Angela Harris

John Stinneford begins his article by asking the reader to imagine herself a UPS delivery truck driver in Tampa, Florida. He continues:

While on your way to make [a] delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. You do have the right to raise lack of knowledge as an affirmative defense – but the burden rests on you.

Is this legal? Probably. Why is the Supreme Court OK with that? Stinneford’s article explores this question.

For nearly ten years now, through all its three editions, Cynthia Lee and I have begun our criminal law casebook with an excerpt from H.L.A. Hart’s 1958 article, “The Aims of the Criminal Law.” In this article, which began life as a text written for his own first-year students, Hart raises the question, “What is a crime?” He points out that criminal convictions share with tort judgments and other civil sanctions all sorts of utilitarian functions. Having created confusion in the hearts of his students in classic law professor fashion, though, Hart mercifully and immediately dispels it. He quotes a 1953 article by one Professor Gardner: “It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.”

Hart then sticks the landing with a passage I invariably point out to my own first-year students:

If this is what a “criminal” penalty is, then, we can say readily enough what a “crime” is. It is not simply anything which a legislature chooses to call a “crime.” It is not simply antisocial conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a “criminal” penalty. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.

Buried in a footnote immediately preceding this declaration, however, Hart has this to say:

It is, of course, to be understood that Professor Gardner’s statement and the statements in the text do not accurately describe the significance of a criminal conviction under many modern regulatory and other statutes which penalize people who have had no awareness nor reason for awareness of wrong-doing. The central thesis of this paper, to be developed below, is that a sanction which ineradicably imports blame, both traditionally and in most of its current applications, is misused when it is thus applied to conduct which is not blameworthy.

With his article Punishment Without Culpability, John Stinneford returns to these paragraphs and updates Hart’s argument for the twenty-first century. There are topics he omits and arguments with which I disagree – as I’ll outline below — but the bottom line is that I love this article for its accessibility, its insight, and its provocative thesis. Reading it was like having a great faculty-lounge conversation.

For most of the article, Stinneford leads the reader on a trip through the weeds of substantive criminal law, beginning with those strict liability cases to which Hart referred in his footnote, and connecting them to many of the doctrines that make criminal law teachers feel uneasy and dissatisfied, if not downright outraged: the criminal-civil distinction, which permits the state to incarcerate indefinitely people charged with a “sexually violent offense”¹; the “voluntary act” doctrine, which permits the state to criminalize behavior stemming from addiction, poverty, and homelessness as long as the individual’s conduct contains some element of “choice”²; the Court’s “element” jurisprudence, permitting the state to place the burden of proof for any matter on a criminal defendant as long as it is articulated as a defense rather than as an element of the crime³; and the embarrassing (although entertaining) spectacle of the Court’s fight over Eighth Amendment proportionality jurisprudence, which has been resolved for the moment with an agreement to defer to state legislatures to impose whatever punishment they see fit on offenders to further any penological goal they like (thus permitting California to sentence a man to life in prison for shoplifting three golf clubs).⁴ Each of these doctrines, as Hart and Stinneford recognize, is in tension with the notion that the criminal law has a deep and ineradicable connection to moral blameworthiness. Together, they suggest the dismal conclusion that the Court’s commitment to culpability is largely fictional.

Stinneford might have added to this frustrating tour a couple of other stops: Montana v. Egelhoff,⁵ and Clark v. Arizona.⁶ In Egelhoff, the Supreme Court considered the constitutionality under the Due Process Clause of a Montana statute providing that voluntary intoxication “may not be taken into consideration in determining the existence of a mental state which is an element of a criminal offense.” The appellant, convicted of “purposely” or “knowingly” killing two people, argued that extreme alcohol intoxication made his commission of the killings physically impossible. (Over an hour after the killings, Egelhoff was discovered by police in a car along with the victims, yelling obscenities, and upon testing registered a blood alcohol content of .36, just below the level when coma and death ensue.) He argued that to prohibit him from arguing that he was unable, due to extreme intoxication, to form the mental states of purpose and knowledge was to relieve the prosecution of the burden to prove every element of the crime beyond a reasonable doubt, in violation of In re Winship,⁷ and Sandstrom v. Montana. ⁸ The Montana Supreme Court agreed. The Supreme Court, however, disagreed, holding that the legislature was simply choosing to return its law to that of an earlier historical period when voluntary intoxication was no defense to crime.

Clark v. Arizona reached a similar result. There, the appellant shot a police officer while apparently in the grip of delusions stemming from paranoid schizophrenia. He both pleaded insanity and argued that his mental illness prevented him from forming the mental states of “purpose” or “knowledge” required for first degree murder. In the state of Arizona, however, evidence of a defendant’s mental disorder short of insanity may not be introduced to negate the mens rea element of a crime. Clark’s insanity argument failed, and on certiorari the Court upheld Clark’s conviction of first degree murder and his sentence of 25 years to life, treating the issue as a matter of the admissibility of evidence and reasoning that “Arizona’s rule serves to preserve the State’s chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors.”

