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 THE UNCONSTITUTIONALITY OF CRIMINAL
LIABILITY WITHOUT FAULT: AN
ARGUMENT FOR A CONSTITUTIONAL
DOCTRINE OF MENS REA
James I. Hippard,Sr.*
The freedom .. . of man, and liberty of acting according to his
own will, is grounded on his having reason, which is able to
instruct him in that law he is to govern himself by, and make
him know how far he is left to the freedom of his own will. John
Locke'
Historically our substantive criminal law . . . postulates a free
agent confronted with a choice between doing right and doing
wrong and choosing freely to do wrong. Roscoe Pound-
Crime does and should mean condemnation and no court should
have to pass that judgment unless it can declare that the de-
fendant's act was wrong. This is too fundamental to be com-
promised. Model Penal Code3

I. INTRODUCTION
A truck driver was criminally convicted of driving an overloaded truck
on the highways even though he had relied innocently and justifiably on
an erroneous weight certificate issued by a state licensed weight master.4 A
tavern operator was criminally convicted for permitting a minor to loiter
in his tavern despite good faith reliance on the minor's mature appearance
and falsified identification card that showed her to be an adult.5 An em-
ployee of a meat market made a short weight sale of meat. Although the
proprietor of the market did not participate in the transaction, was absent
from the premises when it occurred, and at no time had condoned or
encouraged short weight sales, he was convicted and sentenced to ninety
days in jail because of his employee's act.6 A motorist who negligently
but unintentionally caused a death in an automobile collision was found7
guilty of involuntary manslaughter and sentenced to three months in jail.
A young man had sexual intercourse with a consenting female whom he

4 Associate Professor of Law, University of Houston; B.S., B.A., University

of Texas at Austin; J.D., University of Houston; LL.M. Candidate, New York University.
1. J. LocKE, Two TnAmnss OF Govmuzr 327 (P. Laslett 1960).
2. Pound, Introduction to F. SARE, CAsES ON CamuNAL LAw (1927).
3. MODEL PENAL CODE 2.05, Comment 1 at 140 (Tent. Draft No. 4, 1955).
4. Commonwealth v. OlshefsK, 64 Pa. D. & C. 343 (Montour County Ct. 1948).
5. City of West Allis v. Megna, 26 Wis. 2d 545, 133 N.W.2d 252 (1965).
6. Ex parte Marley, 20 Cal. 2d 525, 175 P.2d 832 (1946).
7. Pehl v. State, 153 Tex. Crim. 553, 223 S.W.2d 238 (1949).

1039
1040 HOUSTON LAW REVIEW [Vol. 10:1039

reasonably and in good faith believed to be over the age of legal consent.
Because she was actually below the age of legal consent, the young man
was convicted of statutory rape and sent to prison.8 A man was convicted
and imprisoned for bigamy notwithstanding his good faith reliance on
legal advice that his divorce and subsequent marriage in another state
were legal. 9
These cases illustrate application of criminal liability without fault
and should upset, if not outrage, all of us because in each case the criminal
law was used to condemn and punish someone who had not acted in a
criminally blameworthy manner. A premise of Anglo-American criminal
law is that
[B]lameworthiness or moral guilt is necessarily based upon a
free mind voluntarily choosing evil rather than good; there can
be no criminality in the sense of moral shortcoming if there is no
freedom of choice or normality of will capable of exercising a
free choice. 10
In light of this premise, criminal liability without fault is a contradiction
in terms.
The imposition of criminal liability without proof of criminal blame-
worthiness not only flouts a basic premise of our criminal law, but violates
our constitutionally supported belief in the significance and dignity of
each individual and in his ability to choose his own destiny. In this country
free will is more than a matter for idle debate among philosophers, theo-
logians, scientists, and lawyers-it is historically and legally the very
essence of our criminal law and our Constitution." Strict liability crimes
are alien to our criminal law; they are unconstitutional anomalies that the
Supreme Court should have suppressed long ago. That they have been
permitted to grow and flourish in our midst is a breach of faith with the
American people on the part of Congress, the various state legislatures,
the state and federal courts, and most particularly the United States
Supreme Court.

8. Manning v. State, 43 Tex. Crim. 302, 65 S.W. 920 (1901).

9. Williams v. North Carolina, 325 U.S. 226 (1945).
10. Sayre, Mens Rea, 45 HAnv. L. REv. 974, 1004 (1932).
11. Mr. Justice Jackson stated,
The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a conse-
quent ability and duty of the normal individual to choose between good
and evil.
Morissette v. United States, 342 U.S. 246, 250 (1952).
Mr. Justice Cardozo observed that all law in western civilization Is guided by
a robust common sense which assumes the freedom of the will as a working hypothesis
in the solution of [legal] problems." Steward Mach. Co. v. Davis, 301 U.S. 548, 590
(1937).
Professor Henry M. Hart concluded, "In the tradition of Anglo-American law,
guilt of crime is personal. The main body of the criminal law, from the Constitution
on down, makes sense on no other assumption." Hart, The Aims of the Criminal Law,
23 LAw & CoNmwp. PTon. 401, 423 (1958).
19731 A CONSTITUTIONAL DOCTRINE OF MENS REA

H. NATuRAL LAw, FnEE Wr.r, Am TnE Docmawm oF Mr-s REA

The natural law and natural rights concepts of John Locke were the
foundation of American political thinkidng and constituted the philosophi-
cal basis for the American Revolution.'- Locke's premise was that individ-
uals originally existed in a state of nature and because of that existence
enjoyed certain fundamental natural law rights. Locke further theorized
that because it was difficult for individuals in the state of nature to pre-
vent interference with their natural rights, they instituted government
as a means of protecting these rights.' 3 When government came into being,
each individual's natural rights, which were still protected by natural law,
became a part of his newly gained civil status.1 4 Our Declaration of Inde-
pendence is, among other things, a declaration of the immutable natural
law rights of each individual:
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain un-
alienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. That to secure these rights, Governments
are instituted among Men, deriving their just powers from the
consent of the governed ....
Based on Locke's theories of natural law and natural rights, our
founding fathers believed that all men were by nature free and capable
of determining their self-development as well as the individual natural law
rights so fundamental as to require protection even against majorities.15
These beliefs are embodied in our Constitution:
The United States Constitution is essentially a natural-law docu-
ment setting out the fundamental authority of the people under
natural law and guaranteeing the natural rights of the citizens.
This Constitution indeed, carried a large part of the heritage of
natural law into the modem world .... Not only did it indelibly
associate that law with the idea of liberty but it also enshrined
the unique idea, so influential in modern times, that natural rights
could be the subject of legal guarantees and that these could be
adjudicated upon like any other rights and duties conferred or
imposed by secular law. Moreover, because they were embodied
in the Constitution, these rights were given a special priority

