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July 7, 1993


The opinion of the court was delivered by: JACK B. WEINSTEIN


 These cases present two profound and fundamental questions about the operation of the criminal law in a democratic constitutional society. Can the requirement of proof of mens rea as a basis for criminals' punishment be circumvented by manipulation of a sentencing system? Can the guarantees of a jury trial to determine the substantive predicates of criminality be shortcircuited by characterizing a critical element of great significance in deciding punishment as one for the judge to determine in fixing sentence -- a sentence predetermined under fixed guidelines, not one imposed under a discretionary regime?

 To impose the sentences demanded by the prosecution under the United States Sentencing Guidelines (Guidelines) would require that both these questions be answered affirmatively. To do so in the context of the instant cases would be to strike a blow at constitutional protections that developed in England and this country over almost a millenium. Congress could not have intended such a bizarre and dangerous result when it adopted guideline sentences. The war on drugs does not require that we win a minor battle with two drug mules by denigrating what we seek to protect -- constitutional rights and privileges.

 Defendants imported heroin into the United States believing it to be cocaine. The punishment under the Guidelines for smuggling heroin is greater than for bringing in cocaine. The issue presented is how to treat their mistakes of fact: should they be punished only for the crimes they believed they were committing?

 The unique new context of guideline sentencing and the serious drift of the federal criminal law away from first principles require that this problem be treated at some length. A rational and principled system of criminal sanction cannot tolerate the addition of many months of imprisonment to these defendants' sentences simply because it may be inconvenient to draw distinctions based upon traditional notions of mens rea. Congress did not require such a result and the Constitution does not countenance it. Consistent with the fundamental Anglo-American tradition that blameworthiness hinges upon a culpable state of mind, defendants' punishments must be limited by their culpability.


 A. Cordoba-Hincapie

 Defendant Maria Theresa Cordoba-Hincapie is 38 years old and a Colombian citizen. On May 4, 1992 she arrived at Kennedy Airport on a flight from Colombia. During the United States Customs inspection that followed her arrival, an x-ray examination revealed balloons in her digestive tract. The balloons contained 772.8 grams of heroin.

 Ms. Cordoba-Hincapie was born in Columbia and raised there, with her seven siblings. Her mother washed clothes to support the family. Defendant never married and now has three daughters, ranging in age from nine to eighteen. The children's father has not been in contact with the family since 1990. They have no means to support themselves. Defendant has had five years of education. She has found occasional work in Colombia as a seamstress and at other menial tasks. She came to the United States in hopes of obtaining an operation to cure the loss of hearing in an ear. She planned to use the proceeds of her crime to pay for the operation and to support her family upon her return to Colombia. The government does not contest her account.

 She was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C.§§ 952(a) and 960(b)(1)(A). Section 960(b)(1)(A) requires a sentence of at least ten years of imprisonment for importation of in excess of one kilogram of heroin. On July 9, 1992, she pled guilty, pursuant to an agreement with the government that is now common in this district, to the lesser penalty provision of § 960(b)(2)(A) which carries a minimum sentence of five years imprisonment for 100 grams or more of heroin. That agreement provided that, should the laboratory report reveal the net weight of the heroin to be less than one kilogram, the indictment and plea would be amended at the government's request to charge a violation of § 960(b)(3), which carries no mandatory minimum term of incarceration. The drugs did turn out to weigh less than a kilogram and thus no statutory minimum applied to her sentence.

 The government, by allowing a plea predicated on less than 100 grams of heroin, was able to avoid the harsh required minimum sentences of our drug laws. See United States v. McClean, 822 F. Supp. 961 (E.D.N.Y. 1993). It did not -- or so the government argues -- avoid the strictures of the Guidelines which require the "real offense" to control the sentence. If she was smuggling heroin, the Guideline range would be 46 to 57 months. For cocaine, it would be 30 to 37 months.

 A Fatico hearing was held at which defendant testified and was cross-examined about the events leading up to her crime. She stated, as she did at her plea allocution, that she was told by the person for whom she acted as courier that the opaque balloons he provided contained cocaine. She testified that she believed him, made no further inquiry, swallowed the balloons and departed from Colombia thinking that she was carrying cocaine. She swore that she was not aware of heroin smuggling from Colombia, had not previously imported drugs and did not know other smugglers. Defendant also submitted a newspaper article describing her case and discussing the relatively novel phenomenon of Colombian production and export of heroin. See Scott Ladd, Heroin Haulers, Newsday, May 26, 1992, at 3.

 Her testimony was credible. Based upon her education, her experience, the facts surrounding her involvement in this crime, the physical resemblance between cocaine and heroin and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that she believed she was importing cocaine.

 B. Buelvas-Castro

 Defendant Libardo Buelvas-Castro is 37 and a Colombian citizen. He arrived at Kennedy Airport on a flight from Colombia on December 11, 1992. An x-ray examination during a Customs inspection revealed foreign bodies in his digestive tract. The balloons contained 686.7 grams of heroin.

 Defendant was born in Colombia and raised in an intact family. He married in 1976 and now has four children between the ages of nine and fourteen. He has been employed as a butcher since 1977. He has had five years of school.

