Combination Pack: Brotherly Bond and Indecent Intent

Some cases are so obviously inappropriate for federal concern that they can be disregarded within an hour. In , federal prosecutors were presented with just over , suspects for possible prosecution by federal investigators. Federal prosecutors declined to pursue cases against 29, of those individuals, or approximately However, that year the percentage of cases disposed of by U. A good portion of those defendants whose cases are dismissed federally will be brought up on state or local charges instead. Available evidence suggests that federal prosecutors have legitimate criteria in mind when they select defendants for prosecution or dismissal.

I. The Numbers: An Exploration of the Federal Criminal Code and Annual Caseloads

This figure is essentially unchanged from the data, showing a 1. See Motivans, Statistics , supra note , at tbl. Again, these figures are relatively unchanged from the data. Motivans, Statistics , supra note , at tbl. Federal prosecutors also frequently dismiss cases when the mens rea required for the offense includes a specific intent usually the intent to injure or deceive —a very difficult element to prove. Motivans, Statisics , supra note , at 10 tbl. How do federal prosecutors decide which cases to pursue and which to decline? They first consult the U. Attorneys Manual, which provides both general and specific rules.

A prosecutor should decline a case if the defendant is subject to effective prosecution in another jurisdiction. In addition to these general guidelines, there are many more specific ones pertaining to particular statutes, some requiring approval or at least consultation with Main Justice before charging.

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Attorney consult with state officials before initiating a federal prosecution under the carjacking statute ; id. Very little empirical work exists regarding the crucial question of how prosecutors implement these guidelines. The agreement is on file with the author. This project with Stefanie Lindquist seeks to examine all such data in an attempt to document how and why federal law enforcement agents and prosecutors select cases for federal prosecution.

Frase conducted a well-designed study of federal criminal prosecutors in the Northern District of Illinois in He found that the most frequent reasons why federal prosecutors declined to bring charges, in order of how frequently each reason was selected, were by our count as follows: One experienced analyst found in a empirical study of national drug prosecutions that those cases with the lowest drug weights were more likely to be declined by federal prosecutors.

The empirical data we do have demonstrates sensible reasons for declinations. Richman has noted that while the overlap between federal and state jurisdiction in criminal codes is substantial, there are unwritten boundaries between the two systems resulting from negotiations between state and federal prosecutors in each jurisdiction as to the kinds of cases that each should handle. Professor Klein found the existence of similar general agreements during her time as a trial attorney with the U.

Department of Justice and as a Special Assistant to the U. Drug Enforcement Agency , www. See Interagency Law Enforcement, U. These investigations target the very worst national and international traffickers, and each task force consists of state and local officials who endorse these federal prosecutions. In many cases, the state and local law enforcement agencies working alone lack the resources to efficiently prosecute interstate or international drug trafficking organizations.

Drug Enforcement Agency , http: Such figures suggest that the selection of these narcotics defendants for federal criminal prosecution is appropriate. We offer two responses to this criticism. First, it has little to do with the problem of over-federalization. Very few of the laws promulgated by Congress since the s were enacted to quell state or local experimentation with criminal justice policy, and few have that effect.

Our second response is more substantive. One of us made the argument a decade ago that our federalism remains vibrant despite concurrent federal and state jurisdiction over the same conduct. We continue to believe this to be true. One of the most active areas of state law experimentation at the moment is the use of medical marijuana. Many state laws on this subject are in direct conflict with the Federal Controlled Substances Act, which provides that marijuana has no recognized medical usage.

Oakland Cannabis Buyers Coop. United States, F. Connecticut passed a medical marijuana bill on May 5, At present, it appears to us that there is a stalemate. Federal officials realize that they are unlikely to be successful in prosecuting those who use medical marijuana, or even those who supply it, when trying to convince a jury comprised of citizens who voted to decriminalize medical marijuana use in the first place. While there have been public squabbles, to our knowledge there has been no actual federal prosecution of either a sick patient for use of medical marijuana, or of a state employee for providing the marijuana.

