Notes & Questions (Morrisette v. United States)

Notes & Questions

1.    When interpreting statutes, the Supreme Court sometimes brings to bear certain presumptions that reflect broader judicial concerns or policy goals. Here, the Court notes that "where Congress borrows terms of art...[from common law], it presumably knows and adopts the [general meanings surrounding those borrowed words]." And, "absent contrary direction," Congress adopts them without departing from such "widely accepted definitions." Is this a fair presumption? What would a clear "contrary direction" look like? Was this case an example of bad statutory drafting? How would the court in Nations speak to this? 

2.    The Court also gestures at the aims of punishment in this case, when it says that requiring a mens rea component to a crime enables "deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." A crime without a mens rea element, the Court continues in a footnote, would make the ends of reformation and rehabilitation "seem illusory." What do you make of this rationale (that rehabilitation is the dominant objective of public prosecution)? By the same token, do you think strict liability crimes are mainly retributive? And would simply adding a mens rea element curb the overall retributive impulse of punishing for a crime? 

3.    The facts in Morissette revolve around a criminal conviction, but the court gestures toward a common form of strict liability in the civil context, "public welfare offenses." As the court describes: 

These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals....Many [public welfare] violations...result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted.

The case also cites a seminal 1933 article by Harvard Law professor Francis Sayre, listing some categories of public welfare offenses:

(1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community." 

Id. at n. 20 (citing Francis B. Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84 (1933)). 

What are some good examples of crimes that could be classified as "public welfare offenses"? Do you think these should be crimes that call for a mental element, or not? 

4.    Recall the State's burden in Nations of having to prove "actual" knowledge or how Conley overcomes the difficulty of proving an "intentional" state of mind by allowing an inference based on the surrounding circumstances. Strict liability would avoid those problems since there would be no need to prove intent. Consider this elided portion from the case, discussing how strict criminal liability in nineteenth-century English law was premised on lowering the burden of proof: 

In 1814,...one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K. B. 1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration....[The court justified its holding under the rationale that] the public inconvenience would be much greater, if in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so.” Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846)....In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L. R. 1 Q. B. 702 (1866)....After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted [that reinforced these holdings that no knowledge/intent was required]. 

Morissette, 342 U.S. at 253 n.12. 

How important is it for some crimes to entail a lighter prosectorial burden? What would be some benefits and costs for doing so? 

5.    The court in Morissette tells us there is a strong presumption disfavoring strict liability in criminal law. At the same time, recall that the Miles court effectively eliminates the need to show the defendant knew he was possessing the exact drug he is charged with possessing. How do you reconcile the Miles holding with the general statement in Morissette about courts disfavoring strict liability unless clearly specified? Is Morrisette still a correct description of the law, especially since the sentences for drug offenses are often longer than those for theft?

Strict liability sample problems

Problem 1: Donna parks her car and inserts enough money in the meter for one hour before going to her meeting. She checks her watch regularly and promptly leaves at the one-hour mark to feed the meter again. Unfortunately, her watch was running slow and she received a ticket. The offense is punishable by a $50 fine. If she was found guilty of this offense, what type of statute governed this offense? 

Problem 2: D runs a gas station convenience store, where D sells some groceries, including eggs. Last week, an officer purchased rotten eggs. Later D was fined $100 after being charged with the federal crime of selling adulterated eggs in interstate commerce. 

21 U.S.C. 1037: (1) No person shall buy, sell, or transport, … in any business in commerce any restricted eggs capable of use as human food, except as authorized by regulations … to assure that only eggs it for human food are used for such purpose.

Which of the following might work as a defense?

1. I did not know the eggs were rotten
2. I did not know the law prohibited selling rotten eggs
3. I gave the customer notice by displaying the expiration date
4. D does not have a defense

Problem 3: D was pulled over for speeding in California, after an officer clocked D driving 85mph in a 55mph zone. D explained that they were driving their feverish grandmother, who was laying down in the back seat, to the emergency room. The offense is punishable by a $1000 ticket. 

Is D guilty? Should D be prosecuted? This type of issue is covered under the "choice of evils" doctrine, which will cover in the Defenses chapter.