JURIST Guest Columnist Eric A. Johnson of University of Illinois School of Law discusses the recent Criminal Code Improvement Act …

In November 2015, the House Judiciary Committee voted to send “The Criminal Code Improvement Act of 2015” [PDF] to the House floor. The bill would, among other things, add to the federal criminal code a new section, 18 USC § 11, which would govern the interpretation of federal criminal statutes that are silent with respect to culpable mental states. The new statute would provide, specifically:

§ 11. Default state of mind proof requirement in Federal criminal cases. If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and
(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

Would this proposed statute “improve” the federal criminal code? No. Granted, many federal criminal statutes are silent or ambiguous with respect to mental states. And granted, the federal courts’ efforts to fill these statutory “gaps” with judge-made law have been somewhat uneven. Probably, then, the federal criminal code would be improved by the addition of a well-drafted general provision governing the assignment of mental states to offense-elements. But 18 USC § 11 isn’t well-drafted. It’s a disaster from start to finish. It’s worse than nothing.

For now, let’s focus on subsection (1), which would require the courts to add the mental state of “knowing” to any federal criminal statute that is silent with respect to mental states. The first difficulty with this section is that it does not say to which offense-elements the “knowing” mental state would be assigned. All criminal offenses have multiple offense-elements. And, as every first-year law student learns, it’s to these elements, not to the offense as a whole, that mental states attach.

To illustrate: Consider 18 USC § 922(g)(9), which prohibits persons who have been convicted of domestic violence crimes from possessing firearms. This statute requires the government to prove four elements:

• the defendant had been “convicted in any court of a misdemeanor crime of domestic violence”;
• the defendant possessed or “received” something;
• what he or she possessed was a “firearm” or “ammunition”; and
• the firearm or ammunition had “been shipped or transported in interstate or foreign commerce.”

This statute doesn’t mention any mental states, so the offense presumably would be subject to the mental-state requirement in subsection 11(1). But to which of these four elements would the “knowing” mental state attach? Requiring the government to prove that the defendant knew he possessed something and knew that what he possessed was a firearm (as the courts already do) is one thing. Requiring the government to prove, in addition, that the defendant knew he had been convicted of a domestic-violence misdemeanor is something else entirely. (In many parts of the country, juries would be only too happy to credit a defendant’s claim that he had “forgotten” about the conviction or its nature.) Finally, requiring the government to prove that the defendant knew the gun had traveled in interstate commerce would be absurd.

Would it be possible to construct a variant of subsection 11(1) that solved this dilemma—that said specifically to which of the elements the mental state attached? Of course. Lots of state criminal codes have default mental-state requirements, and all of them specify the kinds of offense-elements to which the requirement applies. In this respect the state codes were influenced by the Model Penal Code, which was published by the American Law Institute in 1962. The Model Penal Code says that an offense-element must be assigned a mental state if the element is “material”—and it says specifically what it means for an element to be material. Congress certainly could draw on these models in constructing a workable default mental-state provision.

Even better, Congress could draw on the work of the so-called “Brown Commission,” [PDF] which Congress created in 1967 to conduct a thorough review of the federal criminal law and to propose changes. The commission’s 1971 draft federal criminal code includes a section, § 302, that would govern the interpretation of statutes that are silent with respect to mental states. Unlike the Criminal Code Improvement Act, the Brown Commission’s draft provision carefully and exhaustively specifies the circumstances under which a mental state must be assigned to an offense element.

Subsection 11(1)’s failure to specify the elements to which the “knowing” mental state would attach is only part of the problem, however. The other part is the “knowing” mental state itself. The trouble with the “knowing” mental state is that it requires the actor to refrain from acting only if he is certain that the proscribed result will occur, or is certain that the critical circumstance exists. If applied to the element of non-consent in rape, for example, the “knowing” mental state would require the defendant to refrain from having sex with the victim only if he was certain that she did not consent; if he merely was aware of a high probability that she did not consent, he could go ahead and have sex with her. Nor is the element of non-consent unusual in this respect; a knowledge requirement is inappropriate for most offense-elements. Which is why the Model Penal Code, the Brown Commission’s draft code, and most state codes specify “recklessly,” rather than “knowingly,” as the default. The exception is Oregon, which specifies a default of mental state of criminal negligence.

To this argument, I’m guessing that the proponents of Criminal Code Improvement Act would respond in roughly this way: “It’s better to demand too much by way of culpability than too little, particularly given current rates of incarceration. Moreover, Congress remains free to specify a mental state less demanding than ‘knowingly’ for any particular offense. It need merely do so explicitly.” I could say a lot about this argument, but I’ll limit myself to a single narrow point: In the end, Subsection 11(1) would not actually make the federal criminal code more demanding.

Here is why. Remember, first, that Subsection 11(1) does not say to which elements the default mental state of “knowing” actually would attach. As a result, the federal courts almost certainly would interpret Subsection 11(1) as permitting them to decide for themselves—as they always have done before—which elements of any particular offense require mental states. After the enactment of Subsection 11(1), however, the court’s exercise of this discretion would be informed by the recognition that assignment of a mental state to an offense-element under Subsection 11(1) is an all-or-nothing proposition; if the court assigns a mental state at all, it must assign an extremely demanding one, namely, knowingly. Since the “knowingly” does not work well for most offense elements—non-consent in rape, for example—courts simply would decide not to assign any mental state at all to most offense-elements.

Is this prediction fanciful? No. When courts face the question whether to assign a mental state to a particular offense-element, they often justify their refusal to assign a mental state by (1) framing the question as whether the element requires, say, an “intentionally” or “knowingly” mental state; and (2) then explaining why these relatively demanding mental states aren’t suitable. This happened in Dean v. US [PDF], 556 US 568, 572 (2009), for example, where the Supreme Court framed the critical question as “whether [18 USC] § 924(c)(1)(A)(iii) contains a requirement that the defendant intend to discharge the firearm.” The Court had little difficulty in concluding that the answer to this question was no. This refusal to assign a mental state would have been harder to justify if the Court had framed the critical question as some lower courts had, namely, as whether the statute’s “discharge” element requires the assignment of some mental state—recklessly, negligently, etc.

In summary, the proposed 18 USC § 11(1) would not make the federal criminal code consistently more demanding. In the usual case, it would force the courts to choose between (1) demanding nothing by way of culpability and (2) demanding too much. They often would choose to require nothing.

Eric A. Johnson is a professor at the University of Illinois College of Law, where he teaches criminal law, criminal procedure, and evidence. His most recent article is Dynamic Incorporation of the General Part: Criminal Law’s Missing (Hyper)Link, 48 U.C. Davis L. Rev. 1831 (2015).

Suggested citation: Eric A. Johnson, Worse Than Nothing: The Criminal Code “Improvement” Act of 2015, JURIST – Academic Commentary, Feb. 10, 2016, http://jurist.org/academic/2016/02/eric-johnson-criminal-code.php