It is likely for this reason that the DOJ has expressly fought to keep courts from resolving the issue. We also note that the recent preemption case, Arizona v. However, this provides no guarantee that state employees and dispensaries will not be prosecuted under any circumstances. For that reason, the Arizona Department of Health Services, at the direction of Governor Jan Brewer, decided not to license any dispensaries pursuant to its medical marijuana law.

The suit asked the federal judge to rule that compliance with the Arizona law, which decriminalizes distribution, possession, and use of medical marijuana, provides protection from federal prosecution and is not preempted by federal law. The Department of Justice moved to dismiss the complaint on the grounds that the federal court lacked jurisdiction because there was no federal question—there was no actual controversy because there was no allegation that the state statute violated federal law or any state employee was likely to be prosecuted federally; the plaintiff lacked standing because there was no actual injury; and finally the case was not ripe for review because there was no genuine threat of federal prosecution.

It seems to us that if the Attorney General of the United States is willing to publicly state on the record that the Department of Justice is not going to prosecute any of the allegedly at-risk individuals in Arizona with violations of the Federal Controlled Substances Act, one can take him at his word.

Attorneys could pursue a federal case despite the directive from Main Justice to the contrary. Attorney Michael Ormsby and Seattle U. Marijuana trafficking may be of potential federal interest, the memorandum continued, if the following characteristics are present: Cole, Deputy Attorney Gen.

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Another current area of state experimentation is assisted suicide laws. The Supreme Court has been particularly active in preserving the role of states as laboratories. Three states now make it expressly legal for a doctor to actively help a patient commit suicide: Washington, Oregon, and Montana.

Times , May 23, , at A Note that the majority of states now expressly ban assisted suicide. For example, Michigan explicitly banned physician-assisted suicide in in direct response to Dr. Depending upon the method used to cause death, such laws Or. This potential clash set the stage for a showdown between federal and state power, which culminated in Gonzales v. Glucksberg , U. Quill , U. While the Court declined to recognize the right to die as a fundamental federal constitutional right, several Justices suggested that end-of-life planning, including assisted suicide, was properly understood as a medical issue, and that regulation of such medical issues was properly within the legislative province of the states.

Oregon as a Cautionary Tale , 35 J.

Criminal Code Act

Not only do they have more flexible mechanisms for factfinding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions. There is, indeed, good reason to suppose that in the absence of a judgment for respondents here, just such experimentation will be attempted in some of the States. Through its interpretation of the CSA and the Constitution, the Court has effectively created a safety zone where states can experiment relatively freely with medical marijuana and assisted suicide laws as they see fit.

Thus, proponents of competitive federalism might not be troubled by a situation where two adjacent states have enacted differing euthanasia policies, because such a multiplicity of perspectives is viewed as a desirable reflection of state citizens exercising their preferences. The Court is willing and able, in appropriate circumstances, to shelter states from aggressive federal enforcement that might otherwise threaten the vitality and diversity of state solutions to local problems.

We believe that where there are sufficient numbers of states in favor of an experiment, such as marijuana decriminalization and assisted suicide, the states will likely win any arguments with the federal government regarding federal enforcement of contrary laws. After all, as Jesse Choper and others argued years ago, these states have representation in the House and Senate to protect their interests.

Choper, Commentary, Federalism and Judicial Review: An Update , 21 Hastings Const. Bickel, The Least Dangerous Branch: Where the state norm is a true outlier, and its position seems outrageous as a matter of substantive law or penalties or procedures, it may get trampled by contrary federal law.

Introduction

However, this is essentially a problem of federalism itself, and not a result of the explosion of the federal criminal code or any particular federal law. For the most part, state experimentation on the best way to handle recognized social ills, including criminal misconduct, continues unabated. A second line of argument for those attacking the phenomenon of over-federalization is the claim that too many federal laws provide undue discretion to federal prosecutors. Many who complain that the myriad of federal crimes disrupt federal—state relations are bothered most by two types of statutes: Both types of laws, they claim, give federal prosecutors undue power to sanction a wide range of conduct that is not sanctioned in the states.

