Mens Rea

There is some disagreement over the appropriate minimum level of culpability for criminal liability. Some argue that recklessness should be the minimum, that neither negligence nor strict liability—liability in the absence of proof of negligence—should be tolerated. Others argue that negligence is an appropriate basis but that anything short of negligence is inappropriate. Still others argue that strict liability ought to be permitted in select instances. In practice, while recklessness is the norm in current criminal law, criminal liability for negligence is common in select instances, as is even strict liability on occasion. Why these differences in opinion?

Recall, first, the basic contours of recklessness and negligence. Recklessness requires that the person actually be aware of a substantial risk that the prohibited result will occur or that the required circumstance exists. And the risk must be of a sort that a law-abiding person would not disregard. That is, not every instance of conscious risk-taking is culpable. Every time one drives a car or builds a bridge, one is likely to be aware of risks that such conduct creates. But many risks are well worth the taking, for taking the risk creates a good that outweighs the danger. Other risk-taking is not necessarily beneficial, but neither is it condemnable. The law's definition of recklessness is its attempt to distinguish proper risk-taking, or risk-taking that is not so improper as to be criminal, from risk-taking that is condemnable.

A similar challenge for the law arises in the context of negligence. Negligence, recall, differs from recklessness in that the person is not, but should be, aware of a substantial risk. It is not negligent to be unaware of every risk, for no person could be so aware. In any case, it would be a waste of time and energy for people to try. In defining negligence, the law attempts to specify those risks to which one ought to pay attention, those risks that are likely enough and serious enough in their consequence to justify attention. In the language of the Model Penal Code, "the risk must be of such a nature and degree that the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the person's situation" (Model Penal Code § 2.02 (2)(d)). The "gross deviation" requirement helps distinguish the civil standard of negligence in tort law from that in criminal law: even a failure to meet the objective test will not support criminal liability, since the failure must be a "gross deviation" from the standard.

It is easy to confuse creating a risk of harm with taking a risk that an offense circumstance exists or that one's conduct will cause a prohibited result. Creating a risk is altering the circumstances of the world in such a way as to create the possibility of a harm that did not previously exist. Risk-taking, in contrast, is a mental process: acting in disregard of a known risk. One can create a risk of fire by leaving the stove on when leaving the house. One takes a risk of a fire starting by leaving the house knowing that the stove might start a fire. It is the latter that is a form of a culpable state of mind; risk-creation typically is an objective element of endangerment offenses. Also, one creates a risk of causing a result, but one cannot create a risk that a circumstance exists. One can create a risk that a fire will start, but one cannot create a risk that one is exceeding the speed limit. One is either exceeding the limit at the present or is not. In other words, while riskcreation, the objective issue, concerns only results, risk-taking, the culpability issue, concerns both results and circumstances.

Nearly all agree that recklessness is an appropriate basis for criminal liability and, for that reason, it is the default culpability level read in by most modern codes when an offense definition is silent as to the required culpability. Negligence, however, is controversial for some. One argument against liability for negligence focuses on what is said to be the law's inability to deter negligent conduct. Where there is awareness of risk, as with recklessness, the threat of punishment may cause a person to avoid the risk. The threat of criminal sanction can make the person pause, perhaps reconsider, before choosing to disregard the risk. In the case of negligence, in contrast, a person cannot be deterred, it is said, because she has no awareness of the facts that make her conduct criminal. It is argued that imposing liability in such a case is a futile and wasteful use of sanctioning resources.

The same argument can be used to challenge the retributivist grounds for punishing negligence. If a person is unaware of the circumstances that make her conduct criminal, how can it be said that she has chosen to do something that is or may be criminal, and on what grounds can her moral blameworthiness be based?

One might respond to the impossible-deterrence argument by noting that it is too narrow, for it focuses only on special deterrence. Punishing the negligent person may well serve general deterrence goals: it may cause others to pay closer attention to possible risks. Indeed, punishing the person who is unaware of the risk she takes might well send a more powerful message than punishing those who consciously take the risk, for such punishment tells the potential offender that inattentiveness will not provide a defense to liability. One also can point to other utilitarian arguments, such as the crime control value of convicting negligent people for incapacitative or rehabilitative purposes. Such liability would bring within the jurisdiction of the correctional system people who are needlessly inattentive, thereby protecting society from them.

A more direct response, however, is to challenge the underlying assumption of the impossible-deterrence argument that inattentiveness in the individual at hand cannot be deterred in the future by punishment for the present lapse. The evidence suggests that people can chose to pay more (or less) attention to their surroundings and the consequences of their conduct. If speeding were punished with the death penalty in all cases, presumably people would pay more attention to their speedometers. Further, if inattentiveness can be deterred, if it is not hopelessly inevitable, then there can be moral blame in the failure to be attentive. If a person can choose how attentive he or she is to a particular kind of risk-taking, the person can be blamed for not being as attentive as the situation demands.

