inquiry, the effectiveness

206. “Stress, mental disorder, intoxication, and other mental abnormalitiesmay give people crazy reasons for forming mens rea . . . but they negatesubjective mens rea exceedingly rarely.” Stephen J. Morse, Action and Value inCriminal Law 239, 244 (Stephen Shute, et. al., eds. 1993).

207. See supra note 151 and infra note 210.208. Montana has no homicide called “manslaughter,” but it has a functional

equivalent. For a discussion of the possible relevance to Egelhoff of Montana’speculiar structure of homicide offenses, see Tim O’Neil, supra note 164, app. at683.



of the Montana rule as a specific deterrent seemsimprobable.

The plurality, then, is quite uncritical of the empiricalassumptions that are needed to conclude that general andspecific deterrence provides “considerable justification” forthe Montana statute. In view of the plurality’s apparentunwillingness to subject these empirical assumptions toscrutiny, we now can inquire how this rationale might beapplied to our hypothetical statute. Would the Courtconclude that general or specific deterrence would beachieved by a rule that disallows mens rea to be negated byevidence of mistake?

Consider general deterrence first. The causalconnection between mistake and criminal conduct isprobably clear. Hunters who mistakenly confuse personswith deer, for example, are presumably more likely tocommit homicide than hunters who are not mistaken.Success in reducing the frequency of such mistakes, then,would probably reduce the number of killings performed bymistake. What is less clear, however, is whether a statutethat disallowed evidence of mistake to negate mens reawould have any effect in reducing the number of mistakes.Because of this new rule, would hunters (for example)really become more careful, knowing that they would facecharges of murder if they were mistaken? Any such effectmay be even more improbable than that assumed inEgelhoff. Although persons might employ variousstrategies to reduce the incidence of voluntary intoxication,it is somewhat harder to envision what comparablemeasures could be taken to reduce the frequency ofmistakes.

Perhaps our hypothetical statute might achieve ageneral deterrent effect not by inducing hunters (forexample) to become more careful, but by deterringaltogether such activities as hunting. If persons weresomewhat less likely to engage in conduct in whichmistaken killings take place, the number of such killingsmight decrease. Admittedly, some situations in whichmistaken killings take place are not so easily avoided. But



if persons abstained from a few such types of behavior, weconcede that a slight reduction in the rate of homicidesmight be anticipated.

Next, consider the specific deterrent effect ofpunishment under our hypothetical rule. Some persons, tobe sure, repeatedly succumb to voluntary intoxication. Asubclass of these persons, let us grant, commit criminalacts that they do not know they are performing. Supposefurther that an even smaller subclass of these personswould commit additional criminal acts unless they wereimprisoned. What is the analogue in the case of mistakendefendants? Are some persons “mistake-prone?” Imaginethat some such persons can be identified. A subclass ofthese persons, let us again grant, commit criminal actsthey do not know they are performing. Is it plausible tosuppose that an even smaller subclass of these personswould commit future criminal acts unless they wereimprisoned? Once again, such persons could presumablybe convicted of lesser offenses (if they exist) than those thatrequire knowledge; hunters who kill by mistake, forexample, may be reckless or negligent and presentlypunished accordingly.

We conclude that any appreciable general and specificdeterrent effects of our hypothetical statute are highlyspeculative. What is even more difficult to assess, however,is whether these effects are more or less likely than thoseinvolved in Egelhoff. Are the situations in which personswho are intoxicated perform killings harder or easier toavoid than the situations in which persons who aremistaken commit killings? Is the incidence of criminalconduct more or less likely to be reduced by theincarceration of persons who are “mistake-prone” than bythe incarceration of persons who frequently becomevoluntarily intoxicated? We have no confidence that thesequestions can be answered. On the supposition, however,that the Court would be just as uncritical of speculationabout the deterrent effects of precluding evidence ofmistake as of the deterrent effects of precluding evidence ofvoluntary intoxication, we see no clear basis for



distinguishing our hypothetical statute from that enactedin Montana.

The arguments are equally unclear when applied toother defensive claims. Stephen argued, for example, thatduress should not be a valid claim because the threat ofpunishment had to be greatest at the very time the actorwas being threatened.209 We find that argument to beludicrous—most any person who is threatened withvirtually certain death in the present, as contrasted withpossible legal execution in the future, would opt for thefuture execution. Still, the mere fact that persons ofStephens’ stature could entertain such an argument maysuggest that the exculpatory significance of duress is notrequired by a fundamental principle of justice. Similardoubts surround any attempt to argue that claims ofnecessity or insanity do not undermine deterrence, eitherspecific or general. As a last resort, it can be argued thatdisallowing any defensive claim can be said to promotedeterrence, since defendants can no longer believe thatthey can fool a jury into accepting their claim. Generaldeterrence is always theoretically undermined by anyexcuse which can be feigned. In the light of stories allegingthat several killers have been acquitted by reason ofinsanity after duping psychiatrists into believing that theywere mentally ill, it is hard to gainsay the argument thatthe elimination of all defensive claims would bolsterdeterrence.

In sum, these arguments finally boil down to questionsof proof: Who should carry the burden of demonstratingthat eliminating a specific claim does (or does not) reducethe crime rate? Requiring legislatures to show some reasonto believe that there would be some effect seems not overlydemanding. The Montana legislature provided no suchevidence, despite the availability of information from anumber of other states which had taken a similarposition.210 Surely statistics from those jurisdictions were

209. See, supra note 197.210. Nine other states exclude evidence of voluntary intoxication from the

mens rea inquiry. For a detailed discussion of the practice of other jurisdictions,



available on the amount (if any) of (a) drinking and (b)crime which had been reduced by their statutes.

