There is perhaps no more famous legal truism than the phrase that ignorance of the law is no excuse. Yet, it is simply not always true. For example, in prosecutions under the federal law requiring disclosure of firearms in baggage checked on a commercial flight, the government must prove the violation was willful, which courts have defined as being aware of a law but nevertheless purposefully violating it.
Even more importantly, ignorance of a fact, as opposed to ignorance of the law, is a valid defense to nearly all criminal laws. For almost every crime other than speeding, it must be shown that the defendant knowingly engaged in the illegal conduct, or at least was reckless or grossly negligent in not being aware of his conduct. The U.S. Supreme Court has held that the Constitution requires such a culpable state of mind as a component of due process.
In the closing days of Texas’ legislative session, there are several important policy areas – from zero tolerance to taxes – where the Legislature is confronting this question of criminal intent
First, the Legislature is debating reforms to the 1995 Safe Schools Act. Under this “zero tolerance” law, otherwise exemplary Texas students have been expelled to juvenile justice boot camps and referred to prosecutors. Their heinous crimes? Unknowingly bringing a pocket knife to school that was left in a jacket from a weekend hunting trip, or taking Celebrex at lunch to relieve pain from a broken knee, are just two examples.
House Bill 603 by Rep. Rob Eissler clarifies that school officials may consider the intent of the student, if any, before using expulsion for such infractions. House Bill 603 passed the House and awaits action in the Senate.
Additionally, House Bill 1688 by Rep. Harold Dutton, which the House has also sent to the Senate, would rein in criminal prosecutions in such zero tolerance cases by repealing the state law automatically making these and other school disciplinary violations a crime, even if they do not run afoul of any state or local criminal law.
Legislators are also considering whether to require a “culpable mental state” before cities enforce their public nuisance laws against unwitting businesses. House Bill 1690 by Rep. Terry Keel comes in response to complaints that the City of Dallas has abused its public nuisance law, under which it may fine the property owner $500 for each day the nuisance exists and even place a lien on the property.
Although the law has historically been used to shut down brothels, Dallas is utilizing it to extract revenue from ordinary businesses located in high-crime areas. For example, a carwash in a low-income neighborhood was targeted, even though those running it had nothing to do with criminal activity.
One hotel owner testified before the House Civil Practices Committee that Dallas police officers told him his problems with the nuisance abatement law would “go away” if the hotel owner were to hire off-duty police officers, rather than a private security company, and suggested that his business contribute to an elected official’s “birthday fund.”
Keel’s bill would change the standard for conviction from “knowingly maintaining” a place where crime occurs to “knowingly tolerating criminal activity.” Second, it provides that police calls and other affirmative steps taken by property owners to combat crime cannot be used against them in court. Despite opposition from Dallas Mayor Laura Miller, the bill passed the House and is before the Senate.
Legislators are also considering whether to incarcerate directors and employees of businesses for deducting the controversial new payroll tax from an employee’s wages. House Bill 3 creates this backdoor income tax and makes its deduction a Class A misdemeanor, an offense punishable by a maximum of one year in jail.
There is no state of mind requirement specified so a court could conclude the Legislature intended to create a rare strict criminal liability offense. As a result, rank-and-file employees in payroll departments could be jailed for making an honest computation error. Also, if the tax forces businesses to cancel or slow planned increases in wages, a court may find that this constitutes a deduction. As this bill already contains civil fines, the criminal penalty is unnecessary.
Criminal law should only be invoked when someone’s conduct is truly blameworthy. One reason to use criminal law sparingly is that criminal convictions other than traffic offenses can impose a lifelong barrier to obtaining a job or housing. The Legislature should keep in mind the true meaning of crime and rely on civil fines, school discipline, and revocation of state licenses and permits to deter innocent mistakes.
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).