 He was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A). Section 960(b)(2)(A) mandates a prison term of at least five years for importation of in excess of 500 grams of heroin. Pursuant to an agreement like Cordoba-Hincapie's, he was permitted to plead guilty to one count of importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(3). Section 960(b)(3) carries no mandatory minimum sentence. For smuggling heroin, the Guideline range is 37 to 46 months. For cocaine it is 30 to 37 months.

 At his plea allocution on March 23, 1993, defendant swore that he was told by the person for whom he acted as courier that he would be carrying 600 grams of cocaine. He said he was given prepared packages to swallow in Colombia and told that he would be met at Kennedy Airport.

 Defendant testified at a Fatico sentencing hearing that his Colombian handler told him he was swallowing cocaine. He swore that he believed the representation because he was not familiar with drugs and that he did not ask any questions. He stated that he is from the coastal region of Colombia, that heroin is not produced there, that he does not read newspapers and that he did not learn that heroin is produced in Colombia until after he came to the United States.

 The government contended that heroin is now the predominant drug for export from Colombia. It was afforded the opportunity to adjourn the hearing and produce evidence in support of this contention. It declined to do so.

 Based upon defendant's background and education, the circumstances surrounding his involvement in this crime, the physical resemblance between heroin and cocaine and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that he believed he was importing cocaine.


 A. The Mens Rea Principle

 The term, "mens rea," meaning "a guilty mind; a guilty or wrongful purpose; a criminal intent," Black's Law Dictionary 1137 (4th ed. 1968), is shorthand for a broad network of concepts encompassing much of the relationship between the individual and the criminal law. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes 217 (1989) ("A common usage is to express all . . . qualifications to liability in terms of the requirement of mens rea."). These doctrines of criminal responsibility and the theories that support them are deeply rooted in our legal tradition as one of our first principles of law. To understand its import, it is necessary to unpeel the terse Latin.

 1. Origins

 Western civilized nations have long looked to the wrongdoer's mind to determine both the propriety and the grading of punishment. See, e.g., Morissette v. United States, 342 U.S. 246, 250, n.4 96 L. Ed. 288, 72 S. Ct. 240 (1952) ("For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law, see Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126."). "For hundreds of years the books have repeated with unbroken cadence that Actus non facit reum nisi mens sit rea." Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974, 974 (1932) [hereinafter Sayre, Mens Rea ]; see also Black's Law Dictionary 55 (4th ed. 1968) (defining the actus non rule: "An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent be criminal."). This is the criminal law's mantra.

 In his dialogues in Laws, Plato attempts to construct an ideal criminal code. He rejects the then-prevailing distinction between voluntary and involuntary acts in favor of gradation of crimes based upon levels of intent. A.E. Taylor, Introduction, in The Laws of Plato xlix-1 (A.E. Taylor trans., 1934). Plato's "Visitor from Athens" explains:

What the legislator has to ask himself is whether the agent of the beneficial or detrimental act is acting with a rightful spirit and in a rightful manner. . . . He must aim throughout his legislation at reconciling the minds of the authors and sufferers of the various forms of detriment by award of compensation, and converting their difference into friendship. . . . And then as to wrongful detriment -- or gain, either, in the case that a man should cause another to profit by a wrongful act -- such things, as we know, are maladies of the soul, and we must cure them whenever they are curable. . . . And so, if we can but bring a man to this -- to hatred of iniquity, and love of right or even acquiescence in right -- by acts we do or words we utter, through pleasure or through pain, through honour bestowed or disgrace inflicted, in a word, whatever the means we take, thus and only thus is the work of a perfect law effected.

 Id. at 250-51 (emphasis in original). Plato then proceeds to lay out a nuanced criminal code that permits defenses based upon insanity, infancy and other forms of incapacity, that punishes premeditated murder more severely than homicide committed in the heat of passion and that absolves those who act unintentionally. Id. at 253-73 ("If a man unintentionally cause the death of a person . . . he shall, on accomplishing such purifications as may be directed by a law for these cases received from Delphi, be esteemed clear of pollution.").

 The ancient English law tended towards strict liability for acts. But-for causation was considered the essential prerequisite to criminal fault. II Frederick Pollock & Frederic William Maitland, The History of English Law 470-71 (2d ed. 1968) ("If once it be granted that a man's death was caused by the act of another, then that other is liable, no matter what may have been his intentions or his motives."); see also Sayre, Mens Rea, supra, at 975-80. The "most primitive laws," according to Pollock and Maitland, held men liable for "acts" done by their slaves, beasts and even their possessions. II Pollock & Maitland, supra, at 472-73 ("If his sword kills, he will have great difficulty in swearing that he did nothing whereby the dead man was 'further from life or nearer to death.'"). Pollock and Maitland explain that the early law was hostile to the notion of examining an individual's mental state:

It is hard for us to acquit the ancient law of that unreasoning instinct that impels the civilised man to kick, or consign to eternal perdition, the chair over which he has stumbled. But law which would not confess to sanctioning this instinct still finds grave difficulties in its way if it endeavors to detect and appreciate the psychical element in guilt and innocence. "The thought of man shall not be tried, for the devil himself knoweth not the thought of man": thus at the end of the middle ages spoke Brian C.J. in words that might well be the motto for the early history of the criminal law.