12. K. DomBnAE Dmxnwros iN A2rmucA POLrrcAL THOUeHT 13 (1969); D.

LLoYD,THE IDEA OF LAw 84 (1964).
13. K. DoLBEraB, DRECaroNs IN A ImucAN PoLrcICAL ThOucHr 11 (1969);
see Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). In Caldcr Mr. Justice Chase
acknowledged the contract or compact theory:
The people of the United States erected their constitutions, or forms of govern-
ment, to establish justice, to promote the general welfare, to secure the bless-
ings of liberty; and to protect their persons and property from violence. The
purposes for which men enter into society will determine the nature and terms
of the social compact ....
Id.
14. D. LLOYD, THE IDEA OF LAw 83-84 (1964).
15. K. DornEAR, DmEcroNs IN A&mucAN PoLrcAL THOUGHT 13-14 (1969).
 HOUSTON LAW REVIEW (Vol. 10: 103D

which enabled the courts to treat them as superior to and thus

prevailing over any legislation or other legal rule which conflicted
with them. Thus was created for the first time an actual machinery
whereby natural rights might be brought into the fabric of the
law and enjoy recognition and enforcement as legal rights.10
The extent of constitutional recognition of fundamental natural law
rights of the individual is revealed in the history of the ninth amendment.
Madison wanted a bill of rights included as a safeguard against govern-
mental usurpation. Hamilton regarded bills of rights as both unnecessary
and dangerous-unnecessary because under natural law all power not
expressly delegated to the government is retained by the people; danger-
ous because any list of rights necessarily must be incomplete and afford
government a colorable pretext to claim all powers not included in the list.17
Hamilton asked, "[Wihy declare that things shall not be done which there
is no power to do?"18 Although this danger argument did not dissuade
Madison, he nevertheless added the ninth amendment to guard against
Hamilton's fears. 19
The ninth amendment declares that fundamental natural law rights
belong to individuals in addition to those specified in the Constitution and
the Bill of Rights. The amendment and the gloss put on it by the history
of its incorporation make it abundantly clear that the government, state
or federal, must always prove its power over the individual: "In all dis-
putes between power and liberty [of the individual], power must always
be proved, but liberty proves itself; the one being founded on positive
law, and the other upon the law of nature."20 In Calder v. Bull 2I the
United States Supreme Court gave early recognition to this priroity:
I cannot subscribe to the omnipotence of a state Legislature, or
that it is absolute and without control; although its authority
should not be expressly restrained by the constitution, or fun-
damental law, of the state .... The purposes for which men enter
into society will determine the nature and terms of the social
compact; and as they are the foundation of the legislative power,
they will decide what are the proper objects of it.... There are
acts which the federal, or state, Legislature cannot do, without
exceeding their authority. There are certain vital principles in our
free Republican governments, which will determine and overrule
an apparent and flagrant abuse of legislative power; as to autho-
rize manifest injustice by positive law; or to take away the security

16. D. LLOYD, TnE IDEA OF LAW 84 (1964).

17. THE FEIm ALisr No. 84, at 559 (S. Mittell ed. 1938) (A. Hamilton).
18. Id.
19. 1 ANNALS OF CONG. 448-56 (1789) [1789-1824].
The ninth amendment states, "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people."
U.S. CONST. amend. IX.
20. L. LEDEa, LmmrTY A A oAtrraorY 127 (1968). Professor Leder quoted an
editorial from the New York Evening Post, May 25, 1747.
21. 3 U.S. (3 Dall.) 386 (1798).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA

for personal liberty, or private property, for the protection whereof

the government was established. An act of the Legislature (for I
cannot call it a law) contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legis-
tive authority.2
It is therefore clear from our political and legal history that neither Con-
gress nor state legislatures can abrogate fundamental natural rights of
individuals-police power must yield to any individual right determined
to be fundamental. In the words of Mr. Justice Goldberg,
In determining which rights are fundamental, judges are not left
at large to decide cases in light of their personal and private
notions. Rather, they must look to the "traditions and [collective]
conscience of our people" to determine whether a priciple is "so
rooted [there] ...as to be ranked as fundamental."
An examination of our traditions and the consciences of our people
xeveals that one of the most fundamental natural rights of an individual
is protection from criminal sanctions unless the state first proves that the
individual freely and with understanding chose to violate a command
of the law. For centuries this individual right has been protected in
Anglo-American criminal law by a fundamental principle most often identi-
fied by the rubric mens rea? (guilty mind). The precise meaning and scope
of mens rea has long been a source of confusion for legal scholars, probably
because judges have had to adjust its jury definition to fit the mental
element of particular crimes. Nevertheless, mens rea has always had a
'basic and universal meaning: If an adult person voluntarily and with
understanding chooses to violate or act with conscious indifference to a
command of the criminal law, then that person has acted in a blame-
worthy manner and is criminally responsible for his conduct. The tradi-
tional criminal defenses, insanity, infancy, justification, mistake, and duress
developed as part of the mens rea concept?.- These defenses are asserted
negations of some specific aspect of mens rea:
All the several pleas and excuses, which protect the committer
of a forbidden act from the punishment which is otherwise
annexed thereto, may be reduced to this single consideration, the
want or defect of will. An involuntary act, as it has no claim to
merit, so neither can it induce any guilt: the concurrence of the
will, when it has its choice either to do or to avoid the fact in
question, being the only thing that renders human action either