Arguably, however, all of the foregoing conjectureabout deterrence is quite beside the point. Despite the factthat this rationale is mentioned by the plurality, it seemshard to imagine that the constitutionality of a rule thatreduces the state’s burden to prove mens rea should dependon the extent to which this rule could be expected to deter.Why should speculation about deterrence be significant indetermining whether a rule qualifies as a fundamentalprinciple of justice? The real rationale of the plurality inEgelhoff, we suspect, is located elsewhere.

(2) The Equal Culpability Thesis

Justice Scalia mentions a second non-historicaljustification in favor of the Montana rule. He maintainsthat the statute “comports with and implements society’smoral perception that one who has voluntarily impaired hisown faculties should be responsible for theconsequences.”211 Since this rationale is expressed in asingle sentence, considerable ingenuity is required toreconstruct it into a whole argument, and to assess itssignificance in the overall context of the opinion inEgelhoff. We believe that such ingenuity will be repaid,however, since this final rationale provides a promisingbasis for distinguishing our hypothetical rule from theMontana statute. Unlike the foregoing considerations,which refer to history and empirical conjecture, thisrationale alone appeals to a moral principle rather than apolicy in favor of the Montana statute.212 We believe thatthis final justification provides the most insightful meansto understand the extent to which Egelhoff is consistentwith or departs from the Court’s prior commitment to

see Brett G. Sweitzer, Implicit Redefinitions, Evidentiary Proscriptions, andGuilty Minds: Intoxicated Wrongdoers After Montana v. Egelhoff, 146 U. Penn L.Rev. 269 nn.21, 30 (1997).

211. Montana v. Egelhoff, 518 U.S. 37, 49 (1996).212. Ronald Dworkin, Taking Rights Seriously (1978).



protect innocent persons from criminal liability.This rationale receives its most explicit formulation in

the concurrence of Justice Ginsburg. “The essentialquestion,” she writes, is whether a state may “make thejudgment that two people are equally culpable where onecommits an act stone sober, and the other engages in thesame conduct after his voluntary intoxication has reducedhis capacity for self-control.”213 If this “essential question”is answered affirmatively, Ginsburg is prepared to acceptthe Montana statute as compatible with fundamentalprinciples of justice and thus with due process. FollowingGinsburg, we will call this final rationale the equalculpability justification in support of the Montana statute.

How should the equal culpability rationale for theMontana statute be assessed?214 The plurality claims tofind a “moral perception” in “society” in support of thejudgment that persons who commit criminal actsknowingly are no more culpable than persons who commitcriminal acts as a result of their voluntarily intoxication.One would expect that an allegation about a moralperception in society would have to be supported bysociological data. Justice Scalia, however, does not reallyseem to be concerned about whether there exists aconsensus in society in favor of equating the culpability ofthese two categories of offenders.215 Instead, he defends

213. Egelhoff, 518 U.S. at 57 (Ginsburg, J., concurring).214. It may be helpful to notice that allegations that two different categories of

offenders are equal in their degree of culpability have been made in severalcontexts other than that of voluntary intoxication. One such context is that oftransferred intent. According to many courts and commentators, a defendantwho intends to kill and succeeds in killing the person he intends to kill is no moreculpable than a defendant who intends to kill but accidentally kills someone otherthan the person he intends to kill. See Douglas Husak, Transferred Intent, 10Notre Dame J.L. Ethics & Pub. Pol’y 65 (1996). A second such context is that ofwillful blindness. According to many courts and commentators, a defendant whoperforms an act knowingly is no more culpable than a defendant who would haveperformed that act knowingly but for his willful blindness. See Husak &Callender, supra note 127.

215. It is difficult to understand how a societal judgment in favor of therationale could be defended by either of the considerations the Court actuallyprovides. A single legal case hardly demonstrates a social consensus. Nor do twopsychological studies prove that such a perception exists.



this supposed equivalence in two very different ways.First, he cites a single case.216 Second, he refers to twopsychological studies in favor of this supposedequivalence.217

Justice Scalia cites McDaniel v. State,218 in which adefendant had kept a knife to the throat of his victim forthirty minutes in the course of committing armed robbery,a specific intent crime. The defendant appealed hisconviction on the ground that he was too intoxicated tohave formed the requisite intent. According to the court,only a degree of intoxication that would have inducedinsanity would have sufficed to undermine the defendant’scriminal intent.219 In a special concurrence, Justice Suggconcluded that:

[T]ere is, in truth, no injustice in holding a personresponsible for his acts committed in a state of voluntaryintoxication. . . . [I]f by a voluntary act he casts off therestraints of reason and consciousness, no wrong is done tohim if he is considered answerable for any injury which inthat state he may do to others or to society.220

Justice Sugg does not offer a further explanation,however, about why he believes this rule to be sound.Although McDaniel may provide a precedent to supportJustice Scalia’s claim about the culpability of voluntarilyintoxicated offenders, the deeper justification for this claimhas yet to be identified.