 Id. at 474-75. While "up to the twelfth century the conception of mens rea in anything like its modern sense was non-existent," Sayre, Mens Rea, supra, at 981, it should be remembered that the very nature of most offenses rendered them unlikely or impossible of commission without some level of intent and that state of mind "seems to have been a material factor, even from the very earliest of times, in determining the extent of punishment." Id.

 Toward the end of the Middle Ages, the modern focus on the criminal's state of mind gradually began to evolve. "The history of the recognition of culpable states of mind should be viewed as a continuing process of self-civilization." Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 850 (1980) (describing evolution of culpability distinctions from ninth century to present). By the end of the twelfth century, the Roman law, with its concept of culpa, and the canon law, with it emphasis on moral guilt, began to influence the development of doctrines of culpability. Sayre, Mens Rea, supra, at 982-83. Holdsworth explains,

As the idea grew up that to constitute a crime there must be some sort of a mens rea on the part of the accused, it came to look unjust to accuse a man of theft merely because he happened to be in possession of goods to which another had a better right.

 III A.W. Holdsworth, A History of English Law 322 (1927). The book of Leges of Henry I, which tends toward more primitive concepts of strict liability, recites in connection with the offense of perjury, "reum non facit nisi mens rea." Sayre, Mens Rea, supra, at 983. It was inevitable that the development of the criminal law, based as it is upon general and evolving societal mores, would track the development of prevailing views about moral wrongdoing. "The early felonies were roughly the external manifestations of the heinous sins of the day." Id. at 989. The word "felon" itself is a derivative of a Latin term meaning one who is "full of bitterness or venom" and who is "cruel, fierce, wicked, base." II Pollock & Maitland, supra, at 465.

 "The requirement of a guilty state of mind (at least for the more serious crimes) had been developed by the time of Coke." Glanville Williams, Criminal Law: The General Part 30 (2d ed. 1961). Coke, writing in the seventeenth century, described the crime of treason as follows:

So as there must be a compassing or imagination, for an act done per infatunium, without compassing, intent, or imagination, is not within this act, as it appeareth by the expressed words thereof. Et actus non facit reum, nisi mens sit rea. . . . This compassing, intent, or imagination, though secret, is to be tryed by the peers, and to be discovered by circumstances precedent, concomitant, and subsequent, with all endeavour evermore for the safety of the king.

 Edward Coke, Third Institute 6 (London, W. Clarke & Sons 1817).

 In discussing larceny and theft, he declared,

First it must be felonious, id est, cum anima furandi, as hath been said. Actus non facit reum, nisi mens sit rea. And this intent to steale must be when it cometh to his hands or possessions: for if he hath the possession of it once lawfully, though he hath animum furandi afterward, and carrieth it away, it is no larceny. . . .

 Id. at 107.

 Once the "exceedingly vague" concept of moral blameworthiness, Sayre, Mens Rea, supra, at 994, was recognized the law embarked upon the long journey of refinement and development of culpability distinctions that continues to this day. Id. at 994-1004. Increasing precision in the law of excuses and defenses was partly a cause and partly an effect of the firmness with which the mens rea principle came to be held. VIII A.W. Holdsworth, supra, at 433. After the twelfth century, defenses such as insanity, infancy or compulsion began to be recognized as negativing guilt. Sayre, Mens Rea, supra, at 1004-06. Mistake of fact did not become a well-recognized defense until the seventeenth century. Id. at 1014; see also VIII A.W. Holdsworth, supra, at 434. Holdsworth, in a chapter covering the fourteenth and fifteenth centuries, writes,

The law has left far behind old rules which look merely at the act and neglect the intent; but it has not therefore swallowed whole the canonist's theory that moral guilt should be chiefly regarded. A formed intent not manifested by any overt act, even a frustrated attempt, will not amount to a felony.

 II A.W. Holdsworth, supra, at 452.

 By the time Blackstone came to write his Commentaries in the middle of the eighteenth century, he was able to summarize the English criminal law as follows:

All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. . . . As no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise then as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. . . . And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

 II William Blackstone, Commentaries on the Laws of England *20-21 (emphasis in original).

 2. Modern View

 a. Theory

 Two general statements can be made with some confidence about the status of mens rea in the modern criminal law. First, "when it comes to attaching a precise meaning to mens rea, courts and writers are in hopeless disagreement." Sayre, Mens Rea, supra, at 974; see also Leo Katz, Bad Acts and Guilty Minds 165-209 (1987) (exploring, through hypotheticals, the complexity of the mens rea principle); Gary V. Dubin, Mens Rea Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility, 18 Stan. L. Rev. 322, 325 (1966) ("In sharp contrast to its nearly defied legal status, [mens rea ] has for centuries remained anomalously and bafflingly elusive."). Second, mens rea in some form remains a defining and irreducible characteristic of the criminal law. Glanville Williams, one of this century's most astute commentators on the criminal law, put the matter succinctly:

It may be said that any theory of criminal punishment leads to a requirement of some kind of mens rea. The deterrent theory is workable only if the culprit has knowledge of the legal sanction; and if a man does not foresee the consequences of his act he cannot appreciate that punishment lies in store if he does it. The retributive theory presupposes moral guilt; incapacitation supposes social danger; and the reformation aim is out of place if the offender's sense of values is not warped.