22. Id. at 388 (emphasis added).

23. Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concur-
xing), quoting Snyder v. Massachusetts 291 U.S. 97, 105 (1934).
24. The term maens rea comes from the Latin phrase actus non facit reum ni
mens sit rea, which means that an act does not make one guilty unless the mind is
guilty. Mens rea is lmown by a variety of other terms such as culpability, sclenter,
intent, general intent, blameworthiness, and malice aforethought.
25. Sayre, Mens Rea, 45 HRnv. L. REv. 974, 1004-16 (1932).
 HOUSTON LAW REVIEW [Vol. 10:1039

praiseworthy or culpable. Indeed, to make a complete crime

cognizable by human laws, there must be both a will and an act.2"
Fundamental natural law rights of the individual achieved formal legal
recognition through the adoption of our Constitution. One such right,
firmly rooted in our society, was to have the state establish mens rea
before it could convict and condemn an individual as a criminal. Conse-
quently, our courts should have vigorously rejected the various strict
liability crimes as they began to develop in our law, but sad to say such
has not generally proved to be the case.
III. THE UTrrAuAN ATrAcK ON MENs REA: HEuN
THE DEVELOPMENT OF STRCT LiAnrr CRimEs
The appearance and development of criminal liability without fault
can be attributed to the influence of utilitarianism, which in the nineteenth
century began shifting emphasis in this country from the protection of
individual rights to the protection of public and social interests.2 7 Oliver
Wendell Holmes best summarized the utilitarian creed: "Public policy
sacrifices the individual to the general good... and justice to the individ-
ual is rightly outweighed by the larger interests on the other side of the
scales."28 Our history, our traditions, and above all, our Constitution demand
of Congress, the various state legislatures, and the judiciary a vigilant
concern for the rights of the individual. Nevertheless, the superficial attrac-
tiveness of the utilitarian call for laws that achieve the greatest good for
the greatest number has eroded that concern, an erosion marked by will-
ingness of legislative bodies and courts to ignore the fundamental and
constitutional right of each of us to be judged in the criminal law on the
basis of personal responsibility for our acts. Utilitarian disregard for the
individual can be seen in the tendency of courts and legislatures to reject,
or at least moderate, the attitude that "it is far worse to convict an inno-
cent man than to let a guilty man go free."29 A more common attitude
today seems to be that "it is about as bad to convict an innocent man as

26. 4 W. Bz.cxs'oHE, Co mirrAlrus *20-21.

27. Sayre, Public Welfare Offenses, 33 COLUm. L. REV. 55, 67 (1933); Com-
ment, Liability Without Fault: Logic and Potential of a Developing Concept, 1970
Wis. L. REV. 1201, 1203-04.
28. 0. W. HoLMES, THE Con&tON LAW 48 (1881).
29. Mr. Justice Harlan said,
I view the requirement of proof beyond a reasonable doubt in a criminal
case as bottomed on a fundamental value determination of our society that
it is far worse to convict an innocent man than to let a guilty man go free.
In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA 1045

it is to let a guilty man go free."2 0

A. Strict Liability Crimes

As a result of the utilitarian influences described above, the offenses
of bigamy and statutory rape are strict liability crimes in most states.31
Strict liability crimes involving various categories of fraud have been
enacted by several states.m The generally applied felony-murder and misde-
meanor-manslaughter rules are applications of strict criminal liability. Near-
ly all states have involuntary manslaughter crimes wherein criminal intent
to cause harm is not an element of the crime.
Probably the most significant reason for the development and prolifera-
tion of strict liability crimes has been utilitarian willingness to use criminal
sanctions for the enforcement of public welfare regulations, even at the
expense of innocent individuals. These so-called public welfare offensesm
began appearing around the middle of the nineteenth century. They usually
are thought of as being limited to mala prohibita crimes such as traffic
offenses and those involving the sale of intoxicating liquor, narcotics, and
impure food or drugs.3s Actually, however, public welfare offenses form
a catchall category for "any crime construed to dispense with mens rea21
that encompasses an ever growing number and variety of strict liability
crimesO6
Those who defend the rejection of mens rea by the so-called public
welfare offenses offer the somewhat ludicrous jurstification that these
strict liability laws are merely regulatory measures, and not really crimes.
Hanging a "cat" sign on a skunk won't change the smell, and telling a
person he is being administratively regulated will not change the fact that
he is being convicted as a criminal, stigmatized as a criminal, fined as a
criminal, and sometimes incarcerated as a criminal.

30. This emphasis on conviction of the guilty explains not only the growing
number of strict liability crimes that erode mens rea, but also the more subtle wear
caused by transferring in a substantial number of jurisdictions the burden of persua-
sion so that defendants are required to prove a claim of insanity by a preponderance
of the evidence. See also Fletcher, Two Kinds of Legal Rules: A Comparative Study
of Burden-of-Persuasion Practices in Criminal Cases, 77 YAXLE L.J. 880, 929 (1968).
The defense of insanity inferentially rebuts the mens rea clement of the states case.
If mens rea is an essential element of all crime, the state should have the burden of
roving it beyond a reasonable doubt; there is neither logic nor justice in shifting
hat burden of proof to a defendant. It is the state that is supposed to justify use
of the criminal sanction before it deprives a citizen of his good name, his property,
and perhaps his freedom. Id. at 935.
31. Packer, Mens Rea and the Supreme Court, 1962 Surnnf. Courr Rnv. 107,
140 ihereinafter cited as Packer].
32. J. HAi, GENmAL PInCIPLES oF C mAL LAw 326 n.3 (2d ed. 1960).
33. See generally Sayre, Public Welfare Offenses, 33 COLUm. L. REv. 55 (1933).
This article is the classic article on public welfare offenses.
34. Id. at 72-73, 84-88.
35. Packer, supra note 31, at 146.
36. For an indication of the range of strict liabilities imposed under existing
law refer to MoDEL PENAL CODE 2.05, Comment 2 at 141 (Tent. Draft No. 4, 1955).
1046 HOUSTON LAW REVIEW [Vol. 10: 1039

B. The Supreme Court's Role in the Growth of Strict Liability Crimes

The Supreme Court's treatment of the mens rea question has been
incredible and deplorable.37 In 1910 the Court had its first opportunity
to recognize the constitutional stature of mens rea, and thus the unconsti-
tutionality of criminal liability without fault, in Shevlin-Carpenter Co. v.
Minnesota.38 Defendant asserted in effect that a legislature did not have
the constitutional power to enact a strict criminal liability statute. The
Court, in dictum, responded by stating that "in the prohibition or pun-
ishment of particular acts it may be provided [by the legislature] that
he who shall do them shall do them at his peril and will not be heard
to plead in defense good faith or ignorance." 3 Had the Court made
even the most cursory examination of our political, legal, and consti-
tutional history, it would have insisted that mens rea is an essential
element of all crime and a fundamental natural law right of the individual
entitled to constitutional protection. 40 This decision has been aptly
described as "an example of constitutional adjudication at its worst."41
Twelve years after Shevlin, the Court had an opportunity to undo
the damage in United States v. Balint.42 In Balint the Government was
seeking to enforce a federal criminal statute that allegedly imposed strict
liability for the sale of narcotics. The Government contended it did not
have to prove defendants knew they were selling narcotics. Defendants
responded that it was a violation of due process to punish a person for an
act in violation of a criminal statute when he was ignorant of the facts that
make his act a crime. The Court, in an opinion by Mr. Chief Justice Taft,
acknowledged the general common law rule that scienter was a necessary
element in the indictment and proof of every crime, but instead of giving
perhaps the most important constitutional issue in our criminal jurispru-
dence the careful analysis and consideration it deserved, the Court sum-
marily rejected the constitutional statute of mens rea on no more strength
than the flimsy, ill-considered, and unexplained dictum in Shevlin.43 The
Court further asserted that it was simply a matter of a legislature using its
police power to achieve social betterment." Thus, by a unique bootstrap

