The U.S. Supreme Court and Strict Liability- Because of the importance of mens rea to our criminal justice system, courts apply a presumption against strict liability in such cases.

How is that reflected in the U.S. Supreme Court’s holding in Morissette v. United States?

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Presumption Against Strict Liability - Criminal statutes are often silent as to mens rea for some or all of their elements. But as discussed in our tutorials, courts will often imply “missing” mens rea terms into such statutes. This is particularly true in states following the Model Penal Code approach to mens rea.

But courts know that legislatures sometimes do intend to impose strict liability, so they are occasionally confronted with the need to figure out whether or not the omission of mens rea from a criminal statute indicates a legislative intention to impose strict liability.

Because of the importance of mens rea to our criminal justice system, courts apply a presumption against strict liability in such cases.

Let’s see how the U.S. Supreme Court dealt with this issue in an influential case involving a federal statute prohibiting the conversion of government property.

Morissette v. United States - - In Morissette v. United States, 342 U.S. 246 (1952), the defendant, a junk dealer, went onto an Air Force bombing range and took a number of spent bombing casings that had been lying around, exposed and rusting, for a number of years. He flattened them and sold them for a total of $84.
When questioned later, Morissette openly admitted his actions, saying that he didn’t intend to steal the casings but thought that they were abandoned.

Morissette was charged under a federal statute providing for fines and imprisonment of any person who: “embezzles, steals, purloins, or knowingly converts to his use or the use of another … any … thing of value of the United States or any department thereof ….”

Question - Of the following arguments, which do you think the defendant put forth?

(1) Theft requires proof of an intent to deprive another of their property – which could not be proven if the other party had abandoned the property.

(2) Because Congress omitted any mens rea for this element, strict liability should be applied.

Answer and Analysis - Answer (2) is incorrect; it is the argument that the prosecution put forth.

Answer (1) is correct. The issue was this: At common law, theft offenses required proof that the defendant had the intent to steal the property, and no such intent existed if the property had been abandoned. Theft, in other words, required proof of an intent to deprive another of their property – which could not be proven if the other party had abandoned the property.

In Morissette, the government conceded that it had to prove that the bomb casings belonged to the Air Force and had not been abandoned. But the government also argued that because Congress omitted any mens rea for this element, strict liability should be applied, so that Morissette would be guilty even if he sincerely believed the casings were abandoned.

For his part, Morissette argued that the common law mens rea (intent to deprive the government of its property) should be implied into the statute.

Implying a Common Law Mens Rea - The Supreme Court agreed with Morissette that the common law mens rea should be implied into the statute. Justice Jackson’s opinion discussed the traditional antipathy to strict liability (with certain exceptions we have discussed) and the modern trend toward imposing strict liability for public welfare offenses. The Court’s job was to determine Congress’s intent.

Because of our system’s strong commitment to the importance of mens rea, Jackson said that courts should err on the side of implying mens rea into a statute when the offense is derived from a traditional common law type of crime. Here, Jackson concluded, the statute was a clear descendant of common law larceny (a kind of theft offense).

Identifying Strict Liability Offenses - Based on Morissette and other cases, courts consider a number of factors in deciding whether a statute omitting mens rea should be construed as imposing strict liability, including the following:

(1) The crime is a public welfare offense and is malum prohibitum, not malum in se.

(2) The crime is not derived from the common law.

(3) The punishment for the crime is relatively light (usually a fine and/or imprisonment of less than a year).

The ultimate goal in all such cases is determining what the legislature intended, so the court may also consult the legislative history of the statute or other clues to the legislature's purpose.

Our next and final post on this topic reviews the Model Penal Code approach to strict liability and reviews the constitutionality of strict liability.

(In Morissette, the Court applied a presumption against strict liability in a case involving a statute derived from a traditional common law offense, but the Court did not base its conclusion on constitutional grounds; it was purely a matter of interpreting Congress's intent.)

The Law School Experience - These and related topics are covered in our tutorials on Criminal Law.

To explore some of our free materials, go to The Law School Experience.