 Glanville Williams, Criminal Law: The General Part 30 (2d ed. 1961); see also Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 109 (1962) (to punish without reference to the actor's state of mind has no deterrence value and cannot be justified on retributive grounds since the actor is not morally blameworthy). Stephen, in summarizing the development of the English law, captures the relationship between these two general observations:

The maxim, "Actus non facit reum nisi mens sit rea," is sometimes said to be the fundamental maxim of the whole criminal law; but I think that, like many other Latin sentences supposed to form a part of the Roman law, the maxim not only looks more instructive than it really is, but suggests fallacies which it does not precisely state. . . . The truth is that the maxim about "mens rea" means no more than that the definition of all or nearly all crimes contains not only an outward and visible element, but a mental element, varying according to the different nature of the different crimes.

 Sir James Fitzjames Stephen, A History of the Criminal Law of England 94-95 (1883); see also Williams, supra, at 32-33 (recognizing that mens rea requirement has been modified where necessary, permitting liability based upon negligence and even ("a more dubious development") without regard to fault).

 Holmes also analyzed the problem of mens rea from a utilitarian perspective. For Holmes, though deterrence is the "chief and only purpose of punishment," Oliver Wendell Holmes, The Common Law 46 (1881), retribution is also a justifiable goal:

It may be said, not only that the law does, but that it ought to, make the gratification of revenge an object. . . . The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.

 Id. at 41-42. Both the deterrent and retributive objectives were justifiable, according to Holmes, because "no society has ever admitted that it could not sacrifice individual welfare to its own existence." Id. at 43. As with Bentham, even though there would be no moral objection to punishing the unwitting actor in order to improve society as a whole, some form of culpability is required to ensure the effectiveness of penal sanctions. "[A] law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear." Id. at 50.

 The most salient aspect of Holmes' analysis, however, is his ready admission of negligence as satisfying the mens rea principle. According to Holmes, the criminal law, like tort law, should serve to compel individuals to bring their conduct within the parameters of what society deems reasonable. Id. The test for culpability should be primarily an "external" one and the mens rea requirement is satisfied as long as the actor is aware of circumstances "in which [his or her acts] will probably cause some harm which the law seeks to prevent." Id. at 75. Not only must the individual "find out at his peril things which a reasonable and prudent man would have inferred from the things actually known," id., but strict liability is also implicitly permissible on his account since there will be instances in which the individual "must go even further, and, when he knows certain facts, must find out at his peril whether the other facts are present which would make the act criminal." Id. In general, strict liability has been limited to civil cases. Modern law has been reluctant to extend the concept to criminal malum in se offenses -- the category into which drug dealing has been placed, even if only recently, by our society and legislatures.

 While recognizing that "legal history shows a continual movement back and forth between extreme solicitude for the general security and extreme solicitude for the individual life," Roscoe Pound described the mens rea principle as fundamental:

It remains true that our legal treatment of delinquents is not preventive but is punitive in its whole conception and administration. Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong. It assumes that the social interest in the general security and the social interest in the general morals are to be maintained by imposing upon him a penalty corresponding exactly to the gravity of his offense. It is enforced by an elaborate machinery of execution of the appointed sentence.

 Roscoe Pound, Introduction, in Francis Bowes Sayre, A Selection of Cases on Criminal Law xxxiv-xxxvii (1927).

 The leading modern texts have taught the importance of mens rea in the criminal law. See, e.g., Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes 217-18 (1989); Williams, supra, at 30-33. In his classic treatise, Bishop reports, "Prompting the act, there must be an evil intent. . . . An act and evil intent must combine to constitute a crime." 1 Joel Prentiss Bishop, Bishop on Criminal Law §§ 205-06 (9th ed. 1923); see also Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 81 (1908) ("It is a fundamental principle of the criminal law, for which no authorities need be cited, that the doer of a criminal act shall not be punished unless he has a criminal mind."). "Neither in philosophical speculation, nor in religious or moral sentiment," Bishop writes, "would any people in any age allow that a man should be deemed guilty unless his mind was so." 1 Bishop, supra, § 287. Bishop counsels vigilance against erosion of this principle:

The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the consciousness that where the mind is pure, he who differs in act from his neighbors does not offend.

 Id. § 289.

 Jerome Hall, in his treatise, expresses a similar view:

The distinctions concerning intention, recklessness and negligence . . . are warranted on ethical grounds. The relevant ethical principle expressed in terms of mens rea, that penal liability should be limited to voluntary (intentional or reckless) commission of harms forbidden by penal law, represents not only the perennial view of moral culpability, but also the plain man's morality. It is a necessary principle if punishment is to be distinguished from other sanctions.