The two psychological studies cited by Justice Scaliamight provide this deeper justification. According toScalia, these studies show that the empirical connection

216. Egelhoff, 518 U.S. at 50 (citing McDaniel v. State, 356 So.2d 1151 (Miss.1978)).

217. See Collins, supra note 204, at 115; Barbara Critchlow, The Powers ofJohn Barleycorn: Beliefs About the Effects of Alcohol on Social Behavior, 41 Am.Psychologist 751, 754-55 (1986).

218. Egelhoff, 518 U.S. at 50 (citing McDaniel v. State, 356 So.2d 1151 (Miss.1978)). 219 See McDaniel, 356 So.2d at 1157.

220. Id. at 1158 (Sugg, J., concurring) (quoting People v. Rogers, 18 N.Y. 9(1858)).



between intoxication and crime—so seemingly well-established—may be “as much cultural aspharmacological.”221 The correlation between intoxicationand crime, he asserts, differs radically from one culture toanother. How might these differences be explained?Drinkers who resort to criminality may not be respondingsimply to the pharmacological effects of alcohol. Accordingto Scalia, these psychologists contend that violent drinkersmay be “behaving in accord with their learned belief thatdrunks are violent.”222 This empirical finding, the pluralityconcludes, “adds additional support to the traditional viewthat an intoxicated criminal is not deserving ofexoneration.”223

These two psychological studies might support theconclusion the plurality has drawn in the following way.The common understanding—reflected in the majorityrule—is that violent criminals are too intoxicated to knowwhat they are doing because their behavior is attributed inlarge part to the pharmacological properties of the drug.224

They plead that alcohol, not their culpable state of mind,had caused them to commit a crime. Scalia’s studies,however, purport to show that alcohol lacks thispharmacological property. Instead, drinkers who resort tocriminality are merely behaving in accordance with theirlearned expectations that they will react violently whenthey become intoxicated. In other words, such drinkersknow what they are doing, and also know that theirconduct is expected. If this is an accurate description, howshould their claim to exculpation now be understood?These drinkers must allege that their learned expectations

221. Egelhoff, 518 U.S. at 51.222. Id.223. Id.224. Incredulity that the defendants were really too intoxicated to know what

they were doing is typically expressed in cases in which the defense is raised. InMcDaniel, the court remarked that “the defendant fled the scene . . . upon theapproach of a police car, [which] itself reflects a knowledge of wrongful actions.”McDaniel, 356 So.2d at 1153. Moreover, “the defendant had no difficultyremembering exactly how much he had drunk but allegedly could remembernothing else.” Id. at 1154.



about the effects of alcohol, not their culpable state of mind,had caused them to commit a crime. This latter plea,however, may lack exculpatory significance.225 Since thesepsychological studies undermine the most plausible basisfor thinking that intoxication lessens culpability, theysupport the conclusion that intoxicated offenders are justas culpable as those who commit criminal acts knowingly.These considerations, although hardly dispositive,226 mightprovide a rational basis in favor of the Montana statute.227

225. Justice Scalia does not explain why this plea is so obviously lacking inexculpatory significance to be taken seriously. Perhaps he believes that onlythose influences on criminal behavior that operate pharmacologically rather thanpsychologically could have any plausible relevance in exculpation. This beliefcould be challenged; arguably, it is challenged in the second of the two studiescited by Justice Scalia. That author cautions that “the view that the effects ofalcohol on social behavior are not physiologically bound but are instead learned isnot to say that these effects are any less “real.” See Critchlow, supra Note 217, at751.

226. The first study Scalia cites does not adopt the interpretation Scaliadescribes, but includes it among “four explanatory frameworks” to understand theconnection between alcohol and violence. One of these “frameworks,” called a“deviance disavowal framework,” “emphasizes drinking as an excuse forbehavior.” Collins, supra note 204, at 115 (emphasis in original). But Collinsdoes not endorse this (or any other) framework, concluding instead that each“may generate needed theoretical insights for the understanding of whether andhow drinking accounts for violence.” Id. at 118.

227. In fact, Justice Scalia need not claim that this view that alcohol does notaffect cognition is correct; as a matter of federalism, and perhaps even of merechecks and balances, he need only conclude that it would not be irrational for theMontana legislature to conclude that this is so. Deference both to the legislature,and even more directly to a state legislature, would then lead to a refusal toinvalidate the statute. Thus, Scalia’s use of these materials suggests that he isreframing the issue: Could the legislature of Montana reasonably conclude thatintoxication does not affect cognition? If there is empirical scientific evidencequestioning our intuitive sense that drunks do in fact “think” differently thansober persons, federalism would allow the state to accept that evidence until it isrebutted. Furthermore—since nine other states have reached a similar position—the view is reasonable almost by definition. It seems clear, however, that theMontana legislature did not rely upon such data, since it retained involuntaryintoxication as a relevant claim. If the legislature had believed intoxication hadno pharmacological effect on the brain, the (in)voluntariness of the drinkingwould be irrelevant. This piece is not the place to discuss in detail the actual findings on thisquestion. A few words, however, may be in order. First, most of these studiesonly support Scalia’s interpretation in a very broad sense. In one of the broadestsurveys of studies conducted, Marlatt and Rohsenow refer to only one studyinvolving aggression. G. Marlatt & D. Rohsenow, Cognitive Processes in Alcohol



Still, the question of whether the Montana statute canbe defended by an equal culpability rationale depends to agreat extent on how that statute should be understood.Exactly who is said to be just as culpable as the defendantwho commits a criminal act knowingly? In order to answerthis question, two different interpretations of the Montanastatute must be distinguished.