37, Professor Henry M. Hart said, "From beginning to end, there is scarcely a
single opinion by any member of the Court which confronts the question in a fashion
which deserves intellectual respect." Hart, The Aims of the Criminal Law, 23 LAw &
CorNrmv . Po3. 401, 431 (1958).
38. 218 U.S. 57 (1910).
39. Id. at 70.
40. For an exploration of the constitutional bases of the mens rea doctrine refer
to discussion at notes 87-107 infra.
41. Packer, supranote 31, at 111.
42. 258 U.S. 250 (1922).
43. Id. at 252; see United States v. Behrman, 258 U.S. 280 (1922). In Behrman,
decided the same day as Balint, a doctor's good faith belief that he was comporting
with professional medical standards in dispensing drugs to a patient was held irrole-
vant on the strength of Balint. Id. at 288.
44. 258 U.S. at 252.
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA 104T

process, the Court in 1922 conceded to legislatures the power to make

criminals of innocent citizens as a matter of public protection and con-
venience. Messrs. Jefferson, Madison, Hamilton, et al would have been
indeed astonished to see what had happened to individual liberty in 130
years.
By 1943, aided by the Sheulin-Balint farce, strict criminal liability was
spreading and had managed to ensnare one Ddtterweich, the president
of a wholesale pharmaceutical firm.4 Employees of the firm bad mistakenly
caused some misbranded and adulterated drugs to be shipped in inter-
state commerce, a violation of federal criminal law. Dotterweich, who had
nothing to do with the matter personally, was tried, convicted and fined
as a criminal and given a sixty-day probated jail term simply because he
was the chief executive officer of the company. In Dotterweich the Supreme
Court rejected defendant's plea for the constitutional protection that
should have been his perfunctory due.40 To add insult to injury, Mr. Justice
Frankfurter, writing for the majority, summarily disposed of defendant's
fundamental mens rea claim in only sixty-seven words and managed a
polite bow to utilitarianism along the way:
The prosecution to which Dotterweich was subjected is based on
a now familiar type of legislation whereby penalties serve as
effective means of regulation. Such legislation dispenses with the
conventional requirement for criminal conduct-awareness of some
wrongdoing. In the interest of the larger good it puts the burden
of acting at hazard upon a person otherwise innocent but standing
in responsible relation to a public danger.47
Justice Frankfurter's prime authority was that masterpiece of constitutional
erudition, Balint.
Hope for recognition of the individual's constitutional right to mens
rea protection was rekindled by dictum in Morissette v. United States.43
Mr. Justice Jackson, writing for a unanimous Court, asserted a "universal
and persistent... belief in freedom of the human will and a consequent
ability and duty of the normal individual to choose between good and
evil."49 He also asserted the "general rule of law and the dictate of
natural iustice that to constitute guilt there must be not only a wrongful
act, but a criminal intention." 0 These are the very considerations that
should have led the Court in Shevlin, Balint, and Dotterweich to articulate
and follow a constitutional doctrine of mens rea, but unfortunately the

45. 320 U.S. 277 (1943).

46. For an exploration of the constitutional bases of the mens rea doctrine refer
to discussion at notes 87-107 infra.
47. 320 U.S. at 280-81, citing United States v. Balint, 258 U.S. 250 (1922).
48. 342 U.S. 246 (1952).
49. Id. at 250.
50. Id. at 274 (emphasis added), quoting People v. Flack, 125 N.Y. 324, 28
N.E. 267, 270 (1891).
 HOUSTON LAW REVIEW [Vol. 10: 1039

Court again in Morissette rejected an opportunity to correct the grievous

error first promulgated in Shevlin. In Morissette defendant was charged
with theft of rusty old bomb casings he found on a government reserva-
tion. The trial court, believing the criminal statute in question to impose
strict liability, rejected defendant's defense that he lacked criminal intent
because he thought the casings were abandoned. The Supreme Court re-
versed and remanded saying mens rea was presumptively implied in crim-
inal statutes that were codifications of common law crimes (mala in se
crimes). Distinguishing Balint by noting that it dealt with the so-called
public welfare offenses (mala prohibita crimes), Mr. Justice Jackson gave
Balint "approval and adherence for the circumstances to which it was
there applied."51 This treatment of Balint created much confusion,52 but
at least Morissette marked a turning point in judicial attitude toward
mens rea.
In 1967 the Court took a giant step closer to a general constitutional
doctrine of mens rea in Lambert v. California.5 3 A Los Angeles municipal
ordinance made it a misdemeanor, punishable by fine or imprisonment,
for a convicted felon to stay in Los Angeles more than five days without
registering with the Chief of Police. Miss Lambert was convicted after not
having been permitted to testify that she did not know of a duty to register,
i.e., she was not permitted to give evidence regarding her lack of criminal
blameworthiness. The Supreme Court reversed and remanded, holding
that a person could not be punished for a crime of omission if that person
did not know his duty, and the state had taken no reasonable steps to
inform him of his duty to act and of the criminal penalty for failure to
do so.
Mr. Justice Douglas, writing for a majority of five, justified the deci-
sion in language that can only be described as asserting a constitutional
mens rea doctrine, albeit limited to crimes of omission:
The rule that "ignorance of the law will not excuse"5 ... is deep
in our law, as is the principle that of all the powers of local gov-
ernment, the police power is "one of the least limitable." . . .
On the other hand, due process places some limits on its exercise.
Engrained in our concept of due process is the requirement of
notice. Notice is sometimes essential so that the citizen has the
chance to defend charges.... As Holmes wrote in The Common
Law, "A law which punished conduct which would not be blame-
worthy in the average member of the community would be too

51. 342 U.S. at 260.

