The'inherently Wrongful' Doctrine in Federal

G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE Web address: http://www.nylj.com VOLUMe 223—NO. 44 TUEsday, MARCH 7, 2000 OUTSIDE COUNSEL BY TAI PARK The‘Inherently Wrongful’ Doctrine in Federal Law an a person be convicted of a requirement, and that is the doctrine "malum in se," bad in and of itself. Murder and assault federal crime for committing that ignorance of the law is no defense. are obvious common law examples of inherently an act if he did not believe This doctrine has supported enforcement wrongful conduct, and, in federal law, kidnaping, C he was engaged in any of criminal statutes on virtually a strict terrorism, or fraud are some examples. Once an offense wrongdoing? As deeply counterintuitive liability basis: the government need is deemed to be inherently or intrinsically wrongful, as it may seem, the answer, with increasing only prove the defendant knew what the government need only prove the defendant acted frequency, is "yes." If the government he was doing, not that he understood he "knowingly," that is, not by accident or mistake. In can demonstrate that certain prohibited was breaking the law or doing anything another context, Justice Stevens explained in Bryan conduct is "inherently wrongful," the wrong. The so-called public welfare cases v. United States that it is not necessary to prove " 'an government need not prove at trial that and prosecutions of environmental law evil-meaning mind' directed the 'evil-doing hand' " the defendant committed the act with any violations are the clearest examples. because of the "background presumption that every consciousness of the act's wrongfulness or [FN6] Sounding more in tort law citizen knows the law." [FN12] Generally speaking, we illegality. While this is a relatively familiar than criminal, the ignorance of law can safely assume that everyone knows killing another concept when applied to classic malum in doctrine applies presumptions about or lying to another to gain some personal benefit is se offenses, such as murder, there has been a gradual the defendant's state of mind, for "the common law inherently wrong. expansion of the notion to apply to more ambiguous presumed that every person knew the law." [FN7] We run into trouble, however, when the presumption conduct. In a recent case, United States v. Autumn Two scholars, Professors Sharon Davies and John is applied to conduct that is merely questionable and Jackson, the Second Circuit had occasion to apply the Wiley, have recently written informative law review not classically malum in se. Indeed, in referring to inherently wrongful principle to the extortion efforts articles on the current state of the law on mens rea the "background presumption" in Bryan v. United of a woman claiming to be Bill Cosby's daughter, and issues. The tension between the wrongfulness and States, the Court was discussing a firearms statute that the case illustrates the difficulty our criminal justice the ignorance of law doctrines is best demonstrated criminalizes possession of a firearm (even if licensed) if system confronts in trying to implement the principle. by the sharply contrasting perspectives of these two the defendant also happens to be an illegal immigrant. As I suggest, the idea of inherent wrongfulness is rooted works, with Davies forcefully arguing that the Supreme [FN13] "Wrong" is of course, a notoriously ambiguous in an old and confused debate in criminal law, may be Court has improperly strayed from the ignorance of concept, about which philosophers have struggled for impossible to apply, and will lead to uncertainty about law doctrine by imposing a wrongfulness requirement, millennia, without resolution. Yet, rather than requiring our definition of a criminal. [FN8] and Wiley just as forcefully arguing that the Court proof that the defendant knowingly chose to commit Forty-eight years ago, in Morissette v. United States, should continue the trend toward abandoning the a crime (or a bad act that happens to be a crime), the Justice Jackson described the purpose of criminal law ignorance of law doctrine in favor of the wrongfulness inherently wrongful principle requires lawyers and as follows: requirement. [FN9] judges to agree on whether the act was so wrong that The contention that an injury can amount to a While there is nothing unusual about scholars no proof of subjective intent is necessary. crime only when inflicted by intention is no provincial disagreeing over any point of law, what is most The difficulty of reaching such agreement was or transient notion. It is as universal and persistent in interesting here is that, on this issue bearing on highlighted in Ratzlaf v. United States. [FN14] mature systems of laws as belief in freedom of the human fundamental justice, the Supreme Court has not 31 U.S.C. Section 5324 criminalized the "wilful" will and a consequent ability and duty of the normal offered any controlling guidance that supports one structuring of cash transactions designed to cause a