(1) We will call the first such interpretation the strictliability interpretation. The unqualified claim that aperson “who has voluntarily impaired his own facultiesshould be responsible for the consequences” appears on itsface to be a rule of strict liability.228 It seems to hold that avoluntarily intoxicated defendant is responsible forwhatever consequences he brings about.229 According tothis interpretation, a defendant who commits a criminal actknowingly is no more culpable than a defendant whocommits that act while voluntarily intoxicated.230

Use: Expectancy and the Balanced Placebo Design, 1 Advances in Subs. Abuse159 (1980). Most of the experiments were not concerned with aggressiveness ofbehavior, but with much less relevant matters, such as whether those who weretold that their drinks contained alcohol would drink more than those who weretold that their drinks were non-alcoholic. Only one such study actually focused onaggressiveness. Second, while the effect of alcohol on behavior controls is notirrelevant, the issue in Egelhoff involved the effect of alcohol on mental state.This generates a third point: whatever the professional conclusions about theeffects of alcohol on either behavior or cognition, there is no indication that thesestudies—or expert testimony upon them—were cited at trial or relied upon by theMontana legislature in reaching its conclusion about the relationship of liquor tomental states. While no academic likes to suggest that courts should not relyupon academic articles in reaching conclusions, Scalia’s citations here are at leastproblematic, since he refers to the articles for factual data, not for theoreticalarguments.

228. Whether this interpretation really creates a rule of strict liabilitydepends, inter alia, on how one understands the concept of strict liability. Amongother difficulties, defendants are liable only if their intoxication is voluntary. Therequirement of voluntariness may render liability less “strict.” See DouglasHusak, Varieties of Strict Liability, 8 Canadian J.L. & Jurisprudence 189 (1995) .

229. The strict-liability interpretation seems to be embraced by Justice Suggin McDaniel. Justice Sugg claims to hold a defendant “accountable for any crimewhich [a voluntarily intoxicated defendant] may commit in that condition.”McDaniel v. State, 356 So.2d 1151, 1161 (Miss. 1978).

230. This rule has obvious affinities to unqualified formulations of the felonymurder rule: A person who has voluntarily committed a felony is responsible forwhatever consequences he brings about. But the harshness of this formulation of



The equal culpability rationale would be exceedinglydifficult to accept if the strict liability interpretation of theMontana statute were adopted. The most thoughtfulcritique of this rationale has been developed by PaulRobinson.231 As Robinson contends, “the notion that aperson risks all manner of resulting harm when hevoluntarily becomes intoxicated is common, but is obviouslyincorrect.”232 Persons who become intoxicated may well bereckless about whether they will commit a criminal act.233

That is, they may consciously disregard this risk.234 But nocourt or commentator has argued that a person who isreckless with respect to the risk of harm is just as culpableas a person who knows that he is causing that harm.235

Why suppose that simply because he is voluntarilyintoxicated a defendant who commits a criminal act is justas culpable as a defendant who commits that actknowingly?

In any event, Justice Scalia seems clearly to reject thisstrict liability interpretation; the plurality does notconstrue the Montana statute to allow defendants to be

the felony murder rule has led many jurisdictions to qualify and narrow it.Presumably, the same considerations that militate in favor of these qualificationswould pertain to the corresponding rule about voluntary intoxication.

231. Paul Robinson, Causing the Conditions of One’s Own Defense: A Study inthe Limits of Theory in Criminal Law Doctrine, 71 Va. L. Rev. 1 (1985).

232. Id. at 16.233. Perhaps the psychological studies to which the court refers provide reason

to believe that drinkers who resort to criminality are at least reckless. See supranotes 225-26. If they are behaving in accordance with their learned expectations,there is some basis for concluding that they must have been conscious of theserisks at the time they became intoxicated.

234. Even recklessness with respect to the risk of criminality may not beinvolved when persons become voluntarily intoxicated. The “voluntariness” inbecoming intoxicated that is required by the Montana statute probably involvesonly negligence. See Robinson, supra note 231, at 16.

235. Of course, judgments that a person who is reckless with respect to therisk of harm is just as culpable as a person who knows that he is causing thatharm have been made when the degree of recklessness is sufficiently extreme tomanifest a gross disregard for the value of human life. It seems unlikely,however, that the act of becoming intoxicated manifests that extreme degree ofrecklessness. Finally, a defendant who (hypothetically) knows he is risking thepossibility that he may commit some unspecified criminal act is surely not asculpable as one who knows he is committing a specific crime.



convicted of crimes requiring knowledge simply becausethey were voluntarily intoxicated at the time of theircriminal act. According to Scalia, Montana has not“dispens[ed] entirely with the mens rea requirement whenindividuals act under the influence of a judgment-impairing substance.”236 Instead, the statute indicates onlythat voluntary intoxication cannot be used to disproveknowledge. The state, however, must still provide evidencefrom which a jury could otherwise infer that the defendantacted knowingly.237 The plurality insists that “failure bythe State to produce evidence of respondent’s mental statewould have resulted in acquittal.”238 In Egelhoff, theplurality was confident that such evidence had beenproduced. The respondent himself must have retrieved hisgun from the glove compartment before he used it — whichScalia describes as “strong evidence that it was hisconscious object to commit the charged crimes.”239