52. For a discussion of the confusion created by Morissette refer to Packer,
supra note 31, at 120-21.
53. 355 U.S. 225 (1957).
54. Id. at 228, quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68
(1910).
55. 355 U.S. at 228, quoting District of Columbia v. Brooke, 214 U.S. 138, 149
(1909).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA 1049

severe for that community to bear." . . . Its severity lies in the

absence of an opportunity either to avoid the consequences of
the law or to defend any prosecution brought under it."7
The mystery of the case is the majority's pointed refusal to include acts
of commission within the rule asserted for acts of omission.58
The Court's continuing vacillation, ambivalence, and indecision regard-
ing a constitutional mens rea doctrine was next demonstrated in Smith v.
California.59 Smith held unconstitutional a Los Angeles ordinance that
imposed absolute criminal liability on booksellers who bad obscene books
in their shops. The emphasis of the decision was on the importance of
mens rea in free speech cases, but Mr. Justice Brennan, writing for the
majority, made a significant if confusing comment about mens rea generally:
"The existence of a mens rea is the rule of, rather than the excep-
tion to, the principles of Anglo-American criminal jurisprudence.
... Still, it is doubtless competent for the States to create strict
criminal liabilities by defining criminal offenses without any ele-
ment of scienter-though even where no freedom-of-expression
question is involved, there is precedent in this Court that this
power is not without limitations.60
In other words, "Mens rea is an important requirement, but it is not a
constitutional requirement, except sometimes.""1
In 1962 the Court managed to further confuse its position on mens
xea in Robinson v. California.6 2
The constitutionality of an involuntary
status crime was at issue-statutory criminal blame was imposed for being
involuntarily and irresistibly addicted to the use of narcotics. The mens
tea issue in the case was obvious. The statute was a legislative attempt
to impose criminal sanctions on individuals because of a physiological
condition over which they had no personal control. The Court, however,
did not respond to the obvious. Instead, in an opinion by Mr. Justice Stew-
art, the Court declared the statute to be an infliction of cruel and unusual
punishment in violation of the eighth and fourteenth amendments.(a
It was inevitable that lawyers would seek to apply the reasoning of
Robinson to other arguably irresistible compulsions, and in 1968 its appli-
cability to chronic alcoholism was raised in Powell v. Texas" In Powcell
defendant was "charged with a crime composed of two elements-being
intoxicated and being found in a public place while in that condition.",'

56. 355 U.S. at 229, quoting 0. NV. Horfms, Tn CommoN LAw 50 (1881).
57. 355 U.S. at 229.
58. In his dissent, Mr. Justice Frankfurter assumed that the majority was asserting
a constitutional doctrine of mens rea as to crimes of omission. Id. at 231.
59. 361 U.S. 147 (1959).
60. Id. at 150, quoting Dennis v. United States, 341 U.S. 494, 500 (1951).
61. Packer, supra note 31, at 107.
62. 370 U.S. 660 (1962).
63. Id. at 666-67.
64. 392 U.S. 514 (1968).
65. Id. at 567 (Fortas, J., dissenting).
1050 HOUSTON LAW REVIEW [Vol. 10:1039

The Court upheld defendant's conviction because five of the justices

decided the trial record failed to establish that he was unable to avoid
being drunk in a public place. 6 Had the facts been more convincing to
Mr. Justice White, 67 the Court would have held that it would be cruel
and unusual under the eighth amendment to punish a person for condi-
tions or actions necessarily and uncontrollably resulting from an irresistible
compulsion. Mr. Justice Black, in opposing such a holding, correctly ana-
lyzed its much broader basic premise: "[Ilt is cruel and unusual to punish
a person who is not morally blameworthy." 8 It is only a small step from
Mr. Justice Black's analysis to an assertion of a general constitutional
doctrine of mens rea based on fifth and fourteenth amendment due process.
Mr. Justice Marshall seemed to have recognized this in his comment that
"[u]ltimately . . . the most troubling aspects of [Powell], were Robinson
to be extended to meet it, would be the scope and content of what could
only be a constitutional doctrine of criminal responsibility." 0 Justice Mar-
shall goes on to oppose a general constitutional doctrine of mens rea
because
[t]he doctrines of actus reus, mens rea, insanity, mistake, justifica-
tion, and duress have historically provided the tools for a con-
stantly shifting adjustment of the tension between the evolving
aims of the criminal law and changing religious, moral, philo-
sophical, and medical views of the nature of man. This process
of adjustment
70 has always been thought to be the province of the
States.
The fallacy in Mr. Justice Marshall's argument is that the states' role as
laboratories for social experimentation does not give them the power to
experiment with the fundamental personal rights of citizens. The right to
mens rea protection against criminal convictions without a finding of
blameworthiness is one of the most fundamental of all our personal rights.
The latest Supreme Court case to involve the constitutional aspects
of mens rea, although unacknowledged as such, is Papachristouv. City of
Jacksonville.71 In a unanimous decision, the Court held a typical vagrancy

66. Mr. Justice Marshall, writing for Mr. Chief Justice Warren and Justices
Black
,since and Harlan,wasconcluded that Powell did not fall within the Robinson holding
appellant convicted, not for being a chronic alcoholic, but for being in
public while drunk on a particular occasion." Id. at 532. Mr. Justice White similarly
concluded that appellant's conviction "was for the different crime of being drunk
in a public place." Id. at 549 (White, ,., concurring).
67. Mr. Justice White stated, 'If it cannot be a crime to have an irresistible
compulsion to use narcotics, . . . I do not see how it can constitutionally be a crime
to yield to such a compulsion." Id. at 548. Mr. Justice White did not join the four
dissenters, Justices Fortas, Douglas, Brennan, and Stewart, because he did not find
the record to have established defendant's inability to avoid being drunk in public.
Id. at 554.
68. Id. at 544.
69. Id. at 534.
70. Id. at 536.
71. 92 S. Ct. 839 (1972).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA

ordinance to be unconstitutionally void for vagueness because, among

other reasons, it failed to give a person of ordinary intelligence fair notice
that his contemplated conduct was forbidden.' This is simply a consti-
tutional due process application of the mens rea principle "that no man
shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed."'
In summary, Lambert, Smith, Robinson, Powell, and Papachristou all
have given constitutional dignity to some aspect of the basic mens rea
premise that criminal sanctions can be applied only to the criminally
blameworthy. The Court seems to be maling a groping, erratic, piece-
meal movement toward eventual recognition of a general constitutional
-doctrine of mens rea, which will mean the demise of criminal liability
-without fault. Unfortunately, the Court's slowness to recognize its obliga-
tions in this area of constitutional law has meant support for a great,
irreparable, and ever growing denial of human liberty.