 Jerome Hall, General Principles of Criminal Law 133-34 (2d ed. 1960). The leading current treatise is in accord. See 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 270 (1986) (A "basic premise" of the criminal law "is that conduct, to be criminal, must consist of something more than mere action . . . some sort of bad state of mind is required as well.").

 Perhaps the most important modern work on criminal culpability is H.L.A. Hart's Punishment and Responsibility (1968). This is a landmark collection of essays that vigorously defend the mens rea principle. Proceeding from the premise that

it is characteristic of our own and all advanced legal systems that the individual's liability to punishment, at any rate for serious crimes carrying severe penalties, is made by law to depend, among other things, on certain mental conditions,

 id. at 28, Hart seeks the philosophical source of the culpability requirement. He rejects Bentham's utilitarian justifications as inadequate. If deterrence were the only objective of the criminal law and sacrifice of the individual were not a concern, strict liability would be permissible since punishment of those "who act unintentionally or in some other normally excusing manner may have a utilitarian value in its effect on others." Id. at 20; see also id. at 42-43, 179. To the contrary, if strict liability is admitted, Hart says, it is done "with the sense that some other principle has been overridden." Id. at 20.

 Holmes' theory of "objective liability" also fails in Hart's view. Id. at 38. Holmes erroneously poses a choice between a system in which mental conditions are used only to find moral culpability and one in which mental conditions are not considered at all. Id. Hart finds no such dilemma. "There are independent reasons, apart from the question of moral guilt, why a legal system should require a voluntary act as a condition of responsibility." Id. Hart distinguishes between two "moral" questions. First is the question, for the consideration of the legislature, whether enforcement of a given law produces more good than evil. If good outweighs evil, then the law is morally permissible. Second is the question, for consideration at the judicial stage, whether the particular person accused should be excused on account of his or her mental condition because that person "could not have helped" doing the act and, therefore, punishment would be unjust. Id. at 39. Hart characterizes this mens rea principle as follows:

The need to inquire into the "inner facts" is dictated not by the moral principle that only the doing of an immoral act may be legally punished, but by the moral principle that no one should be punished who could not help doing what he did.

 Id. (emphasis in original).

 The mens rea principle, for Hart, flows from our society's commitment to individual choice. "[W]e look on excusing conditions as something that protects the individual against the claims of the rest of society." Id. at 44. The existence of the panoply of excuses and culpability requirements in the criminal law allows the individual to exercise choice with respect to violation of the law. Id. at 44-45. Hart summarizes his analysis as follows:

On this view excusing conditions are accepted as something that may conflict with the social utility of the law's threats; they are regarded as of moral importance because they provide for all individuals alike the satisfactions of a choosing system. . . . In this way the criminal law respects the claims of the individual as such, or at least as a choosing being, and distributes its coercive sanctions in a way that reflects this respect for the individual.

 Id. at 49 (emphasis in original); see also Andrew Ashworth, Principles of Criminal Law 128-29 (1991) (contrasting deterrence-based utilitarian theories with "liberal" theories, which "regard respect for the autonomy of each individual citizen as capable of overriding general calculations of social utility").

 Henry Hart's thoughtful analysis of the criminal law led him to a destination quite close to H.L.A. Hart's. For Henry Hart, it is not just the mens rea principle but the whole of the criminal law that reflects the primacy of individual freedom and the individual's relationship to the community as fundamental organizing principles of our society. He writes,

Man realizes his potentialities most significantly . . . by making himself a functioning and participating member of his community, contributing to as well as drawing from it.
What is crucial in this process is the enlargement of each individual's capacity for effectual and responsible decision. For it is only through personal, self-reliant participation, by trial and error, in the problems of existence, both personal and social, that the capacity to participate effectively can grow. Man learns wisdom in choosing by being confronted with choices and by being made aware that he must abide the consequences of his choice. . . .
Seen in this light, the criminal law has an obviously significant and, indeed, a fundamental role to play in the effort to create a good society. For it is the criminal law which defines the minimum conditions of man's responsibility to his fellows and holds him to that responsibility.

 Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 410 (1958).

 The conclusion that mens rea has a primacy in modern criminal law was central to the magisterial analysis of Professors Jerome Michael and Herbert Wechsler in their two-part work A Rationale of the Law of Homicide, 37 Colum. L. Rev. 701, 1261 (1937). This work and those already referred to were foundational in the approach taken by the American Law Institute's Model Penal Code (Official Draft and Rev. Comm. 1985) (the Code), for which Professor Wechsler was reporter. The Code was the basis of extensive state modifications of criminal laws. See Part II A 2 c, infra.

 b. Exceptions

 i. Public-Welfare Offenses

 Perhaps the most common exception to the mens rea principle has been in cases involving what are characterized as "public-welfare offenses." Criminal liability has been permitted to attach without regard to fault in instances in which the actor's conduct involves

minor violations of the liquor laws, the pure food laws, the anti-narcotics laws, motor vehicle and traffic regulations, sanitary, building and factory laws and the like.

 Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 78 (1933) [hereinafter Sayre, Public Welfare ]; see generally American Law Institute, Model Penal Code § 2.05 Comment at 284-90 & n.7 (Official Draft and Rev. Comm. 1985) (collecting cases, from nineteenth century through mid-1970s).

 Sayre dated the development of this welfare-exception doctrine to the middle of the nineteenth century. Emphasizing that he was speaking of "light" offenses, he explained it as follows:

The decisions permitting convictions of light police offenses without proof of a guilty mind came just at the time when the demands of an increasingly complex social order required additional regulation of an administrative character unrelated to questions of personal guilt; the movement also synchronized with the trend of the day away from nineteenth century individualism toward a new sense of the importance of collective interests.

  Sayre, Public Welfare, supra, at 67; see also Morissette v. United States, 342 U.S. 246, 253-60, 96 L. Ed. 288, 72 S. Ct. 240 (1952) (describing "a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent" and attributing trend in part to the industrial revolution); R. v. Woodrow, 15 M. & W. 404 (Exch. 1846) (conviction for selling adulterated tobacco upheld under statute silent as to mens rea requirement); R. v. Dixon, 3 M. & S. 12 (K.B. 1814) (conviction for selling adulterated bread upheld under statute silent as to mens rea requirement). Sayre cautioned against overstating the significance of this development. "Criminality is and always will be based upon a requisite state of mind as one of its prime factors." Sayre, Public Welfare, supra, at 56.

  Sayre was able to discern from the cases two principles identifying the contours of the public-welfare offense doctrine. Id. at 72. First, if punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then mens rea is probably required. Id. Second, if the penalty is light, involving a relatively small fine and not including imprisonment, then mens rea probably is not required. Id.; see also Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 148-51 (1962) (arguing that public-welfare offense doctrine should not include crimes permitting imprisonment since the "stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes"); 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 342-44 (1986) (if punishment is severe, strict liability is unlikely to have been intended by legislature).

  Justice Jackson once described the public-welfare offenses as, for practical purposes, imposing a negligence standard:

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 and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation.

  Morissette, 342 U.S. at 256.

  Other commentators have described and delimited this doctrine of strict liability on similar grounds. See, e.g., 1 Joel Prentiss Bishop, Bishop on Criminal Law § 206a (9th ed. 1923) (recognizing but minimizing limited exception to mens rea principle for public-welfare offenses); H.L.A. Hart, Punishment and Responsibility 32 (1968) (Public-welfare offenses "are usually punishable with a fine and are sometimes said by jurists who object to strict liability not to be criminal in any 'real' sense."); 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 340-41 (1986) ("Usually, but not always, the statutory crime-without-fault carries a relatively light penalty -- generally of the misdemeanor variety."); Glanville Williams, Criminal Law: The General Part 235 (2d ed. 1961) (Public-welfare offenses "presuppose a continuous activity, such as carrying on a business, so that (a) special skill and attention may reasonably be demanded, and (b) if the law is broken there will be a suspicion that it was a deliberate breach due to self-interest."); Anthony A. Cuomo, Mens Rea and Status Criminality, 40 S. Cal. L. Rev. 463, 521-22 (Public-welfare offenses are not crimes but rather are "regulatory measures" because of their light penalties and lack of stigma.).

  Given this modern development, anti-drug offenses might once have been characterized as public-welfare offenses, particularly as this country moved from a "freedom to use" model through some tax and medical models beginning in the 1910s. When, however, criminal penalties were markedly increased, particularly through such severe sentencing mechanisms as the Rockefeller laws in New York and those adopted in our current war on drugs that now include life sentences, see 21 U.S.C. § 960(b)(3) (maximum term of life imprisonment for narcotics importation in which death or serious injury results), and even capital punishment, see 21 U.S.C. § 848(e) (possible sentence of death for drug offenses in which killing results), the legal-constitutional situation changed radically. What once may have been a minor welfare offense, malum prohibitum, is now a major criminal offense, malum in se. Older cases that may have allowed conviction of narcotics offenses without proof of mens rea have no precedential value in this new setting.

  ii. Other Forms of Strict Liability

  Strict liability has been permitted in the criminal law in a number of other instances. See, e.g., Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 430 (1958) (statutory rape and bigamy); Anthony A. Cuomo, Mens Rea and Status Criminality, 40 S. Cal. L. Rev. 463, 517 (1967) (bigamy, statutory rape, misdemeanor-manslaughter and felony-murder); Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 141-42 (1962) (statutory rape, felony-murder and misdemeanor-manslaughter). The most widely recognized form of strict liability outside the realm of public-welfare offenses probably is the doctrine, embodied in statute and upheld by courts in a majority of states, that the perpetrator of the crime of "statutory rape," that is, intercourse with a person below the age at which the law deems consent possible, cannot defend on the grounds that he did not know of or was mistaken as to the victim's age. See, e.g., State v. Stiffler, 117 Idaho 405, 788 P.2d 220 (Idaho Sup. Ct. 1990); Commonwealth v. Knap, 412 Mass. 712, 592 N.E.2d 747 (Mass. Sup. Ct. 1992); People v. Cash, 419 Mich. 230, 351 N.W.2d 822 (Mich. Sup. Ct. 1984); see also Matthew T. Fricker & Kelly Gilchrist, Comment, United States v. Nofziger and the Revision of 18 U.S.C. § 207, 65 Notre Dame L. Rev. 803, 813-16 & nn.55-61 (1990) (history and development of statutory rape as strict liability offense).