Moreover, the victims were each shot only once, in thehead. A person not aware of his conduct or not in control ofhis reflexes might miss — or at least shoot his victims inless vulnerable spots. Thus the state did not simply provethat the defendant was intoxicated at the time of thekilling; it proved enough for the jury to infer knowledge orpurpose. If the strict liability interpretation of the Montanastatute were correct, mere proof that the defendant was

236. Egelhoff, 518 U.S. 37, 43 (1996). This appears to be Justice Ginsburg’sview of the statute. Arguably, however, Ginsburg’s interpretation makesnegligence the required level of culpability for deliberate homicide. If thedefendant had not behaved unreasonably—and had not become intoxicated—would he have committed the criminal act? Sweitzer defends a negligenceinterpretation of Ginsburg’s construction of the Montana statute. See Sweitzer,supra note 210, at 289.

237. Since the State still has the burden of proving the guilt of the defendantbeyond a reasonable doubt, the plurality’s finding—that the statute makingevidence of voluntary intoxication inadmissible is consistent with Due Processdoes not violate In re Winship, 397 U.S. 358 (1970) or Sandstrom v. Montana, 442U.S. 510 (1979))—is understandable, even if problematic. Of course, thecontroversial statute makes such proof easier to produce. But all evidentiaryrules have this effect; facilitating the state’s burden is not unconstitutional unlesssome fundamental principle of justice is violated.

238. Egelhoff, 518 U.S. at 49-54.239. Id at 54.



voluntarily intoxicated at the moment he pulled the triggerwould have been sufficient to convict him.

(2) If the strict liability interpretation of the Montanastatute should be rejected, some defendants who kill whilevoluntarily intoxicated are innocent of deliberate homicideunder Montana law. How might these defendants bedescribed? The answer to this question gives rise to thesecond interpretation of the Montana statute, which wewill call the counterfactual interpretation. According tothis interpretation, persons who kill while voluntarilyintoxicated are not liable for murder under Montana lawunless they would have known that they were killing hadthey been sober. As so construed, the equal culpabilityrationale of the Montana statute posits an equal degree ofculpability between two persons who perform criminalacts—the first, who performs the act knowingly, and thesecond, who would have known that he was performing theact but for his voluntary intoxication.240

Examples of intoxicated killers who would be convictedunder the strict liability interpretation but not under thecounterfactual interpretation of the Montana statuteshould be easy to describe. Suppose, for example, that athird party had secretly placed bullets in a gun that even areasonable person would have believed to be unloaded. Adefendant who kills under these circumstances would notbe guilty of deliberate homicide in Montana—even if he hadbeen drunk at the time of his killing. Such a defendantwould not be allowed to show that he did not know that hewas killing because of his voluntary intoxication. But hewould be allowed to show that he did not know that he waskilling because he was unaware that a third party hadloaded his gun.

240. Counterfactuals are clearly required to make judgments about equalculpability in other contexts, such as that of willful blindness. Defendants whoare held to know that they possess contraband, for example, are not held to knowthat they possess contraband simply because they are willfully blind. Instead,they are held to know that they possess contraband because of what they wouldhave known had they not been willfully blind; their willful blindness must make adifference to what they actually know.



The equal culpability rationale for the Montanastatute is more plausible if the counterfactualinterpretation is adopted.241 It seems outrageous tosuppose that a defendant who kills knowingly is no moreculpable than the foregoing example of an intoxicateddefendant who kills because he is unaware that a thirdparty has loaded his gun. Suppose, however, that anadditional piece of information about the latter defendantis revealed—that he would have known that his gun wasloaded had he remained sober. If the example is altered inthis crucial respect, the voluntary intoxication of thisdefendant makes a difference to what he knows. The basisfor holding him to be as culpable as the defendant who killsknowingly is not simply that a voluntarily intoxicatedoffender is responsible for whatever subsequently happens.Instead, the basis for holding him to be as culpable as thedefendant who kills knowingly is that a voluntarilyintoxicated offender is responsible for whateversubsequently happens as a result of his intoxication. Theconsequences of his behavior that can be attributed to hisintoxication are those that would not have occurred “butfor” his intoxication. This position is not so implausible.242

Indeed, it may be more defensible than the positionadopted by many—including the Model Penal Code243—that“every person knows” that drinking involves the risk ofviolent behavior.

The plurality seems clearly to adopt the counterfactualinterpretation of the Montana statute, and thisinterpretation is simply taken for granted by JusticeGinsburg. “To obtain a conviction,” she writes, the statemust prove “that (1) the defendant caused the death ofanother with actual knowledge or purpose, or (2) that [sic]

241. Not all commentators agree. Allen, calls the counterfactual interpretation“strange,” and “a smoke screen for imposing strict liability.” Allen, supra note 164at 638, 639.

242. Even commentators highly critical of the plurality’s opinions in Egelhoffconcede that “the intuitive feeling that an offender’s intoxication should notexcuse his criminal conduct makes sense.” See Sweitzer, supra, note 210, at 318.