One might argue, however, that while some people can meet the law's objective standard of attentiveness, others cannot. To punish a person who cannot, especially for reasons beyond the person's control, is to impose a form of strict liability. There can be no blameworthiness in failing to meet a standard that the person is incapable of meeting. Further, to make the utilitarian argument, a person ought not be encouraged to be too attentive. To hold people criminally liable for risk-taking of which they are not aware could create fear of liability that would infect all action, thereby incurring societal costs through a pervasive timidity that hinders possibly beneficial risk-taking activity. The net effect of negligence liability might therefore be an overly deterred society.

But the response to these arguments is found in the restrictions commonly placed upon the imposition of negligence liability in modern codes. As illustrated by the Model Penal Code's definition of negligence quoted above, a person is held negligent only if she fails to be reasonably attentive to risks; the reasonableness of her attentiveness is judged in light of "the circumstances known to her" and in her "situation." That is, she can be held liable only if the jury finds that the situation was such that she reasonably could have been expected to have been aware of the risk. And, even under this individualized objective standard, the defendant's failure to perceive the risk must be a "gross deviation" from what reasonably could have been expected in the situation.

Many of these same arguments are echoed in the debate over strict liability, although the conclusion of the analysis is different. While strict liability is viewed with suspicion and used sparingly, even modern codes commonly use it in two kinds of cases. First, strict liability is common for offenses labeled as only a "violation" or some other term designed to distinguish them from true criminal "offenses." These are instances where the criminal law is performing an essentially regulatory function. The liability imposed for such quasi-criminal offenses typically is limited to civil-like sanctions, such as a fine. Traffic offenses are an example. In a second group of serious offenses, strict liability is provided as to one particular element of the offense. For example, strict liability is sometimes provided as to the age of the victim in statutory rape, especially when the victim is in fact very young. These are the instances of greatest controversy. (Recall that the interchangeability of culpability requirements and mistake defenses means an offense may be made one of strict liability either by explicitly providing that no culpability is required or by providing that a reasonable mistake is no defense.)

It is precisely the above arguments in support of the use of negligence that argue most strongly against the use of strict liability. The test for negligence is set carefully to mark the precise contours of moral blameworthiness that supports criminal conviction (and to provide for the degree of attentiveness that we reasonably expect and want, no more, no less). Of particular note are the individualization of the objective standard by which offenders will be judged and the requirement that the failure of attentiveness be a "gross deviation" from even this individualized objective standard.

Thus, to punish violators in the absence of negligence under this carefully crafted standard is to punish persons without sufficient blameworthiness—they could not have been reasonably expected to have avoided the violation—and to risk demanding a degree of attentiveness that would be more costly to societal interests than can be justified. Indeed, strict liability, by disregarding the circumstances or the person's situation, mental and physical, inflicts punishment even on the person who acts perfectly reasonably even by a purely objective, unindividualized standard, as the common law frequently imposed.

Three sorts of arguments typically are given in support of strict liability: that strict liability is limited in application to situations where the person probably is at least negligent, that the use of strict liability will lead people to be more careful, and that only civil-like penalties are imposed for strict liability, so that no serious injustice is done.

First, it is argued that strict liability typically is limited to instances where a person necessarily is at least negligent, especially where the negligence bar is lowered by the increased seriousness of the offense. It seems unlikely that a person would not be at least negligent as to whether a sexual partner is under the age of ten, for example. Similarly, many states impose strict liability in holding a person liable for murder when an accomplice kills a person in the course of a felony, the so-called felony-murder rule. Many accomplices to a felony will be negligent as to contributing to such a death. They should have been aware that, by engaging in a felony where one of them planned to have a gun, for example, a death might result.

It may be true that some of the people convicted under these strict liability doctrines do in fact satisfy the requirements of negligence, but this will not be true for all persons convicted. Indeed, if we sought only to convict those who in fact were negligent, a negligence requirement would serve the purpose. Presumably the point of adopting strict liability instead of negligence is to allow liability to be imposed even in the absence of negligence.

In some cases, "under the circumstances known to [the person]," a reasonable person "in the person's situation" might well make a mistake as to a sexual partner being under ten years old. Yet strict liability, as the Model Penal Code provides in this instance, will impose significant liability in the absence of negligence, and therefore in the absence of blameworthiness. Similarly, the felony-murder rule will impose murder liability even if in the situation at hand no one could have guessed that there was any chance that someone would be killed. Unless negligence is explicitly required, liability can be imposed even if a person is clearly nonnegligent as to the offense.