individual to choose between good and evil. [FN1] scholar over the other. Of course, since the Court bank not to file a report for transactions involving The Court found the source of this principle in attempts to interpret the mens rea requirement set over $10,000 in U.S. currency. Ratzlaf understood that "Biblical, Greek, Roman, Continental and Anglo- forth in the statute at issue, debate would be ended the bank had an obligation to file a report for any cash American law." [FN2] The case is often cited to support if Congress accurately and consistently indicated transaction involving more than $10,000; thus, he the conclusion that federal criminal statutes should be what actus reus, accompanied by what mens rea, it broke down the deposits to keep each deposit under that construed to require proof of conscious wrongdoing, that wished to criminalize. However, Congress has been amount. The issue was whether the defendant had to is, acting with knowledge that one is either breaking the inconsistent in its statutory language. For example, know he was breaking the law in doing so. [FN15] law or behaving immorally. Many scholars believe that the "word 'wilfully' is sometimes said to be a 'word of The government argued that those who engage in consciousness of wrongdoing is a basic requirement in many meanings' whose construction is often dependent structuring cash transactions, "by their very conduct criminal law, [FN3] and the Supreme Court has affirmed on the context in which it appears." [FN10] Similarly, exhibit a purpose to do wrong," [FN16] and thus no that that requirement is the "background assumption" the "definition of 'knowingly' varies according to the proof of intent to violate any law should be read into of criminal law. [FN4] The cases requiring proof that particular statute." [FN11] Thus, judicial opinions the statute. Virtually all the circuit courts, including the the defendant knew he was breaking a specific law, such about the mens rea intended by Congress are legion, Second Circuit, had held that, indeed, no such proof as tax code, food stamp and securities regulations, are with even single cases spawning sharply divergent of conscious wrongfulness was necessary. The Supreme the clearest illustrations of what I will refer to as the views among the Supreme Court justices who see Court, however, disagreed with the government's wrongfulness requirement. [FN5] congressional intent very differently. characterization of the conduct and found nothing There is, however, another common law maxim "inherently 'bad' " or "inevitably nefarious" about that has competed over time with the wrongfulness Inherently Wrongful structuring. [FN17] The Court concluded that, by requiring "wilful" violations of the structuring law, One of the many issues implicated in this bewildering Congress must have intended the government to Tai Park is the counsel in the Litigation Department mens rea debate is the notion of inherently wrongful prove that the defendant knew it was unlawful to of Shearman & Sterling and is a former federal conduct. Closely tied to the ignorance of law doctrine, structure. Dissenting Justice Blackmun agreed with the prosecutor in the southern district of New York. certain statutes are deemed to punish conduct that is government and sharply disagreed with the majority's NEW York Law JOURNAL thursday, may 29, 2008 moral judgment: "The anti-structuring provision targets district court's jury instruction was harmless error given by requiring proof of the essential ingredient that those who knowingly act to deprive the Government the weight of the evidence showing Jackson was not prosecutors look for anyway when deciding whether of information to which it is entitled.... That is not so entitled to the $40 million. [FN28 ]In so ruling, the to prosecute. plainly innocent a purpose as to justify reading into Second Circuit rejected Jackson's proffer of arguments On the other hand, if the law continues to expand the statute the additional element of knowledge of supporting her demand for $40 million. Reviewing the reach of the inherently wrongful doctrine, we illegality." [FN18] New York State family law, the Court noted the "utter become increasingly confused about what proof Congress apparently agreed with the government implausibility that a court would order a child support is necessary to justify the deprivation of liberty. As and Justice Blackmun, for it swiftly rejected the payment in a sum even remotely approaching the [$40 firmly as prosecutors may believe in the "guiltiness" of Supreme Court's interpretation of congressional intent million]." [FN29] a particular defendant, they can be seriously mistaken. and amended the structuring statute to modify the Significantly missing from the Court's analysis is We risk not only unfairness to an individual, but also language that was construed as requiring heightened what a 21-year old woman who is wholly unschooled growing public uncertainty about what a criminal is.

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