C. Resistance to the Development of Criminal Liabilitj Without Fault

Despite the support given to strict criminal liability by the Supreme
Court, some state courts have always regarded mens rea as a fundamental
requirement, essential to the security of individual freedom, and they
have strongly resisted efforts to eliminate it. Courts in California,74 Dela-
ware,75 New Mexico,76 New York77 Ohio,78 Texas," Washington,"1 and
West Virginia,"' for example, have refused to succumb to the utilitarian
mandate of strict criminal liability. The Supreme Court of California has
stated, "[1]t is not conduct alone but conduct accompanied by certain
specific mental states which concerns, or should concern the [criminal]

72. Id. at 843.

73. United States v. Harriss, 347 U.S. 612, 617 (1954).
74. People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 675-76, 39 Cal. Rptr.
.361, 363-64 (1964) (statutory rape); People v. Vogel, 46 Cal. 24d 798, 299 P.2d 850,
S52-53 (1956) (bigamy).
75. Long v. State, 44 Del. 262, 65 A.2d 489, 497-98 (1949) (mistake of la,
lield to be an adequate defense in a bigamy prosecution).
76. State v. Prince, 52 N.M. 15, 189 P.2d 993 995 (1948) (mistake of fact
held to apply to statute that made embezzlement a strict liability crime).
77. People v. Estreich, 272 App. Div. 698, 75 N.Y.S.2d 267 aft'd 297 N.Y.
-910, 79 N.E.2d 742 (1948) (court held statute imposing strict liabifity fo receipt of
stolen goods to be unconstitutional).
78. State v. Williams, 94 Ohio App. 249, 115 N.E.2d 36, 41 (1952) (mistake of
fact exonerated truck driver hauling load of undersized fish in violation of a strict
liability criminal statute).
79. Wilson v. State, 122 Te-x. Crim. 478, 56 S.W.2d 463, 464 (1933) (mistake
of fact defense allowed even where defendant vas charged under a strict liability
statute with the sale of adulterated food).
80. City of Seattle v. Ross, 54 Wash. 2d 655, 344 P.2d 216, 219 (1959) (statute
imposing strict criminal liability on any person found in a place where narcotics are
used or kept unlawfully held unconstitutional denial of due process).
81. State v. Sixo, 77 W. Va. 243, 87 S.E. 267, 270 (1915) (statute making
possession of liquor conclusive evidence of unlavful purpose held to be unconsti-
tutional).
 HOUSTON LAW REVIEW [Vol. 10:1039

law."82 Despite these pockets of resistance, however, strict criminal liability

remains generally unchecked by the courts.
Growing legislative resistance to criminal liability without fault is
reflected in the tendency of recently revised state penal codes to call for
a presumption of a mens rea requirement in all crimes, absent a clear legis-
lative intent to the contrary. 83 Unfortunately, this anti-strict liability trend
is offset by the concession of unlimited legislative power to eliminate mens
rea. 4 The malignant message of Shevlin, Balint, and Dotterweich has
metastasized. Resistance also is reflected in the Model Penal Code's asserted
"frontal attack on absolute or strict liability in penal law ... ."88 Regret-
tably "frontal attack" does not mean a recommendation for the total
elimination of strict liability. Rather, the Model Code proposes to change
the name of strict liability offenses from "crimes" to "violations" and limit
86
punishment to fines.
A "frontal attack" at the legislative level is not what is needed. The
Supreme Court should be willing to fulfill its duty to use the due process
clauses of the fifth and fourteenth amendments as reminders for Congress,
state legislatures, and courts that our forefathers never, never intended
the use of criminal laws to punish the blameless.

IV. THm BASIS FOR A GENERAL CONSTITUrIONAL DOCTRINE OF MFs R&,.

Since 1910 a majority of the Supreme Court has failed to recognize
that
[t]he Legislature may enjoin, permit, forbid, and punish; they
may declare new crimes ... they may command what is right,
and prohibit what is wrong; but they cannot change innocence
into guilt; or punish innocence as a crime .... To maintain that
our federal or state Legislature possesses such powers, if they
had not been expressly restrained, [is] . . . a political heresy
87

The Court should have brought its "political heresy" to an end long ago.
The contention that mens rea is a constitutionally required element in
all crimes is supported by any one of three lines of reasoning-the ninth
amendment fundamental rights concept, the ordered liberty concept of
fourteenth amendment due process, and the penumbra concept.

82. People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 675, 39 Cal. Rptr.
361,363 (1964).
83. See, e.g., N.Y. PENAL LAw 15.15(2) (McKinney 1967); TEx. PENAL CODE
6.04(b) (Proposed Draft, 1970).
84. A comment in the proposed Texas Penal Code concedes that "the legislature
is free to dispense with the requirement of a culpable mental state-as it has done in
creating the so-called strict liability offenses .... TEx. PENAL CODE 6.04, Comment
(Proposed Draft, 1970).
85. MODEL PENAL CODE 2.05, Comment 1 at 140 (Tent. Draft No. 4, 1955).
86. Id.
87. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (emphasis added).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA

A. The Ninth Amendment Concept

The ninth amendment, especially when considered in its historical
context,8 firmly establishes that there are unenumerated fundamental
personal liberties entitled to the same constitutional protection as our listed
rights. Do blameless individuals have a fundamental ninth amendment right
to be exempt from criminal sanctions? To answer this question, judges
"must look to the 'traditions and [collective] conscience of our people'
to determine whether a principle is 'so rooted [there] .. .as to be ranked
as fundamental." 8 9 Certainly our traditions and our collective conscience
demand that criminal liability be founded on blameworthiness. Free w-ill
is intrinsic to our society, and thus for centuries it has been a basic rule
of Anglo-American law that only those who freely and knowingly exercise
a choice to commit a crime are subject to condemnation as criminals.
Even Oliver Wendell Holmes conceded that criminal liability without
blameworthiness "would shock the moral sense of any civilized com-
munity."9 The personal right of the individual to have the state establish
mens rea before imposing criminal sanctions is as basic, as fundamental,
and as deep rooted in our society as any of the individual rights spelled
out in the Constitution. Therefore, the ninth amendment requires that the
right to mens rea receive the same constitutional protection and enforce-
ment as any of our expressed rights.