243. Model Penal Code § 2.08.



the defendant killed ‘under circumstances that wouldotherwise establish knowledge or purpose but for [thedefendant’s] voluntary intoxication.’”244 The strict liabilityinterpretation of the Montana statute seems not even tohave occurred to her.245

If the counterfactual interpretation should bepreferred,246 the equal culpability rationale in favor of theMontana statute can now be assessed. It is one thing tosay that persons who commit criminal acts under thecounterfactual interpretation are likely to be more culpablethan persons who commit such acts under the strictliability interpretation of the Montana statute, but quiteanother to say that their culpability is equal to that ofpersons who commit criminal acts knowingly. Is theculpability of these two defendants really equal?247 Thisquestion is extraordinarily difficult, and the Court isunhelpful in answering it.248 Unfortunately, no theory ofthe conditions under which different mental states areequal or unequal in their degree of culpability has enjoyedwide acceptance among courts or commentators.249 In light

244. Egelhoff, 518 U.S. at 58.245. To be sure, Ginsburg occasionally fails to express the crucial issue in

counterfactual terms. She claims that “it is within the legislature’s province toinstruct courts to treat a sober person and a voluntarily intoxicated person asequally responsible for conduct—to place a voluntarily intoxicated person on alevel with a sober person. . . .” Id. at 59. In this passage, Ginsburg does notindicate that the responsibility of the intoxicated person must be assessedcounterfactually. Perhaps the omission of counterfactual language in thispassage is best explained by the fact that its inclusion is unwieldy andcumbersome.

246. But see supra notes 242-43.247. More precisely, the question is whether their degree of culpability is

nearly equal, that is, close enough so that a jurisdiction need not distinguishthem. After all, most jurisdictions treat persons who kill knowingly liable for thesame offense as persons who kill purposely, even though knowledge is typicallyregarded as a lesser degree of culpability than purpose. The justification forholding such persons guilty of the same offense must be that their degree ofculpability is sufficiently close to justify the failure to distinguish them.

248. One commentator laments that “the main problem with Egelhoff [is that]there is little discussion, in any of the opinions, of how intoxication might havealtered the culpability of Egelhoff. Samuel Pillsbury, supra note 164, app. at 672.

249. See the critical discussion in Kenneth Simons, Rethinking Mental States,72 B.U.L. Rev. 463 (1992). See also Jeremy Horder, Criminal Culpability: The



of such uncertainty about this matter, how should theequal culpability rationale for the Montana statute beevaluated?

In our opinion, the answer to this question dependsprimarily on the degree to which courts should defer—as amatter of checks and balances—to legislatures about suchmatters. Justice Ginsburg mentions the “wide latitude”enjoyed by states in defining criminal offenses.250 She neednot insist that defendants who act knowingly are just asculpable as defendants who would have acted knowinglybut for their voluntary intoxication, but only that no“fundamental principle of justice” is offended when a statemakes this determination for itself. According to Ginsburg,this power to define offenses is exceeded only when thestate “offends some principle of justice so rooted in thetraditions and conscience of our people as to be ranked asfundamental.”251 Of course, this abstract description of thelimits of judicial deference brings our inquiry full circle.

How would this final justification for the Montanastatute apply to our hypothetical statute? In order for thisrationale to be persuasive, the Court must be willing toallow a legislature to conclude that a defendant whocommits a criminal act knowingly is no more culpable thana defendant who would have known that he wascommitting that criminal act but for his mistake of fact.Would deference to legislative determinations about equalculpability extend this far? Intuitively, the culpability ofoffenders who are factually mistaken is significantly lessthan that of persons who act knowingly. Certainly none ofthe defendants in the cases discussed in Section I or IIwould be so culpable. These defendants are those who arethe epitome of innocence. It is hard to believe that thereexists a societal perception that one who has made amistake of fact should be “responsible for theconsequences.” Scholarly opinion has not defended anequivalence between the culpability of these two

Possibility of a General Theory, 12 L. & Phil. 193 (1993).250. Egelhoff, 518 U.S. at 58.251. Id. (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)).



defendants.252 Nor do legal precedents support anequivalence in culpability, except in a narrow range ofcases.253 Nor can psychological studies of the sort thatquestion the mechanism by which intoxication contributesto criminal behavior be marshaled to show that mistakes offact lack exculpatory significance. The very fact that ourhypothetical is so fanciful—so hypothetical—indicates thatno such societal perception actually exists. Still, onecannot be too confident about this matter, especially sincethe Court provides little guidance about how the existenceof a societal perception is to be identified. Since judgmentsabout equal (or unequal) culpability are problematic in anycontext, these judgments are controversial even in thecontext of our hypothetical statute. We cannot be certainthat no reasonable legislature could fail to notice a gravedifference in the degree of culpability between these twocategories of offenders. History and deterrence aside, theequal culpability rationale thus provides a promising (buthardly conclusive) basis for distinguishing our hypotheticalrule from that of the Montana statute.

C. FEDERALISM — A Brief Note

To this point, we have downplayed or ignored thepossibility that Egelhoff is more about federalism—and theunwillingness of the Supreme Court to place constitutionallimits upon state legislative power—than about mens reagenerally. Of course, to the extent that the vast majority ofcriminal cases are state cases, the two concerns overlapsignificantly. But many commentators254 have argued thatEgelhoff can best be understood as a paean to federalistprinciples. Given that the decision emanates from a Courtalmost obsessed by such principles,255 this is not an

252. Not even Dame Wootton, who believes that such differences should betaken into account at sentencing, adopts such a position. See supra note 191.

