In unanimously throwing out the conviction of Arthur Andersen for obstructing justice, the U.S. Supreme Court has recognized there is an important difference between shredding and speeding.
The Court ruled that the conviction could not be sustained on the basis that some employees made an honest mistake by shredding documents that they did not know were relevant to a criminal investigation.
Speeding, on the other hand, is a very rare strict criminal liability offense; that is because the offender can be found guilty even if he did not know he was speeding.
The reasons for the distinction between these two offenses are clear. First, it is reasonable to assume all drivers know that speeding is prohibited and are expected to monitor their speed. In contrast, the shredding of documents is commonplace in the modern business world and perfectly legal in most circumstances. It would be unreasonable to expect employees shredding documents to read every word and call prosecutors to make sure the documents are not relevant to any pending investigation.
While the Supreme Court’s reversal of the trial court conviction of Arthur Andersen will not give the company’s 85,000 former employees their jobs back, the ruling will benefit all Americans if it helps rein in criminal laws that permit convictions without a guilty state of mind. In recent years, crimes that dispense with any culpable mental state have proliferated well beyond the traditional exception of speeding.
For example, a Missouri mother was convicted as being strictly criminally liable under a state law because her daughter had too many unexcused absences from school. Fortunately, the Missouri Supreme Court reversed the conviction earlier this year, ruling that the mother could not be sent to jail because she did not “knowingly or purposely” cause her daughter to miss school.
Indeed, our public schools have become ground zero in the assault on the traditional requirement of criminal intent. Under zero tolerance laws in many states, schools are required to expel students for honest mistakes. For example, a Texas student was recently banished to a juvenile justice boot camp and referred for criminal prosecution for unknowingly bringing a pocket knife to school that was left in a jacket from a weekend hunting trip. Fortunately, Texas legislators passed reforms to the state’s zero tolerance law in May that, if signed by the Governor, will allow school districts to consider whether a student was blameworthy.
In Maine, restaurant owners have been convicted under a state law making selling “short lobsters” a strict criminal liability offense. The Maine Supreme Court ruled that, even absent any evidence that the defendant was aware that the critters were too long, he could be convicted of this obscure crime.
Finally, localities across the nation are passing anti-smoking ordinances that impose strict criminal liability on owners of restaurants and bars when individuals light up on their premises. Under smoking ordinances in Austin, Texas and other cities, a business owner is liable even if he is unaware that someone is smoking on his premises. Thus, if a burglar breaks in during the middle of the night and smokes, the business owner may have committed a crime.Halting the strict criminal liability trend would represent a return to the very roots of our civilization. The requirement of a culpable mental state, expressed in Latin as mens rea, has been traced to Plato’s writings and became part of Roman law in the 12th century and English law in the 17th century.
In the 1952 case Morissette v. United States, the U.S. Supreme Court declared: “The contention that an injury can amount to a crime only when inflicted by intention is…..as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
While strict liability may be appropriate in some areas of civil law where only money is at stake, criminal law is different because it involves the state taking away a person’s liberty and branding them a criminal. In addition to imperiling due process and fundamental fairness, strict liability crimes fail to vindicate the deterrence function of criminal law. Even the stiffest penalties cannot deter honest mistakes.
In the Arthur Andersen case, the Supreme Court has reaffirmed the traditional legal principle that some element of intent is a prerequisite for conviction of almost all crimes. Now, legislatures and courts must act to make sure that all Americans – regardless of the color of their collar – enjoy the same protection from strict criminal liability that the Supreme Court has belatedly extended to Arthur Andersen employees. Hopefully it won’t be too late next time.
Marc A. Levin, Esq. is the director of the Center for Effective Justice at the Texas Public Policy Foundation, a non-profit research institute based in Austin (www.texaspolicy.com).