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Regulatory Crimes and the Mistake of Law Defense Paul J LEGAL MEMORANDUM No. 157 | JULY 9, 2015 Regulatory Crimes and the Mistake of Law Defense Paul J. Larkin, Jr. Abstract No one should be convicted of a crime if no reasonable person would Key Points have known, and if the defendant did not know, that the conduct charged against him was criminal. Former U.S. Attorneys General n A strict liability crime can be a Edwin Meese III and Michael Mukasey have endorsed the adoption violation of a statute or an admin- of a mistake of law defense, and criminal law scholars have long ar- istrative regulation. Using the penal law to enforce a regulatory gued that strict liability crimes lead to conviction of persons who are, code, however, creates consider- morally speaking, innocent. A recent paper by Senator Ted Cruz gives able problems, both for regulated further reason to believe that Congress may debate the continued le- parties and for the public. gitimacy of the rule that neither ignorance nor a mistake of law can n A criminal code that reaches excuse criminal liability. people who engage in conduct that no reasonable person would n the summer of 2015, the accepted wisdom is that, for good or ill, find blameworthy weakens Ithe two major American political parties are generally incapable public respect for the law and the of agreeing on any major policy change for which new legislation public’s willingness to support is necessary or useful. One exception, however, can be seen in the its enforcement. area of criminal justice. Several bills with bipartisan support would n A mistake of law defense is a rea- reform the front or back end of the correctional process either by sonable and efficient response modifying some of the federal laws imposing mandatory minimum to that concern because it sentences or by augmenting the power of the Federal Bureau of Pris- avoids making criminals out of people who engage in blame- ons to grant inmates an early release.1 Perhaps reform of the crimi- less conduct. nal justice system is an area where the two parties can agree. Proof that members of each party can cross the aisle to advance n A mistake of law defense would focus on situations in which the sensible criminal justice reform can be seen in a report issued in criminal code forms such a dense April 2015 by the Brennan Center for Justice at the New York Uni- thicket that no “person of ordi- versity Law School. Entitled Solutions: American Leaders Speak Out nary intelligence” could readily on Criminal Justice, the report contains papers offered by 15 well- understand what the law forbids known current or former elected or appointed political officials without the assistance of coun- sel. In that setting, the courts could apply the “mistake of law” This paper, in its entirety, can be found at http://report.heritage.org/lm157 doctrine to protect against crimi- The Heritage Foundation nal prosecution of nonblamewor- 214 Massachusetts Avenue, NE Washington, DC 20002 thy, nondangerous conduct. (202) 546-4400 | heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. LEGAL MEMORANDUM | NO. 157 JULY 9, 2015 from both parties, along with submissions by noted The Birth and Growth commentators on the criminal justice system.2 of Regulatory Crimes Most of the recommendations and almost all of the The Industrial Revolution and creation of heavy papers focus on procedural or structural reform of industry in the United States gave us not only steel the criminal justice system, such as making greater plants, railroads, and steamships, but also unsafe use of community policing,3 increasing the discre- working conditions, defectively manufactured prod- tion afforded federal judges at sentencing,4 or reduc- ucts, misbranded pharmaceuticals, and toxic wastes. ing barriers to community reintegration of newly Troubled by those unfortunate byproducts of Amer- released offenders.5 ica’s nascent industrial age, legislatures gradually One recommendation, however, focuses on the decided to shift a greater amount of the burden of substantive law defining a category of offenses that preventing injuries from laborers to businesses and has come to be a staple of American law since early in consumers because the latter groups were deemed the 20th century: regulatory crimes.6 Expressing con- to be the parties best able to avoid them.14 cern that “the proliferation of federal crimes” has led Legislators also revised the common-law rules of to the phenomenon known as “overcriminalization,”7 tort liability to provide a damages remedy for parties Senator Ted Cruz (R–TX) takes the position that Con- and to deter dangerous conduct. Legislatures adopt- gress should endorse a mistake of law defense: ed mandatory safety requirements;15 they abolished common-law defenses like the fellow-servant rule;16 Congress