  In defense of mens rea principles, a growing number of states have developed legislative or judge-made defenses applicable in statutory rape cases, usually requiring the defendant to prove a "reasonable" mistake of fact as to the victim's age. See, e.g., State v. Guest, 583 P.2d 836 (Alaska Sup. Ct. 1978) (judge-made defense of reasonable mistake as to age, in part on ground that statutory rape "may not appropriately be categorized as a public welfare offense"); Perez v. State, 111 N.M. 260, 803 P.2d 249 (N.M. Sup. Ct. 1990) (though strict liability is required to protect children under the age of thirteen, reasonable mistake-of-fact defense permitted, by judicial decision, if victim is between 13 and 16); State v. Elton, 680 P.2d 727 (Utah Sup. Ct. 1984) (in view of statutory provisions providing for mistake-of-fact defense and requiring mens rea for all crimes not deemed strict liability offenses by the legislature, government must prove defendant was aware of or was negligent as to the age of the victim and affirmative defense of mistake of fact must be permitted); State v. Dodd, 53 Wash. App. 178, 765 P.2d 1337 (Wash. Ct. App. 1989) (statutory defense of reasonable mistake as to age); see also American Law Institute, Model Penal Code § 213.6(1) (Official Draft and Rev. Comm. 1985) (reasonable mistake as to age is defense if child is ten or older). The California Supreme Court prepared the ground on which these exculpatory doctrines have flourished in People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (Cal. Sup. Ct. 1964) (ruling that reasonable mistake that victim is eighteen or more years old is defense to charge of statutory rape, on ground that intent requirement for serious crimes must be presumed in absence of legislative statement to contrary). But see People v. Olsen, 36 Cal. 3d 638, 685 P.2d 52, 205 Cal. Rptr. 492 (Cal. Sup. Ct. 1984) (refusing to permit defense, despite silence of statute, of reasonable mistake as to age to charge of lewd and lascivious conduct with child under age of fourteen in view of "strong public policy considerations" favoring protection of children under fourteen).

  The narrow "statutory rape exception" to the mens rea principle was debated, under a somewhat different and archaic law, in the famous English case of R. v. Prince, L.R. 2 Cr. Cas. Res. 154 (1875), reprinted in [1874-80] All E.R. Rep. 881. The defendant was convicted under a statute prohibiting the "unlawful" taking of an unmarried girl under the age of 16 out of the possession of her father. Prince complained of the absence of a requirement of knowledge as to the girl's age. The court upheld his conviction. One group of judges argued that, leaving aside the question of age, the act alone was not "illegal" but was "wrong in itself" and, therefore, the legislature had determined that the act "should be at the risk of the taker." Id. at 883-85 (Bramwell, B.). They insisted that the mens rea principle was preserved by requiring that the defendant know that he lacked the father's consent. The lone dissenter took the others to task for what he conceived to be abandonment of the mens rea principle. Id. at 887-95 (Brett, J.). He argued that there would have been no criminal offense had the facts been as defendant believed them to be and, therefore, the conviction could not stand. The maxim that "there can be no conviction for crime in England in the absence of a criminal mind or mens rea" required that a mistake-of-fact defense be recognized where, if the facts were as the defendant believed them to be, there would have been no crime at all. Id. at 895 (Brett, J.).

  The Prince case, viewed by criminal-law commentators as a landmark in the development of strict liability, was strongly protested by them. See, e.g., Glanville Williams, Criminal Law: The General Part 239-41 (2d ed. 1961) (to support Prince's conviction, one must believe that he would have committed "a moral wrong" had facts been as he believed them to be); see also Rupert Cross, Centenary Reflections on Prince's Case, 91 Law Q. Rev. 540 (1975) (critiquing the several opinions in Prince). Several state courts that have declined to recognize mistake-of-fact defenses in statutory rape cases have done so over vigorous dissents. See, e.g., People v. Olsen, 36 Cal. 3d 638, 685 P.2d 52, 59-61, 205 Cal. Rptr. 492 (Cal. Sup. Ct. 1984) (Grodin, J., concurring and dissenting) (conviction should not be permitted in the absence of fault except in narrow class of public-welfare offenses carrying light penalties and little stigma); State v. Stiffler, 117 Idaho 405, 788 P.2d 220, 227-29 (Idaho Sup. Ct. 1990) (Blistine, J., dissenting) ("Refusal to recognize a mistake of age defense to statutory rape . . . continues an archaic practice which is no longer in step with modern values or practical reality."); People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 830-31 (Mich. Sup. Ct. 1984) (Kavanagh, J., dissenting) (obviation of proof of mens rea in felony case is unprecedented). In State v. Guest, 583 P.2d 836 (Alaska Sup. Ct. 1978), the Alaska Supreme Court viewed expansion of strict liability as a threat to the principle "that consciousness of wrongdoing is an essential element of penal liability," id. at 837, and refused to permit more than the "narrow class" of public welfare regulations

caused primarily by the industrial revolution, out of which grew the necessity of imposing more stringent duties on those connected with particular industries, trades, properties, or activities that affect public health, safety or welfare.