The Court’s reluctance to constitutionalize culpability has not been total, and Stinneford recognizes and discusses various attempts to keep the principle alive. One startling example is the Court’s recent string of decisions limiting the extent to which the state may punish youthful offenders, the latest of which is Miller v. Alabama. ⁹ But these cases sit uneasily with the deference to legislative prerogative when it comes to adult criminal responsibility.

Where does the Court’s awkward dance with the culpability principle originate, and how can it be resolved? Stinneford argues that the Supreme Court lost its way in the first half of the twentieth century, and that the culprit was what he calls “instrumentalism.” Before the Civil War, according to his account, substantive criminal law was comfortably rooted in history and tradition; courts had no problem finding substantive culpability principles in the Anglo-American common law and upholding them against legislative overreach. Something happened, though, when Oliver Wendell Holmes and Thomas Dewey began to detach law from morality. The philosophy of “instrumentalism” – the position that law is whatever its makers say it is – spoke to these skeptical forerunners of American Legal Realism, and through Holmes and others it eventually reached the Court. Stinneford argues that the culpability principle in criminal law has been one of instrumentalism’s victims. As a corollary, Stinneford argues that the Court’s culpability jurisprudence will not be coherent until the Court abandons instrumentalism and returns to tradition and morality as the foundation of substantive criminal law.

I can’t say I found this claim of Stinneford’s satisfying either as a matter of history or principle. As a historical argument, it doesn’t engage with more detailed and careful histories of American criminal law, such as Gerald Leonard’s¹⁰. Leonard argues that Holmes’ acceptance of criminal law as a purely utilitarian instrument came out of a longer tradition according to which criminal law serves the purpose of protecting public order without much concern for individual fault. Thus, for example, the legal-moral wrong doctrine in statutory rape, which prevents a defendant from arguing that he made a mistake about the victim’s age – a violation of the culpability principle that is far older than the American strict liability cases.

Stinneford’s article also raises more questions than it answers about what it might mean for this very divided Court to look for the culpability principle in tradition and morality. What if our traditions are misguided? How do we distinguish legitimate moral judgments from prejudice? For example, in Bowers v. Hardwick,¹¹ the Court was able to point to a long and robust tradition of criminalizing sodomy as a justification for upholding Michael Hardwick’s criminal conviction for going to bed with another man. Defending an equal protection approach to the case, Justice O’Connor asserted that “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Is it OK for the Court to rely on morality when it comes to culpability, but not for the legislature to do so when it comes to deciding what a crime is in the first place?

Or, let’s go back to Egelhoff and Clark. If Bowers shows that history and tradition is sometimes wrong, these cases raise the question of when “tradition” is supposed to begin, and against what baseline “morality” should be measured. As the majority pointed out in Egelhoff, before evidence of voluntary intoxication began to be admitted to negate mens rea, it was disallowed. Before the M’Naghten rule was introduced as a modern insanity standard, an offender was culpable unless he or she exhibited no more sensibility than a “wild beast.” Doesn’t the search for stable principles of morality lead us back either to older judicial pronouncements which might no longer represent social consensus, or to the Court’s own subjective musings – the problem that has led to the current standoff in Eighth Amendment proportionality jurisprudence?

It seems to me that resolving the problem of culpability in our morally pluralized (if not fully libertarian) twenty-first century will require something more, or other, than a return to the past. Stinneford’s argument thus raises the issue I often raise explicitly with my students: Does Hart’s confident declaration that the criminal law represents “a formal and solemn pronouncement of the moral condemnation of the community” make any sense at all today? Americans have not by any means given up moral judgments — after all, they make up 90 percent of reality TV. But is there any longer a coherent tradition from which a court could reliably decide what culpability requires? And even if so, how are the courts to deploy this tradition without fully constitutionalizing substantive defenses and defeating the values of federalism and separation of powers?

Punishment Without Culpability doesn’t answer these questions, but it raises them with clarity. Reading it drove me back into the cases I regularly teach with a new curiosity; it brought me back to Hart’s article; and it got me thinking anew about intellectual history, legal positivism, pragmatism, and that cynic and possible nihilist, Oliver Wendell Holmes. It raises the big question: What do we talk about when we talk about crimes? Stinneford’s article is candy for the brain. Read it, argue with it in your mind, and enjoy the buzz.

1. Kansas v. Hendricks, 117 S. Ct. 2072 (1997).
2. Powell v. Texas, 392 U.S. 514 (1968).
3. Patterson v. New York, 432 U.S. 197 (1977).
4. Ewing v. California, 538 U.S. 11 (2003).
5. Montana v. Egelhoff, 518 U.S. 37 (1996).
6. Clark v. Arizona, 548 U.S. 735 (2006).
7. In re Winship, 397 U.S. 358 (1970).
8. Sandstrom v. Montana, 442 U.S. 510 (1979).
9. Miller v. Alabama, 132 S. Ct. 2455 (2012).
10. Gerald Leonard, Towards a Legal History of American Criminal Law Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691 (2003).
11. Bowers v. Hardwick, 478 U.S. 186 (1986).