should enact legislation that requires and in some instances, they even eliminated the the government to prove the defendant knowing- common-law requirement that an employee prove ly violated the law—or that, at least, allows a mis- negligence on his employer’s part to recover for an take of law defense—for certain classes of crimes injury.17 that have no analog in the common law or that no But legislatures did not revise only the civil law: reasonable person would understand to be inher- “Progressive Era efforts to expand corporate civil lia- ently wrong. Where the government has crimi- bility gradually began to bleed over into the crimi- nalized non-blameworthy conduct for regulatory nal law.”18 Beginning in the second half of the 19th purposes, ignorance of the law should be a valid century, the British Parliament and the U.S. Con- defense to criminal liability.8 gress, along with state legislatures and municipali- ties, began to adopt a series of laws that in England No one should be convicted of a crime if no rea- were called “regulatory offenses” and in America sonable person would have known, and if the defen- were known as “public welfare offenses.”19 These dant did not know, that the conduct charged against new crimes consisted in the violation of a health him was criminal.9 Edwin Meese III, former Attor- or safety ordinance designed to protect the public ney General of the United States, urged Congress to against the newly arisen hazards of industrializa- adopt a mistake of law defense in 2012.10 Three years tion and urbanization. The offenses made it a crime later, former Attorney General Michael Mukasey to violate those ordinances regardless of whether also endorsed a mistake of law defense.11 the forbidden conduct was inherently blameworthy Many criminal law scholars have long treated or the responsible party intended to break the law.20 strict liability crimes with derision on the ground In both respects, these new crimes diverged that they lead “to conviction of persons who are, markedly from the common law, which historical- morally speaking, innocent.”12 Because a strict lia- ly had limited criminal liability to the intentional bility offense can be defined as “the refusal to pay commission of blameworthy conduct.21 Nonetheless: attention to a claim of mistake,”13 enactment of a mistake of law defense would be consistent with the [Legislatures] came to believe that they had the views the scholars have expressed. power to eliminate whatever common law rules To further the debate, this Legal Memorandum stood in the way of public safety. They also began summarizes why a mistake of law defense is a sen- to see the criminal law as just another tool that sible development in the criminal law. they could use to prod businesses into promot- ing public safety objectives and to penalize them when they failed.22 2 LEGAL MEMORANDUM | NO. 157 JULY 9, 2015 The new laws elicited challenges from defendants laws late in the 20th century, and some of them impose who argued that the legislatures could not dispense strict criminal liability.34 “Some federal criminal envi- with common-law notions of blameworthiness when ronmental statutes require proof of the same ‘wicked’ defining crimes. English and American courts, how- state of mind demanded by common-law crimes, but ever, concluded that legislatures could eliminate most can lead to a conviction if a person merely knew scienter requirements.23 Even the Supreme Court what he was doing, even if he did not know that what of the United States upheld public welfare offenses he was doing was illegal or wrongful.”35 against a challenge that, by foregoing any proof of Congress’s decision to empower regulatory agen- wrongful intent or knowledge, those crimes violated cies to define crimes or to interpret provisions in reg- the Due Process Clauses of the Fifth and Fourteenth ulatory provisions the violation of which is a crime Amendments.24 also added a new wrinkle to the evolving concept of public welfare offenses: crimes defined by regula- n Shevlin-Carpenter Co. v. Minnesota25 held that a tions. The Supreme Court upheld that practice over corporation can be convicted of a state law tres- a nondelegation claim in United States v. Grimaud,36 pass without proof of criminal intent. ruling that Congress can empower the Secretary of Agriculture to promulgate regulations whose viola- n United States v. Balint26 concluded that an individ- tion is a federal offense.37As a result, a strict liability ual can be convicted of the sale of narcotics with- crime can consist in the violation not merely of a fed- out a tax stamp even absent proof that he knew eral statute, a state law, or a municipal ordinance, but the substance was a narcotic.27 also of an administrative rule adopted by one or more regulatory agencies.
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