One problem is that there are crimes no one knows exist.  Another problem is that there are crimes that don’t require, as an element of culpability, that one knows one committed it.  The second caused United States District Judge Mary Scriven to hold Florida’s narcotics delivery statute unconstitutional in  Shelton v. Florida DOC (via the NACDL).

“Actus non facit reum nisi mens sit rea” – – except in Florida.*

*Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the “unknowing” possession of a controlled substance.

Sounds crazy?  Of course, as we would hold the postman guilty of delivery of drugs for carrying a package to a mailbox, even though he had no clue what was inside.  There’s nothing blameworthy about it, but Florida didn’t care.

The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. . . . [T]o constitute any crime there must first be a ‘vicious will.’

Morissette v. United States, 342 U.S. 246, 250 (1952).

Absolutely correct.  And so the Florida strict liability drug delivery statute is unconstitutional, as it should be.  But what of the myriad other crimes that are strict liability?  Say, for example, drunk driving, perhaps the most commonly prosecuted crime in the nation.  People haven’t got the slightest clue what their blood alcohol content might be, whether .06 or .12, and thus can’t know whether their driving is perfectly lawful or completely unlawful.

[A] strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct. See Staples v. United States, 511 U.S. 600, 619-20 (1994).

Note that this is in the conjunctive, such that all three conditions must be met for a strict liability crime to pass constitutional muster.  Few today would argue that driving drunk isn’t inherently dangerous conduct, largely because we’ve been bombarded for decades with the message.  Of course, a few decades ago, drunk driving penalties were still fairly trivial, the loss of the privilege of driving and maybe a 30 day sentence.  There was little stigma, it being the sort of offense that would cause others to mutter, “there but for the grace of God…”

But decades of MADD and SADD and BADD have changes all that, with drunk driving being tantamount to murder, whether inchoate or real.  Penalties for repeat offenders aren’t counted in days, but years and decades.  And yet it remains a strict liability of offense, without the perpetrator aware that his blood alcohol content exceeds the legal, and notably arbitrary, maximum.

Another strict liability crime, statutory rape, similarly defies the Staples analysis.  If the age of consent is 18, for example, and a woman a day shy of the magic age has sex with a man a week more mature, but claims to be of age and has every appearance of a woman one day older, the crime has nonetheless been committed even though the man has neither knowledge nor reason to believe that he’s done anything wrong. 

Of course, this wasn’t viewed as a terribly horrendous crime long ago, but more an anomalous situation demanding a stern reminder to keep one’s mitts off of under age women.  Today, however, the stigma and punishment are monumental, as sex offender registries abound (but this isn’t punishment, it should be noted, since it’s called “civil” and therefore doesn’t count) following lengthy and draconian sentences. In this age of pedophilia, there is no sex offense, so broadly defined as to include public urination, that won’t ruin a person forever.  And in this case, not even the third factor, inherently deleterious conduct, applies, as no one can argue that the woman, a day later, had so ripened that no harm done.

Society’s attitudes toward crime shift, often significantly, over time, with one becoming more heinous and commanding more severe punishment, while the laws criminalizing conduct get stuck in the mindset at the time they are enacted.  Strict liability laws, the ones where legislatures decide that blameworthiness is just too much trouble to prove, and the ones where courts deem them too trivial to be worthy of full constitutional protection, are passed and approved at times when nobody seems terribly concerned. Times change.

The notion of strict liability crimes is itself anathema to the fundamental belief that crimes require blameworthiness, though many in the public couldn’t care less about culpability when there’s a harm to be avenged. That Florida took it to the extreme in Shelton, an absurd elimination of the element of knowing delivery (which isn’t likely to help the multitude of defendants convicted under the statute for whom the time to seek habeas relief has come and gone) gives rise to rethinking its propriety in general.

There aren’t many crimes, if any, that carry no stigma and harsh consequences anymore.  Particularly now, with  potential employers searching criminal records and the internet to remind others forever of any wrong ever committed, the mere conviction for anything stands to destroy any future normalcy.

It’s time to revisit the constitutionality for all strict liability offenses, and to recognize that there is no crime so trivial that it’s unworthy of basic constitutional protections.  It’s time to return the notion of blameworthiness to conduct deemed criminal.

H/T WSJ Law Blog