B. The Ordered Liberty Concept of Fourteenth Amendment Due Process

Under this theory, long identified with Justices Frankfurter and
Harlan, the due process clause of the fourteenth amendment is considered
to stand on its own bottom. "[T]he full scope of the liberty guaranteed
by the Due Process Clause cannot be found in or limited by the precise
terms of the specific guarantees elsewhere provided in the Constitution.91
Rather, due process "liberty" embraces those rights so fundamental as to
belong to the citizens of all free governments and for which government
was established to secure.9 These fundamental rights are determined by
considering "[e]ach new claim to Constitutional protection . . . against
a background of Constitutional purposes, as they have been rationally
perceived and historically developed." 3 In short, the ordered liberty con-
cept is a natural law theory of due process.
As Mr. Justice White stated in his concurring opinion in Griswold v.
Connecticut,9 "Where there is a significant enroachment upon personal

88. Refer to text at notes 19-20 supra.

89. Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concur-
ring), quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
90. 0. W. HoLms, ThE CoMMON LAw 50 (1881).
91. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).
92. Id. at 541; Calder v. Bull, 3 U.S. (3 DaL) 386 388 (1798).
93. Poe v. Ullman, 367 U.S. 497, 544 (1961) (Harlan, J., dissen ing).
94. 381 U.S. 479 (1965).
1054 HOUSTON LAW REVIEW (Vol. 10:1039

liberty, the State may prevail only upon showing a subordinating interest
which is compelling." 95 Congress and various state legislatures can offer
only two justifications for strict liability crimes: (1) a desire to effect
regulatory policies through the machinery of the criminal law, and (2) a
desire to facilitate criminal conviction of the guilty. Neither reason offers
the slightest justification for condemning blameless individuals as criminals.
Under the ordered liberty concept of due process, criminal liability
without fault is unconstitutional. To stigmatize a man as a criminal, even
though he may have had no awareness of what the law required or
that what he did was wrongdoing, is a denial of fundamental fairness that
is so arbitrary, so capricious, so unreasonable, and so oppressive as to
shock the universal sense of justice. Therefore, mens rea should be recog-
nized as a constitutionally essential element of all crimes.

C. The Penumbra Concept

The penumbra theory is that "'[1jiberty' . . . gains content from the
emanations of ...specific [constitutional] guarantees""0 that form penum-
bras or fringe zones of constitutional protection for fundamental rights not
otherwise specifically described. There are "unmistakable indications that
the Constitution means something definite and something serious when it
speaks of 'crime.'"97 Application of the penumbra theory reveals the con-
cept of mens rea to be a part of that "something definite." There are several
specific constitutional guarantees with emanations forming penumbral
zones of constitutional protection for mens rea-the prohibitions against
enactment of ex post facto laws and bills of attainder either by Congress
or by any state,98 the provisions requiring the right to trial by jury in all
criminal prosecutions, 9 and the prohibition against infliction of cruel
and unusual punishment. 100
1. Emanations from the Ex Post Facto Prohibitions-Theentire thrust
of ex post facto prohibitions is that only those who freely choose to violate
criminal law may be criminally convicted. As stated by the Supreme Court
in 1798, the ex post facto provision prohibits the following:
1st. Every law that makes an action done before the passing of
the law; and which was innocent when done, criminal; and
punishes such action.

95. Id. at 504 (White, J., concurring), quoting Bates v. City of Little Rock,
361 U.S. 516, 524 (1960).
96. Poe v. Ullman, 367 U.S. 497, 517 (1961) (Douglas, J., dissenting). See also
Griswold v. Connecticut, 381 U.S. 479, 482-85 (1965). In Griswold the penumbra
theory was utilized by the majority to support its finding that the right of privacy
is constitutionally protected. Id. at 485.
97. Hart, The Aims of the Criminal Law, 23 LAw & CoNTmr. Pnou. 401, 431
n.70 (1958).
98. U.S. CoNsr. art. I, 9-10.
99. Id. art. 1II, 2 and amend. VI.
100. Id. amend. VIII.
19731 A CONSTITUTIONAL DOCTRINE OF MENS REA

2d. Every law that aggravates a crime, or makes it greater than

it was, when committed.
3d. Every law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, -hen committed.
4th. Every law that alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the time
of the commission of the offense, in order to convict the of-
fender."'
Under the first prohibition a person cannot be convicted at all because
at the time he acted there was no crime for him to know and choose to
violate. Under the second prohibition a person cannot be convicted and
punished because when he acted he had no opportunity to know and
choose to violate the more serious crime. Under the third prohibition a
person cannot receive a greater punishment than he chose to risk when
he knowingly committed a crime.
The purpose of the fourth prohibition is to prevent legislative bodies,
in their zeal to convict the allegedly guilty, from altering evidence require-
ments so as to, in effect, eliminate the necessity of the state proving some
elements of the crime. Absent this ex post facto prohibition, a legislature,
by the simple expedient of adjusting evidentiary requirements, could relieve
the state of any duty to prove that an accused chose to violate every ele-
ment of the crime. A corollary reason for the ex post facto prohibition
against adjustment of evidentiary rules after the fact is to protect the
individual's fundamental constitutional right to the presumption of inno-
cence as to all elements of a crime. 0 2 These free choice emanations from
the ex post facto prohibitions dearly form a penumbra that gives consti-
tutional protection to the concept that mens rea is an essential element
of every crime. Legislatures cannot "change innocence into guilt, or punish
innocence as crime... f103
2. Emanationsfrom the BiUl of Attainder Prohibitions-Abill of attain-
der is any legislative act that takes away the life, liberty, or property of an
individual because the legislature thinks him guilty of conduct that deserves
punishment.-4 The constitutional prohibition of bills of attainder prevents
legislative imposition of criminal blame and punishment except by judicial
trial. An implication of the prohibition is that criminal sanctions can be
imposed only on those who have been proven in a judicial proceeding to
have acted in a criminally blameworthy manner.