In fact, as we will demonstrate below, there are very few federal statutes that presently fit into either of these categories, and the few that fit are either rarely used or their definitions have been sufficiently narrowed by the Court. Moreover, these kinds of laws might just as easily be enacted at the state level. The criticism of poorly drafted laws and strict liability offenses is not particular to the over-federalization debate, but rather is a broad critique of over- criminalization , a distinct issue from the one under consideration here.

Careful scholars complain not that too many federal crimes exist, but rather that a few well-known federal crimes are poorly conceived or poorly drafted, and that these account for a substantial number of unwarranted federal prosecutions. Strict liability statutes that criminalize morally blameless conduct are unjust; every first-year law student learns that an evil mind must accompany the evil act.

The existence of such strict liability offenses allows federal prosecutors to pick and choose from any hapless, non-blameworthy person because it is difficult for most of us to avoid conduct that we do not consider morally wrong. Examples of this kind of offense are found in the criminal provisions of the Federal Food, Drug, and Cosmetics Act. Likewise, with overbroad statutes, no one knows exactly what conduct is criminal until a federal prosecutor exercises her discretion to charge under such a law and a court opinion later upholds or rejects her theory.

A paradigmatic example of this type of prohibition is the mail fraud statute. We do not find the existence of such federal statutes to be nearly as serious a problem as some suggest. Any troubling issues stem not from over-federalization or over-expansion of federal jurisdiction, but rather are attributable to drafting problems present in a very small percentage of federal laws, particularly public welfare offenses, fraud offenses, and obstruction statutes.

These drafting deficiencies have effectively been corrected at the federal level in a variety of ways so as to alleviate the concerns of those who cry foul. It is difficult to briefly counter the critiques against federal strict liability crimes in part because the concept is so ill-defined. At other times, these groups use the same strict liability language to attack federal regulation of business activity.

Our review of the historical record and examination of current judicial interpretations of such federal criminal offenses raises little cause for alarm. In order to frame a response to the critics, we must first start with definitions and categorizations. A defendant may claim he did not know his conduct was wrongful either because he lacked awareness about a particular fact that made his conduct unlawful, or because he lacked awareness of the law itself.

Staples was convicted of violating the National Firearms Act by knowingly possessing a prohibited firearm, in his case an automatic assault rifle, despite his argument that he did not realize that his AR had been modified from a semi-automatic to an automatic one. Freed was also convicted of violating the same provision of the National Firearms Act by knowingly possessing a prohibited firearm—in his case, a hand grenade—despite his argument that he not realize that the law forbids possession of grenades.

When a defendant argues that he lacked awareness regarding the nature of his conduct, the Court frequently reads in an extra-textual mens rea regarding that fact. There is a limited exception here for certain public welfare offenses. Dotterweich and United States v. Park infra notes —53 and accompanying text. When the defendant claims he lacked awareness that his conduct was illegal, the Court will not import mens rea into the law because ignorance of the law is no excuse.

There is a limited exception here for certain offenses where a defendant may not be on notice of the law that makes his conduct wrongful. We will revisit both exceptions. United States and Lambert v. California infra note and accompanying text. Our definitions and classifications are much simpler than is true in practice. The Court has been notoriously bad at distinguishing between knowledge of law and knowledge of facts. Accepting our terminology, this outcome—that true strict liability is generally prohibited but semi-strict liability is generally acceptable—can be attacked on two bases.

First, one could argue that no sensible theory of punishment should allow criminal convictions where there is true strict liability—where the government fails to prove knowledge of all of the facts that make the conduct unlawful. The Staples rule should be a hard and fast one. If a person is unaware that she is engaging in wrongful conduct, there is no point in punishing her she cannot be deterred, and she is not a proper target of retribution.

Second, one could argue that it is unjust to tolerate semi-strict liability where the federal statute prohibits conduct that is not plainly immoral on its face. The maxim that ignorance of the law is no excuse is perfectly sensible as applied to malum in se offenses; no one seriously contends that it should be a defense that a defendant did not know that bank robbery or murder of a federal official was an offense.