253. See Husak & von Hirsch, supra note 61.254. See, e.g., Allen, supra note 164; Dressler, supra note 165.255. See United States v. Lopez, 514 U.S. 549 (1995); Printz v. United States,

521 U.S. 98 (1987).



implausible reading. It would, of course, give great weightto the view that Egelhoff reaches far beyond intoxication,and virtually immunizes state legislation fromconstitutional scrutiny.

We acknowledge the power of such a critique. Forreasons we have already suggested, however, we believethat Egelhoff can be—indeed is—limited to intoxication.While the federalist analysis is not implausible, we see nosign, in Egelhoff (as distinct perhaps from other cases) todraw such a radical conclusion. We would further point outthat while Powell articulated a similar federalist messagein the context of substantive criminal law, the Courtnevertheless continued to expand its protection of theinnocent in later cases, as we have demonstrated insections I and II. We see no need—here—to pursue thatavenue further.

IV: CONCLUSION

Where, then, do matters now stand with regard tomens rea in federal statutory offenses? The Court hasheld—or declared in dictum—that the following personsare “presumptively” innocent, and must be proven to beaware of both the facts as well as the law governing theirconduct: (1) restaurateurs who accept food stamps;256 (2)taxpayers generally;257 (3) persons who seek either to avoidan IRS audit, or to pay more alimony to their spouse;258 (4)persons who distribute anything that turns out to beillegal;259 (5) persons who handle guns, at least insofar asthe need to register them is concerned;260 and (6) personswhose cars have violated emission standards.261 On theother hand, in dictum, the Court has suggested262 that

256. See Liparota v. United States, 471 U.S. 419 (1985).257. See Cheek v. United States, 498 U.S. 192 (1991).258. See Ratzlaf v. United States, 510 U.S. 135 (1994) (dictum).259. See United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (this is an

obvious overstatement of the case, but it seems fair).260. See Staples v. United States, 511 U.S. 600 (1993) (dictum).261. See id. at 614 (dictum).262. See discussion of the procedural posture of International Minerals and



persons who possess hand grenades,263 who handle highlytoxic acids,264 who are in the business of dealing withregulated food stamps 265 or who distribute food for publicconsumption266 might all be subject to strict liability formistakes or fact or law. In addition, every person knows—or is presumed to know—the intricacies of Constitutionaladjudication.267

With all due respect to the Court, these lines cannotstand. They must be rejected for both normative andpractical reasons. Normatively, the government shouldalways be required to demonstrate the culpability of thedefendant with regard to all material facts and to hisunderstanding of the law.268 If we are correct in Parts I andII, so called “regulatory” or “public welfare” offenses nolonger represent an exception to this generalization. Inpractical terms, however, even the most innocuous itemsmay be dangerous, or at least undesirable. We take our cuefrom (nearly) plain water.

Two post-tetralogy cases demonstrate the conundrum.In Ahmad v. United States269 the Fifth Circuit reversed aconviction of a defendant gas station owner for pumpinggasoline from his underground tank into the street. Hetestified that he believed that he was pumping plain water,rather than gas, but the trial court instructed that thisallegation would not preclude his liability. The FifthCircuit’s reversal is explicable on the basis that thedefendant was mistaken about the facts, not the law—butit cannot really be explained by the kind of item handled.After all, the defendant was handling gasoline (surely a“dangerous item”), and he was aware that he was in anindustry in which the item he was pumping “might” be

Freed, and the ambiguity of Park, supra notes 19-46 and accompanying text.263. See United States v. Freed, 401 U.S. 601 (1971).264. See United States v. Int’l. Minerals & Chem. Corp., 402 U.S. 558 (1971).265. See Liparota, 471 U.S. at 436.266. See United States v. Park, 421 U.S. 658 (1975).267. See Cheek, 498 U.S. at 205-06.268. We do not construe this proposition as self-evident, but a separate paper

would be required to support our claim.269. Ahmad v. United States, 101 F.3d 386 (5th Cir. 1996).



gasoline.In contrast to Ahmad stands the hotly debated case of

United States v. Weitzenhoff.270 The defendants, managersof a sewage treatment plant outside Honolulu, were clearlyaware that they were dumping water mixed with sludge (apotentially dangerous waste) into the Pacific Ocean. Butthey believed that the EPA permit under which they wereoperating allowed such dumping. The case was tried on theground that their factual and legal knowledge wereirrelevant—so long as they actually deposited an excessamount of water plus sludge into the ocean, theirawareness of the facts or law need not be proved by thegovernment.

Weitzenhoff was decided by a panel of the Ninthcircuit.271 But after Staples, the petitioners moved for arehearing en banc. This motion was denied by the court,but generated vigorous opinions both by the majority andby a group of dissenting judges who were outraged by theimposition of strict criminal liability. We will not rehearsethose opinions here. The two sides disagreed aboutvirtually everything discussed above: about whether thewater was “plain,” whether Congress intended to imposestrict liability, and the precise holding of Staples (and theother parts of the tetralogy). The Weitzenhoff majority alsocharacterized the dumping of “sludge” into the PacificOcean as a public welfare offense, justifying aninterpretation of the Clean Water Act that dispensed withmens rea.272

If we are correct, Weitzenhoff was wrongly decided.The mere fact that an activity is regulated no longer willsuffice to generate strict criminal liability. Instead, weread these four Supreme Court cases, both singly and incombination, as establishing a new test, or at least a guide,for determining whether the activity should be governed by

270. United States v. Weitzenhoff, 1 F.3d 1523 (9 th Cir.) reh’g denied en banc35 F.3d 1275 (9th Cir. 1993) cert. denied sub nom. Mariani v. United States, 513U.S. 1128 (1995).