One might argue that we can rely on the discretion of prosecutors to forego prosecution in such cases of nonnegligence, but others would claim that such an expectation is unrealistic and misguided. If we care about the demands of the legality principle, we will have criminal liability depend on written rules, not personal discretion. Further, the "trust discretion" argument essentially concedes that the law itself, when it adopts strict liability, fails to make the distinctions necessary for a just result.

A further defense of this negligence per se argument for strict liability points to the significant burden placed on prosecutors to prove negligence. The difficulties of negligence prosecution create a danger that blameworthy and dangerous people will go free. Moreover, negligence prosecutions may incur costs that strict liability prosecutions avoid.

A possible response to these arguments is to shift the burden of persuasion to the defendant on some culpability issues, instead of dropping the culpability requirement altogether. If a case can be made for the special difficulties of prosecution together with the special need for effective prosecution, then a rebuttable presumption will be employed to help the prosecutor. It will, in any case, be preferable from the defendant's point of view than the irrebuttable presumption of negligence that strict liability provides.

While this approach is used in other countries to limit the use of strict liability, it is forbidden in the United States because of broad constitutional rules that require the state to carry the burden of persuasion on all offense elements. Although the underlying sentiment seems sound, in this instance the Supreme Court's rule—together with the Court's constitutional approval of the use of strict liability—has created an unfortunate and somewhat inconsistent state of affairs.

A second line of argument in support of strict liability is the claim that its use will cause people to be more careful. This may be true; strict liability may make people more careful. What is left unclear is whether strict liability is more effective in this regard than negligence. The negligence standard requires a person to do all that he or she reasonably can be expected to do to be careful. What can the use of strict liability add to this? Strict liability might be able to encourage people to be even more careful than the circumstances reasonably would require. But this seems a questionable goal. As noted above, some risks ought to be taken and it may be harmful to society to have a person unreasonably preoccupied with all potential risks.

One might argue that, in a few instances, the potential harm is sufficiently serious that the law ought to do everything within its power to avoid a violation, and strict liability provides that special "super-punch." But this argument does not explain the current use of strict liability, which is most common in minor offenses and less common in more serious offenses. More importantly, the argument misunderstands the nature of negligence. In judging a person's negligence, the seriousness of the harm is taken into account. One's inattentiveness as to whether one is speeding might be nonnegligent, but the same degree of inattentiveness to a risk of hitting a pedestrian would be negligence. The negligence assessment takes account of both the likelihood of the harm risked and its seriousness, among other things. As the potential harm becomes greater, a person's ability to avoid negligence liability for inattentiveness disappears.

A final argument in support of strict liability focuses on its use primarily in minor offenses with minor penalties. When liability is imposed in the absence of culpability, it is argued, the penalties at stake—typically fines—make the prosecution essentially civil in nature. The argument finds support in modern codes, which commonly limit to some extent the available penalties when strict liability is imposed. As the Model Penal Code provides, "Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides, when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation" (Model Penal Code § 2.05 (2)(a)). And violations are offenses for which imprisonment is not authorized.

There are two difficulties with the minor penalties argument. First, as has been noted, strict liability is not in fact limited to minor offenses. Note, for example, that the Model Penal Code limitation applies only to "an offense defined by a statute other than the [criminal code]," thus allowing the imposition of lengthy imprisonment for offenses defined by the code, such as statutory rape of a person under age ten. Even if the use of strict liability were limited to minor offenses, however, the minor penalties argument is problematic. If strict liability is to be justified on the grounds that only minor, civil penalties such as fines are imposed, one may reasonably ask, Why not use civil liability?

One might counter that criminal procedures are faster and have other enforcement advantages. But if special procedures are needed, the legislature has the authority to alter the procedures for civil actions or create special procedures for a special group of civil violations. In fact, a primary reason the criminal process is preferred in most cases is its potential to impose the stigma associated with criminal liability.

It is true that the stigma of criminal conviction can provide a deterrent threat that civil liability does not. But to impose criminal liability where the violation is morally blameless—where normally only civil liability would be appropriate—is to dilute the moral credibility of the criminal law, which can have serious consequences for the criminal law's crime control power. As the criminal law is used to punish blameless offenders under strict liability, its ability to stigmatize is increasingly weakened and, therefore, so is its ability to deter. Each time the system seeks to stigmatize where condemnation is not deserved, it reduces incrementally its ability to stigmatize even in cases where it is deserved. Any advantage gained from using criminal law to punish blameless violations is purchased at a serious cost. This result is particularly troublesome because social scientists increasingly suggest that the criminal law's moral credibility plays a large part in its ability to gain compliance.