However, semi-strict liability may be problematic for malum prohibitum crimes, where the law governs behavior outside the moral sphere and an individual may not be aware of the law. Our answer to these attacks relies on considerations of practicality and logic. In the early to mids, culminating in the New Deal, the federal government began enacting a number of regulatory statutes to protect our air, water, stock exchange, and general physical and economic health. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers.

Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care.

Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect.

Most of these criminal provisions apply to businesses and high-level corporate officials, though a few apply directly to ordinary persons.

Federal Register of Legislation - Australian Government

There have since been a series of additional regulatory efforts, such as the Clean Air Amendments of , Clean Air Amendments of , Pub. Most of these public welfare crimes are what we call semi-strict liability offenses that lack a mens rea component regarding whether the conduct violated the law.

A few of them are what we term true strict liability offenses that allow conviction when a defendant lacks mens rea regarding all facts that made the conduct criminal. The Court recently summarized the contours of public welfare offenses as follows:. This quote was made in the context of a disagreement between the majority and dissent regarding whether the National Firearms Act was a public welfare statute. The majority believed that the action was not a public welfare offense, and that therefore Congress intended that the government prove that the defendant had the requisite knowledge as to the type of weapon in his possession.

To that list of characteristics, we would add number four: While we find these descriptions in the two cases quoted above useful, we note again that the cases cited in Staples and Morissette failed to distinguish between knowledge of facts and knowledge of law. In a series of cases between and , the Court permitted criminal prosecutions in semi-strict liability cases, See, e. Though the Justices did not discuss the difference between true strict liability crimes and semi-strict liability crimes, we think the Court arrived at the right results for the right reasons.

True to its later description in Staples , the Court limited true strict liability in public welfare offenses to corporate officials in a regulated industry and the penalties were small.

The Hound of The Baskervilles by Sir Arthur Conan Doyle

In United States v. Dotterweich , the Court affirmed a misdemeanor conviction under the Federal Food, Drug, and Cosmetic Act against the president and general manager of a company for shipping misbranded drugs in interstate commerce and for shipping adulterated drugs. The defendant was not proven to have known that the drugs he shipped and sold were adulterated or misbranded, but the Court nevertheless upheld his conviction in large measure because he was in a superior position, as compared to the public, to prevent such harms:.

Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are totally helpless.

The Dotterweich Court relied on United States v. Balint , U. The Balint case involved a claim of ignorance of the law, whereas the defendant in Dotterweich claimed ignorance of the facts. The Court did not acknowledge in Dotterweich that it was relaxing the usual mens rea requirement regarding knowledge of the facts for a public welfare offense.

The defendant argued not that it did not realize it was shipping hazardous chemicals, but rather that it did not know about the federal regulations. Though the defendant did not argue that it was unaware of the facts surrounding its conduct—that it was shipping dangerous chemicals—the Court nonetheless noted that the government bears the burden of proving that the defendant knew he was shipping dangerous chemicals of some kind.

This case, like Balint but unlike Dotterweich , represents an example of a semi-strict liability as opposed to a true strict liability offense. Ignorance of the law is no defense, but the prosecution must still prove awareness of conduct. Other provisions have a minimal requirement of knowledge as to the facts constituting the offense. Given the outcry against such laws, you would think there were hundreds in existence. In practice, the Court accepts a true strict liability construction only in the case of statutes that target prosecution of high-level corporate officials, and even then, only when the penalty is limited to a misdemeanor conviction.

The Court has been rightly unwilling to expand the category of true strict liability offenses beyond public welfare offenses since Dotterweich in The purpose behind a true strict liability offense is to allow the responsible corporate official to be held accountable, even when the actual conduct in that case, shipping the adulterated food was done by an underling.