  Id. (quoting Speidel v. State, 460 P.2d 77, 78 (Alaska Sup. Ct. 1969)).

  While commentators generally have accepted the doctrine of public-welfare offenses on the ground that it covers only a limited class of cases involving minimal or light punishments, they have not looked kindly upon the creation of further categories of strict liability crimes. See, e.g., Glanville Williams, Criminal Law: The General Part 241 (2d ed. 1961) ("Absolute criminal responsibility hits those who, even if they knew the law, would not be deterred."); Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 422-23, 430 (1958) ("It is submitted that there can be no moral justification for [strict liability], and that there is not, indeed, even a rational, amoral justification."); Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 150-51 (1962) ("No one should be sentenced to imprisonment or its equivalent without being afforded the opportunity to litigate the issue of mens rea. . . ."); Sayre, Public Welfare, supra, at 79 (danger exists that courts, following false analogy to public welfare offenses, will extend strict liability to cover unpopular crimes in order to secure easy convictions); see also American Law Institute, Model Penal Code § 213.1 Comment at 326 (Official Draft and Rev. Comm. 1985) (denial of defense in statutory rape cases based on mistake as to age "has excited the ire of commentators and the attention of penal law reformers").

  The denial of a mistake-of-law defense in some modern contexts has similarly been criticized as a form of strict liability. See Henry M. Hart, Jr., supra, at 413-14, 419 (1958) (The principle that ignorance of the law is no excuse "has been . . . much misunderstood and abused in relation to regulatory crimes, involving conduct which is not intrinsically wrongful."); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1395-96 (1986) (in era of complex regulatory schemes, presumption that everyone knows the law threatens to violate mens rea principle).

  Imposition of strict liability has been justified on the grounds that, in certain instances, the prosecution otherwise would have difficulty proving the requisite mental state. See 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 341 (1986); see also Sayre, Public Welfare, supra, at 74 (mistake-of-fact defense refused in statutory rape cases as means of ensuring "real protection" of young victims). H.L.A. Hart rejects this argument, stating,

At present we have in strict liability clear exceptions to the principle [of responsibility], but no very persuasive evidence that the sacrifice of principle is warranted here by the amount of dishonest evasion of conviction which would ensue if liability were not strict.

  H.L.A. Hart, Punishment and Responsibility 183 (1968). And, as one observer has explained, while heightened caution on the part of the individual actor can be achieved through a negligence standard, strict liability unnecessarily "establishes a standard which can only breed frustration and disrespect for the law . . . [by] imposing criminal sanctions irrespective of care." Anthony A. Cuomo, Mens Rea and Status Criminality, 40 S. Cal. L. Rev. 463, 518-19 (1967).

  It is important to note a critical distinction between mens rea exceptions such as those in statutory rape cases and such as the one we face in the instant cases. In the statutory rape cases without a mens rea exception there could be no conviction. In the cases distinguishing between knowledge of heroin and cocaine, the belief that cocaine rather than heroin was involved still leads to a most serious conviction. Moreover, the grading involved reflects a public policy making heroin the more serious crime. In effect, the punishment scheme tells potential drug dealers, "If the law cannot deter you from dealing in drugs, it seeks to induce you to at least eschew the more dangerous -- heroin; to induce the less dangerous conduct we will provide a reduced penalty."

  iii. Negligence

  Somewhere between absolute loyalty to the mens rea principle and strict liability lies culpability founded upon some form of negligence. As Herbert Packer has explained, negligence does not represent an abandonment of the mens rea principle but rather its extension to include blame for the absence of a state of mind that, according to societal norms, the actor should have had. Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 143-45 (1962); cf. Anthony A. Cuomo, Mens Rea and Status Criminality, 40 S. Cal. L. Rev. 463, 516 (1967) (negligence-based offenses are "non- mens rea offenses" but are not like public welfare and other strict liability crimes because the very issue to be decided is "whether, in fact, mens rea is lacking"). Most commentators have been accepting, even if not enthusiastic, about the role of negligence in the criminal law. Glanville Williams writes, "There is a half-way house between mens rea and strict responsibility which has not yet been properly utilised, and that is responsibility for negligence." Glanville Williams, Criminal Law: The General Part 262 (2d ed. 1961); see also 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 325-33 (1986) (describing widespread use of negligence in criminal law). Packer is in accord:

The idea of criminal responsibility based upon the actor's failure to act as carefully as he should affords an important and largely unutilized means for avoiding the tyranny of strict liability in the criminal law.

  Packer, supra, at 110.

  H.L.A. Hart provides a typically thoughtful justification for the criminal law being more willing to accept liability based upon ...

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