271. See Weitzenhoff, 1 F.3d 1523.272. Weitzenhoff, 35 F.3d at 1285-86.



strict liability: the innocence—both factual and legal—ofthe persons involved.

Our conclusion that this test is preserved in Egelhoffplaces great weight upon our view that the “equalculpability” rationale contributed significantly to thejudgment in that case. But the “equal culpability”rationale in favor of the Montana statute — to which wehave devoted such attention—is presented in a singlesentence. Does this rationale really have much significancein the overall opinion in Egelhoff?

An answer to this question is crucial in decidingwhether and to what extent this case represents adeparture from the Court’s prior commitment to protect theinnocent. It may be noteworthy that the Court itselfprovides no indication that it is changing direction from thecases we discussed in sections I and II. It is curious tothink that the Court, without comment, would renege onits commitment to protect the innocent that is firmlyestablished in a long line of precedents. Suppose, then,that we are correct to speculate that a majority of the Courtwould have decided Egelhoff differently had they not beenconvinced that the Montana statute was supported by anequal culpability rationale. If our speculation is correct,Egelhoff hardly stands for a retreat on the significance ofprotecting the innocent. At least for very serious crimessuch as murder, the Court is willing to allow only personswho are highly culpable to be convicted—persons who killpurposely or knowingly, or who are just as culpable aspersons who kill purposely or knowingly. If thisinterpretation is adopted, no innocent person is convicted.Although Egelhoff does not directly affirm the importanceof protecting the innocent, it certainly does not underminethat commitment.

Attaching importance to this final rationale has theadvantage of avoiding the unpalatable conclusion that theconstitutionality of the Montana statute is a function of itsform and not of its substantive content. In her dissentjoined by three other Justices, O’Connor indicated that “astate legislature certainly has the authority to identify the



elements of the offenses it wishes to punish, but once itslaws are written, a defendant has the right to insist thatState prove beyond a reasonable doubt every element of anoffense charged.”273 In other words, Montana could haveachieved the same outcome and satisfied the Due Processconcerns of the dissenters simply by repackaging itsevidentiary statute as a substantive redefinition of the kindof mens rea required for conviction.274 This result isdissatisfying. Why should the constitutionality of thestatute depend on whether it is construed as a rule ofevidence or as a reformulation of the elements of a criminaloffense?275 If the constitutionality of the statute dependslargely on the plausibility of the equal culpability rationale,the issue of whether the statute should be construed assubstantive or evidentiary becomes less crucial. What isimportant, instead, is whether and under whatcircumstances the state may treat two defendants whocommit the same criminal act but who differ in theirmental state as equal in their degree of culpability.

According to our interpretation, the Court is willing toallow states to preclude defendants from producingevidence that tends to show that they lack the specificmental element required by the statute—mens rea in thenarrow, more contemporary sense—but only when the veryevidence that defendants hope to offer would reveal them to

273. Montana v. Egelhoff, 518 U.S. 37, 64 (1996).274. Of course, Justice Ginsburg believes that Montana actually did redefine

the offense. See supra note 245.275. Professor Allen denigrates this interpretation of Egelhoff by suggesting

that it would mean that the majority would only be giving the Montanalegislature “drafting advice.” Allen, supra note 164, at 643. But courts frequentlygive legislatures drafting advice, suggesting that they “try again.” Ratzlaf issurely one of these—and the legislature did “try again.” See supra note 86. Amore recent infamous example may well be United States v. Lopez in which theCourt invalidated the first federal attempt to reach gun possession within schoolzones, because Congress had not included findings, nor a jurisdictional element,that interstate commerce was affected. 514 U.S. 549 (1995). Congress complied byboth adopting findings and amending the statute to require a jurisdictionalelement. We are not quite so ready to demean such a process, which asksCongress whether they “really meant” to do what the words of the statute appearto require. It is at least plausible that Congress did not intend to do what thelanguage of the statute imports, and will take no action.



be just as culpable as they would have been if thatculpability element were satisfied—and thus to be guilty inthe older, broader sense of mens rea. As our hypotheticalstatute helps to indicate, the basic and fundamentalprinciple of justice according to which only theblameworthy (or guilty) and not the blameless (or innocent)should be punished describes the limits beyond which theEgelhoff Court refuses to go. If this interpretation isaccurate, there is no reason to believe that thecircumstances under which the Court attaches importanceto innocence have been eroded as a result of Egelhoff. TheCourt has not failed to protect the innocent, but hasallowed states to fail to protect the guilty—or, at least,persons who may be as guilty as those whose guilt hasnever been questioned.

We conclude, therefore, that in the thirty six yearssince Herbert Packer’s article, the Court has endeavored toensure that innocent persons are protected from criminalliability. This commitment is most evident ininterpretations of federal statutes, but we do not believethat Egelhoff mortally wounds that premise as matter ofconstitutional law. It is certainly true that Egelhoff doesnot expressly embrace the notion of mens rea as aconstitutional prerequisite. Neither, however, does itpreclude that conclusion. In short, we can say with Packer:Mens rea is not constitutionally mandated, exceptsometimes. While we would have preferred a moredefinitive outcome, the Court, after another agonizingthirty-six years of jurisprudence, has declined to provide uswith one. Perhaps in another thirty six years . . . .