The responsible corporate official should have kept himself apprised of the facts on the ground, as well as the law on the books. Thus, in the more recent United States v. Park , U. Park had no defense that he was unaware that the food he was storing for sale contained rat droppings—given the interests at stake, he should have been aware. The law requires that a person in his high-level position institute procedures for discovering and remedying such problems in his own warehouse before his product joins our national food supply. The remaining federal regulatory public welfare offenses enacted by Congress and upheld by the Court are semi-strict liability offenses where ignorance of the law is no excuse , such as the Securities Exchange Act of , Securities Exchange Act of SEA , Pub.

See also 33 U. Negligent CWA violations are misdemeanors. Section of the HMTA prohibits knowing violations of shipping regulations. The Balint , International Minerals , and Freed cases discussed above fall into the category of semi-strict liability offenses. Like the true strict liability offenses, these statutes apply primarily to corporate officials who have easy access to the law, though they may infrequently apply directly to individuals, like the National Firearms Act in Freed. Freed is the only example of this we could find. Limiting liability to business executives or individuals handling highly dangerous items generally ensures that truly innocent persons are not ensnared.

The attack on these laws is less convincing than the attack on true strict liability; after all, ignorance of the law is no excuse. In that instance, where the government fails to prove knowledge of the law, it is arguable that this can result in the conviction of someone not morally blameworthy in the conventional sense. This is the argument that we hear frequently from the conservative press and special interest groups, House Hearings , supra note 6; Reigning In Overcriminalization: Assessing the Problem, Proposing Solutions: Levenson, Good Faith Defenses: Such knowledge exploits its gaps in statutory coverage.

We should allow judges to make moral judgments regarding when ignorance of the law should be an excuse. We agree with this position and find the attack on semi-strict liability offenses ultimately unpersuasive. When the Court finds a law to be an acceptable public welfare, semi-strict liability offense, it is making a normative judgment that those subject to such laws should know about them. Just as we expect ordinary citizens to know about laws against assault and theft, so too do we expect corporate executives with in-house counsel to know and understand business regulations aimed at protecting public health and safety.

Most of us believe that those in a position to dump chemicals into a river should know that doing so is illegal and immoral. So far, in our minds, the Court has gotten the normative judgment just about right. In those rare instances when there is no notice of the law, the defendant is not likely to have financial access to a lawyer, or the law is simply too difficult to comprehend, the Court has been willing to read knowledge of the law into the statute.

The Court went further in one instance, striking down a state public welfare offense that it could not reinterpret to include a requirement to prove knowledge of the regulation. Behind the claims of statutory proliferation in the area of business regulation is the critique by the business community that the criminal law ought not to be so readily deployed to shore up regulatory regimes.

However, these same critics refuse to fund the civil enforcement arms of those regulatory regimes. Essays on the Themes of William J. Stuntz 64 Michael Klarman et al. Thus, the government must continue to rely on law enforcement and its deterrent effects. The bottom line is that it might be better to enforce true strict liability regulatory measures with civil liability, and retain the criminal law for clearly morally blameworthy conduct.

On the other hand, only the criminal law can send the clear message to the community that violation of regulations controlling our environment, our food and health, and our economy will not be tolerated. So long as the penalties are small and the prosecutions are limited to those corporate executives who have all the legal assistance they need to comply with these regulations, we will not lose any sleep over it.

Many more are public welfare offenses that do require the prosecutor to prove knowledge of the law, or they are not public welfare offenses at all, but are instead ordinary crimes with traditional mens rea elements. Now for the statistics: Even these quite modest figures are overblown, as civil rights statutes and copyright statutes are not strict liability crimes, nor are they semi-strict liability public welfare offenses.

In fact, civil rights and copyright criminal provisions expressly require proof of mens rea. They require the intent to violate civil rights. Thus, criminal copyright provisions are clearly not strict liability crimes where the prosecution must prove willfulness. Even when public welfare offenses are prosecuted, the sentences tend to be quite lenient.

