D. Vicarious Liability
Everyone agrees with the proposition that if a person commands, pays, or induces another to commit a crime on that person's behalf, the person should be treated as having committed the act.30 Thus, if a husband hires a man to kill his wife, the husband is also guilty of murder. But it is another matter entirely to hold one person criminally responsible for the unauthorized acts of another. "Vicarious liability," the legal doctrine under which a person may be held responsible for the criminal acts of another, was once "repugnant to every instinct of the criminal jurist."31 Alas, the modern trend in American criminal law is to embrace vicarious criminal liability.
Vicarious liability initially crept into regulations that were deemed necessary to control business enterprises. One of the key cases was United States v. Park (1975).32 John Park was the president of Acme Markets Inc., a large national food chain. When the Food and Drug Administration found unsanitary conditions at a warehouse in April 1970, it sent Park a letter demanding corrective action. Park referred the matter to Acme's vice president for legal affairs. When Park was informed that the regional vice president was investigating the situation and would take corrective action, Park thought that was the end of the matter. But when unsanitary warehouse conditions were found on a subsequent inspection, prosecutors indicted both Acme and Park for violations of the Federal Food, Drug and Cosmetic Act.
An appellate court overturned Park's conviction because it found that the trial court's legal instructions could have "left the jury with the erroneous impression that [Park] could be found guilty in the absence of 'wrongful action' on his part" and that proof of that element was constitutionally mandated by due process.33 The Supreme Court, however, reversed the appellate ruling. Chief Justice Warren Burger opined that the legislature could impose criminal liability on "those who voluntarily assume positions of authority in business enterprises" because such people have a duty "to devise whatever measures [are] necessary to ensure compliance" with regulations.34 Thus, under the rationale of Park, an honest executive can be branded a criminal if a low-level employee in a different city disobeys a supervisor's instructions and violates a regulation—even if the violation causes no harm whatsoever.35
In 1994, Edward Hanousek was employed as a roadmaster for a railroad company. In that capacity, Hanousek supervised a rock quarrying project near an Alaska river. During rock removal operations, a backhoe operator accidentally ruptured a pipeline—and that mistake led to an oil spill into the nearby river. Hanousek was prosecuted under the Clean Water Act even though he was off duty and at home when the accident occurred. The case prompted Justice Clarence Thomas to express alarm at the direction of the law: "I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations."36
Note that vicarious liability has not been confined to the commercial regulation context.37 Tina Bennis lost her car to the police because of the actions of her husband. The police found him in the vehicle with a prostitute.38 Pearlie Rucker was evicted from her apartment in a public housing complex because her daughter was involved with illicit drugs. To crack down on the drug trade, Congress enacted a law that was so strict that tenants could be evicted if one of their household members or guests used drugs. The eviction could proceed even if the drug activity took place outside the residence. Also under that federal law, it did not matter if the tenant was totally unaware of the drug activity.39
Further, in some jurisdictions, the drivers of vehicles are exposed to criminal liability if any passenger brings contraband—such as a marijuana joint—into an automobile even if there is no proof that the driver was aware of the contraband's existence.40
III. Conclusion
The federal criminal code has become so voluminous that it not only bewilders the average citizen, but also the most able attorney. Our courthouses have become so clogged that there is no longer adequate time for trials. And our penitentiaries are now operating well beyond their design capacity—many are simply overflowing with inmates. These developments evince a criminal law that is adrift. To get our federal system back "on track," Congress should take the following actions:
Discard the old maxim that "ignorance of the law is no excuse." Given the enormous body of law presently on the books, this doctrine no longer makes any sense.
Minimize the injustice of vaguely written rules by restoring traditional legal defenses such as diligence, good-faith, and actual knowledge.
Restore the rule of lenity for criminal cases by enacting a statute that will explicitly provide for the "strict construction" of federal criminal laws.
Abolish the doctrine of strict criminal liability as well as the doctrine of vicarious liability. Those theories of criminal liability are inconsistent with the Anglo-American tradition and have no place in a free society.
As noted earlier, these reform measures should be only the beginning of a fundamental reexamination of the role of the federal government, as well as the role of the criminal sanction, in American law.
1 For a detailed discussion of these issues, see Task Force on Federalization of Criminal Law, The Federalization of Criminal Law (Chicago: American Bar Association, 1998); John Baker, "Measuring the Explosive Growth of Federal Crime Legislation," (The Federalist Society for Law and Public Policy Studies (May 2004)); John Baker, "Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?" Rutgers Law Journal 16 (1985): 495; Brian Walsh, "Doing Violence to the Law: The Over-Federalization of Crime," Federal Sentencing Reporter 20 (June 2008): 295; Erik Luna, "The Overcriminalization Phenomenon," American University Law Review 54 (2005): 703.