101. Calder v. Bull. 3 U.S. (3 Dall.) 386,390 (1798).

102. The Supreme Court has held that the due process clause protects the pre-
sumption of innocence of an accused by protecting him "against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged." In re Winship, 397 U.S. 358, 364 (1970).
103. Calder v. Bull, 3 U.S. (3 DalL) 386,388 (1798).
 HOUSTON LAW REVIEW [Vol. 10:1039

3. Emanations from the Right to Trial by jury-The requirement of

a jury trial in all criminal cases has particularly strong emanations indica-
tive of a constitutional zone of protection for mens rea. When the Founding
Fathers provided in the Constitution that "[t]he Trial of all Crimes . . .
shall be by jury,"10 5 of logical necessity this had to include the right to
have the jury pass on every substantive fact going to the question of guilt
or innocence, which the term "crime" was then understood to include.
Otherwise, legislatures "could by a process of limitation in defining
crime . . . entirely destory the substance of the right by limiting the
questions of fact to be submitted to the jury."100 When the Constitution
was adopted in 1791, mens rea had been considered an essential element
in the Anglo-American common law of crime for over a century. Mens rea
always has been a jury issue; any attempt either to eliminate it or presume
it as a matter of law would conflict with the constitutionally protected
107
presumption of innocence.
In State v. Strasberg10 8 the Supreme Court of Washington hold un-
constitutional a statute that abolished insanity as a defense, which is one
aspect of mens rea. The court reasoned that the statute abrogated the
constitutional right to trial by jury:
The right of trial by jury must mean ...the accused has the right
to have the jury pass upon every substantive fact going to the
question of his guilt or innocence. Otherwise this provision of
our Constitution, found also in varying language in all the Con-
stitutions of the Union, state and federal, treasured by a free
people for generations as one of the principal safeguards of their
liberties, would be rendered void and utterly fail in the purpose
which our people have always believed it was intended to ac-
complish. 10 9
Thus, the right to trial by jury in criminal cases, guaranteed by the Con-
stitution and made applicable to the states through the fourteenth amend-
ment, 1 carries with it a strong penumbral right to introduce evidence on,
and to have the jury pass on, the issue of mens rea.

104. See Flemming v. Nestor, 363 U.S. 603, 612-13 (1960).

105. U.S. CONST. art. III, 2, cl. 3.
106. State v. Strasberg, 60 Wash. 106, 110 P. 1020, 1023 (1910).
107. Morissette v. United States, 342 U.S. 246, 274-75 (1952).
108. 60 Wash. 106, 110 P. 1020 (1910).
109. Id. at 1023.
110. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). The Court in Duncan
said, Because
we believe that trial by jury in criminal cases
is fundamental to the
American scheme of justice, we hold that the Fourteenth Amendment guaran-
tees a right of jury trial in all criminal cases which-were they to be tried in
a federal court-would come within the Sixth Amendments guarantee.
Id. 111. 370 U.S. 660, 667 (1962).
1973] A CONSTITUTIONAL DOCTRINE OF MENS REA

4. Emanations From the Cruel and Unusual Punishment Prohibition

-The cruel and unusual punishment provision of the eighth amendment
was interpreted in Robinson v. California"' to prohibit criminal conviction
for the involuntary status of narcotics addiction. The Court's refusal to
allow a person to be punished as a criminal for a physiological craving over
which he has no control is arguably a finding that there cannot be criminal
punishment without criminally blameworthy conduct. The eighth amend-
ment then, as judicially construed, gives off emanations of support for a
constitutionally required mens rea.

V. Cor"cLussON
By its more recent decisions, the Supreme Court has eroded sub-
stantially the blessing it gave to strict criminal liability in Shevlin-Carpenter
Co. v. Minnesota,! United States v. Balint,"13 and United States o. Dotter-
weich.1 4 A majority of the Court recognized ignorance of the law as a
defense to strict liability crimes of omission in Lambert v. California,15
declared in Smith v. Californian" strict liability crimes unconstitutional
when the absence of mens tea requirement chilled the exercise of free
speech, declared in Robinson v. California'7 a strict liability statute un-
constitutional that punished a status that no exercise of will can alter,
unofficially recognized irresistible compulsion as a criminal defense in
Powell v. Texas,"8 and in Papachristouv. City of Jacksonville"" declared
unconstitutional any criminal laws so vague as to deny an individual the
opportunity of making a rational choice to obey or disobey.
Nonetheless, strict criminal liability will continue to plague us until
the Court forthrightly confesses its error in ever supporting criminal
liability without fault and makes redemption by articulating a constitu-
tional doctrine of mens rea-a doctrine that recognizes free will to be the
fundamental and constitutionally imposed premise of all our criminal
law and that recognizes this premise to be manifested in the constitutional
right of each citizen to remain free of criminal sanctions (state or federal)
absent proof beyond a reasonable doubt of personal culpability (mens
rea) for the alleged criminal act or omission. Despite cries of anguish to
the contrary, such a doctrine would not destroy the ability of govern-
ment to enforce regulations for the protection of public health and safety.
Strict civil liability, stringent licensing requirements, and strong inspection
regulations would effectively protect public interests. Nor wvill a con-
stitutional mens rea requirement impose impossible tasks of proof on

112. 218 U.S. 57, 69 (1910).

113. 258 U.S. 250, 252 (1922).
114. 320 U.S. 277, 284-85 (1943).
115. 355 U.S. 225, 229-30 (1957).
116. 361 U.S. 147, 152-53 (1959).
117. 370 U.S. 660, 666-67 (1962).
118. 392 U.S. 514, 535-36 (1968).
119. 92 S. Ct. 839 (1972).
 HOUSTON LAW REVIEW [Vol. 10' 1039

prosecutors. True, prosecutors would always have the burden of establish-

ing mens rea beyond a reasonable doubt, but the presence of the issue
would never prevent the prosecutor from reaching the jury with his case
since the mens rea question must invariably go to the jury for determuina-
tion. 120 The jury decides if mens rea exists in a given case from the cir-
cumstances of the act itself, from all of the surrounding circumstances,
and from the defendant's evidence and testimony if any.121 This is not an
onerous burden for prosecutors.
In the case of In re Winship' 22 the Supreme Court held that the due
process clause protects the presumption of innocence of the accused by
protecting him "against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is
charged."2' This constitutional right to a presumption of innocence is a
hollow right indeed if a legislature can eliminate any substantive element
of a crime that suits its utilitarian purposes of the moment. It is no more
logical to assert a legislature's right to eliminate mens rea as an essential
element in a crime than it would be to assert its right to eliminate alibi
as a defense.'2 In Winship Mr. Justice Brennan said, "It is . . . important
in our free society that every individual going about his ordinary affairs
have confidence that his government cannot adjudge ihim guilty of a
criminal offense without convincing a proper factfinder of his guilt with
utmost certainty."12 5 May the Supreme Court soon restore that confidence.

120. Morissette v. United States, 342 U.S. 246, 274 (1952).

121. Id. at 276.
122. 397 U.S. 358 (1970).
123. Id. at 364.
124. See R. PamuNs, CnvmmiAL LAw 809 (2d ed. 1969).
125. In re Winship, 397 U.S. 358, 364 (1970) (emphasis added).