While there are a significant number of federal fraud prosecutions stemming from business schemes, and some fraud defendants receive moderately serious prison time though relative to drug and immigrations sentences, they are still quite low , the same is not true of public welfare offenses. The number of regulatory prosecutions is so low, and such prosecutions so rarely result in prison time, that the same few and dated examples are recycled through the press year after year. However, these articles provide no examples of actual prosecutions under those provisions.

In fact, to be convicted under the Smokey Bear provision, a defendant must knowingly misappropriate the image for profit. This is a misdemeanor offense, with a maximum prison sentence of six months. We would classify that as a semi-strict liability offense because ignorance of the law is no excuse.

See also 18 U. The first of these Wall Street Journal articles offers as an example Mr. This means the defendant must know he is engaging in the conduct, but the government need not prove that he knew such conduct was illegal. Thus, the statute is a semi-strict liability, public welfare offense that carries a misdemeanor penalty and low likelihood of prison time.

The second article discusses Mr. Anderson, who in pled guilty under the Archaeological Resources Protection Act ARPA to taking arrowheads off federal land without a permit, a misdemeanor offense leading to a sentence of probation. Under the ARPA, a prosecutor must demonstrate that a defendant knew all of the pertinent facts surrounding his criminal conduct, but need not prove that he knowingly violated the law.

Again, this is a semi-strict liability, public welfare offense. An ordinary person should be on notice that digging up and taking arrowheads and the like, especially when they are valuable, is a regulated activity. It is reasonable to require that individuals check such regulations before taking these finds, especially after their first conviction. And finally there is Mr. What we find interesting about these cases is that no one received any jail time, and all defendants knowingly engaged in conduct that should have alerted them to the possibility of regulation.

Perhaps most importantly, the journalists writing these stories only found a handful of such prosecutions nationally, despite their best efforts. Outside of corporate officials who might violate public welfare prohibitions, ordinary citizens have little cause for concern regarding the possibility of federal criminal prosecution.



The Supreme Court has gotten into the habit over the last few decades of interpreting federal criminal proscriptions narrowly, or importing extra-textual mens rea requirements, in order to avoid difficult constitutional questions. The few true strict liability statutes have been confined primarily to prosecutions of corporate officials who act in a responsible relation to the general public while trading it harmful items.

Outside of the public welfare context, the Court has been surprisingly active in successfully moving beyond the reach of federal criminal law those classes of individual defendants who may not be morally blameworthy. This is accomplished almost exclusively through statutory interpretation by reading in a mens rea requirement when the statute is otherwise devoid of one. Davies, The Jurisprudence of Willfulness: Michaels, Constitutional Innocence , Harv. Culpability in Federal Criminal Interpretation , 85 Va.

California , U. We predict that if the Court is someday forced to declare another strict liability offense unconstitutional, it will be a state and not a federal offense. There are quite a number of examples of cases where the Court has read a mens rea component into a federal statute, thereby preventing federal prosecutors from charging non-blameworthy conduct or at least preventing them from having more such authority than that possessed by state prosecutors.

In some of these cases, the Court imposed a requirement of knowledge as to facts where it is the facts that make the conduct wrongful , and in some instances the Court imposed a requirement of knowledge as to the law where it is not otherwise obvious to most citizens that their conduct would be wrongful. Subdivision A—People smuggling offences. Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries. Subdivision C—Urging violence and advocating terrorism or genocide. Subdivision C—General provisions relating to offences.

Subdivision A—Objects of this Division. Subdivision B—Making an interim control order. Subdivision C—Making an urgent interim control order. Subdivision D—Confirming an interim control order. Subdivision E—Rights in respect of a control order. Subdivision F—Adding obligations, prohibitions or restrictions to a control order.

Subdivision G—Offences relating to control orders. Subdivision H—Special rules for young people 14 to Subdivision B—Preventative detention orders. Subdivision C—Carrying out preventative detention orders. Subdivision D—Informing person detained about preventative detention order. November 10, Sold by: Share your thoughts with other customers. Write a customer review. There's a problem loading this menu right now. Learn more about Amazon Prime. Get fast, free shipping with Amazon Prime.

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