Rethinking Strict Liability Felonies: The Need for a Constitutional Mens Rea Requirement in the 'Republic of Statutes'

Abstract

In Morissette v. United States, the Supreme Court interpreted a federal statute that did not include any explicit mens rea element as requiring proof of criminal intent or blameworthiness for a conviction. The Court noted that the statute penalized theft, a malum in se (wrong in itself) crime that traditionally included a mens rea element. Because theft is a malum in se crime with deep roots in the common law, the Court held that the statute should be construed as including an implicit mens rea requirement. In its decision, the Court distinguished between malum in se offenses and “public welfare” (or malum prohibitum, wrong because prohibited) offenses, holding that the latter, but not the former, may omit mens rea requirements.In this Article, I argue that strict liability felonies should be uniformly unconstitutional. In the decades since Morissette, the proliferation of criminal statutes has changed the nature and scope of criminal law. Many strict liability criminal statutes lack a common law pedigree and cannot be characterized as malum in se crimes, but also carry severe penalties and are not “regulatory” in the sense envisioned by the Morissette court. These novel crimes raise a host of rule of law problems that could be mitigated by a constitutional mens rea requirement. In particular, statutes that impose no-fault criminality rely on the judgment and discretion of law enforcement officials and prosecutors to perform the traditional function of mens rea and target only those who act in a morally blameworthy manner. This subverts the rule of law and is constitutionally impermissible.