2 Henry M. Hart, Jr., "The Aims of the Criminal Law," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 6.
3 United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971) (Stewart, J., dissenting).
4 See Timothy Lynch, "Ignorance of the Law: Sometimes a Valid Defense," Legal Times, April 4, 1994.
5 Hart, "The Aims of the Criminal Law," p. 19.
6 United States v. Wilson, 159 F.3d 280 (1998).
7 Ibid., p. 296 (Posner, J., dissenting).
8 Ibid. The Wilson prosecution was not a case of one prosecutor using poor judgment and abusing his power. See, for example, United States v. Emerson, 46 F.Supp. 2d 598 (1999).
9 See, generally, Ronald A. Cass, "Ignorance of the Law: A Maxim Reexamined," William and Mary Law Review 17 (1976): 671.
10 Connally v. General Construction Company, 269 U.S. 385, 393 (1926) (internal quotation marks omitted).
11 Papachristou v. City of Jacksonville, 405 U.S. 156, 162-163 (1972).
12 James Madison, "Federalist Paper 62," in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p. 381.
13 See Robert A. Anthony, "Unlegislated Compulsion: How Federal Agency Guidelines Threaten Your Liberty," Cato Institute Policy Analysis no. 312, August 11, 1998.
14 William L. Gardner and Adam H. Steinman, "'Knowing' Remains the Key Word," National Law Journal, September 2, 1991, p. 28.
15 Quoted in William P. Kucewicz, "Grime and Punishment," ECO (June 1993): 54.
16 Pennsylvania has protected its citizens from overzealous prosecutors with such a law for many years. See 1 Pa.C.S.A. 1208.
17 Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West Publishing Co., 1986), pp. 193–94.
18 Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4 (1952).
19 Utah v. Blue, 53 Pac. 978, 980 (1898).
20 Morissette v. United States, 342 U.S. 246, 251 (1952).
21 Richard G. Singer, "The Resurgence of Mens Rea: III—The Rise and Fall of Strict Criminal Liability," Boston College Law Review 30 (1989): 337. See also Special Report: Federal Erosion of Business Civil Liberties (Washington: Washington Legal Foundation, 2008).
22 Lambert v. California, 355 U.S. 225, 228 (1957).
23 Herbert Packer, "Mens Rea and the Supreme Court," Supreme Court Review (1962): 109. See also Jeffrey S. Parker, "The Economics of Mens Rea," Virginia Law Review 79 (1993): 741; Craig S. Lerner and Moin A. Yahya, "'Left Behind' After Sarbanes-Oxley," American Criminal Law Review 44 (2007): 1383.
24 Thorpe v. Florida, 377 So.2d 221 (1979).
25 Ibid., p. 223.
26 See United States v. Yirkovsky, 259 F.3d 704 (2001).
27 Ibid., pp. 705-706.
28 In my view, Congress should not stand by secure in the knowledge that such precedents exist. Justice Anthony Kennedy has made this point quite well: "The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional…. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws." Anthony M. Kennedy, "An Address to the American Bar Association Annual Meeting," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 193.
29 See Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West Publishing Co., 1986), p. 212.
30 Francis Bowes Sayre, "Criminal Responsibility for the Acts of Another," Harvard Law Review 43 (1930): 689, 690.
31 Ibid., p. 702.
32 United States v. Park, 421 U.S. 658 (1975). Although many state courts have followed the reasoning of the Park decision with respect to their own state constitutions, some courts have recoiled from the far-reaching implications of vicarious criminal liability. For example, the Pennsylvania Supreme Court has held that "a man's liberty cannot rest on so frail a reed as whether his employee will commit a mistake in judgment." Commonwealth v. Koczwara, 155 A.2d 825, 830 (1959). That Pennsylvania ruling, it must be emphasized, is an aberration. It is a remnant of the common law tradition that virtually every other jurisdiction views as passe´.
33 United States v. Park, 421 U.S. 658, 666 (1975).
34 Ibid., p. 672.
35 "[T]he willfulness or negligence of the actor [will] be imputed to him by virtue of his position of responsibility." United States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v. Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally Joseph G. Block and Nancy A. Voisin, "The Responsible Corporate Officer Doctrine—Can You Go to Jail for What You Don't Know?" Environmental Law (Fall 1992).
36 Hanousek v. United States, 528 U.S. 1102 (2000) (Thomas, J., dissenting from the denial of certiorari).
37 See Susan S. Kuo, "A Little Privacy, Please: Should We Punish Parents for Teenage Sex?" Kentucky Law Journal 89 (2000): 135.
38 Bennis v. Michigan, 516 U.S. 442 (1996).
39 Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).
40 See e.g. Maryland v. Smith, 823 A.2d 644, 678 (2003) ("[T]he knowledge of the contents of the vehicle can be imputed to the driver of the vehicle.").
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