2 Chapter Two: Criminalization Decisions

Sections in Chapter 2

Who defines crimes? Common law to codification
Why enact criminal laws? Principles of criminalization
Who, why, and how to define a crime
Intention, action, and beyond: the basic form of a crime definition
The Voluntary Act “Requirement”
Criminalization and the U.S. Constitution
End of Chapter Review


In this chapter, criminalization refers to the classification of a type of conduct as criminal. To criminalize conduct means that persons who engage in that conduct may become liable for criminal sanctions. But criminalization itself does not guarantee that all persons who engage in the conduct will actually be punished, as will become more clear in the next two chapters on enforcement and adjudication. This chapter raises four questions about criminalization.

  • Who? Which public officials or government institutions have the power and authority to classify conduct as criminal?
  • Why? When public officials designate a type of conduct as criminal, why do they make that choice?
  • How, or, in what form? When a public authority designates conduct as criminal, what form does that designation take? Are there necessary components that must be included in the definition of a crime?
  • With what limits? Are there constraints on the power to declare conduct to be criminal?

For any of these questions, there may be a divergence between a purely descriptive answer and a normative answer. For example, one might think that, as a normative matter, all criminalization decisions should be made by the legislature and expressed in a clearly worded statute. And yet one might discover that in practice, vaguely worded statutes give courts or law enforcement officials the power to decide what kinds of conduct will be treated as criminal. This chapter seeks both to provide accurate descriptions of how criminalization decisions are made and to prompt reflection on normative questions about how criminalization decisions should be made.

One important question may seem to be missing from the above list: what types of conduct are, or have been, criminalized? Put simply, which acts are crimes? A catalogue of all crimes would be far too long for one book, let alone one chapter. But this book does aim to give you an overview of the types of conduct that have been defined as criminal. You will get some of this overview in Part B of this chapter, which addresses the reasons that public officials choose to criminalize. The range of different types of acts that have been designated as criminal may provide some clues to the reasons underlying criminalization choices. In addition, the final section of this chapter identifies some narrow areas in which the U.S. Constitution might prohibit criminalization of certain types of conduct. Most broadly, the book as a whole, including Unit Two with its focus on specific offenses, attempts to give you a sense of criminalization patterns in American jurisdictions.

An example may be useful to clarify the distinction between criminalization, discussed in this chapter, and enforcement and adjudication, discussed in the following two chapters. As you are no doubt aware, American states and the federal government have long criminalized the possession and distribution of many substances deemed dangerous. Some jurisdictions have recently decriminalized marijuana, which means that persons who possess or sell marijuana according to state guidelines are no longer subject to criminal punishment for that conduct. But even in a jurisdiction that continues to criminalize marijuana possession, the mere fact that a person possesses marijuana is not, by itself, sufficient to ensure that the person will be convicted and punished. For those things to happen, the person needs to be subject to enforcement – such as a police officer’s discovery of the marijuana, and a prosecutor’s choice to press charges – and adjudication – a formal determination of guilt. Criminalization is the first key decision that leads to punishment, but it is only the first.

Who defines crimes? Common law to codification

In early English common law, courts were primarily responsible for criminalization. Criminalization decisions were expressed in judicial opinions which identified certain kinds of acts as eligible for criminal liability. But from a fairly early date, courts shared the authority to criminalize with legislatures, who could enact statutes defining types of conduct as criminal. By 1765, the English Parliament had created at least 160 statutory felonies (each punishable by death). William Blackstone, 4 Commentaries on the Laws of England 18 (1765). After the American colonies declared their independence and began to establish their own criminal legal systems, they imported many English common law definitions of crimes, but they also began enacting new criminal statutes. And even as American state courts applied and interpreted English common law precedent, they also altered those precedents or designated new categories of activity as criminal, thus developing an American common law of crime. Thus, for much of American history, an act could be classified as criminal in any of three circumstances: 1) because English courts had criminalized it; 2) because American courts had criminalized it; or 3) because American legislatures had criminalized it.

But the notion that courts could declare conduct to be criminal was controversial in the young United States, and throughout the nineteenth century there were calls to eliminate this judicial power and codify all of criminal law – that is, to permit legislatures and only legislatures to define conduct as criminal. In 1812, the U.S. Supreme Court decided that federal courts lacked the power to define common law crimes; only Congress, the federal legislature, could designate conduct as a federal crime. United States v. Hudson & Goodwin (1812). Hudson & Goodwin does not directly affect the power of state courts to designate conduct as criminal under state law, but most U.S. states did in fact eventually limit or abolish the power of state courts to declare conduct to be criminal. Recall Commonwealth v. Mochan from the previous chapter, in which the majority continued to endorse common law crimes and the dissent urges exclusive legislative authority to criminalize. Even when decided in 1955, Mochan was an outlier. As you read in Commonwealth v. Copenhaver at the end of Chapter One, Pennsylvania eventually joined most other American states in abolishing common law crimes.

As a general matter, criminalization is now a legislative decision in the United States. That is, to prosecute a person in the U.S. today, officials almost always do need a statute, which is an official legislative statement defining conduct as criminal. Criminal law is a statutory field in this sense: it would be very unusual to see today a prosecution like the one in Mochan, where prosecutors did not cite any specific statute at all. Statutes, collected in criminal codes, are a central part of criminal law, and this chapter will explore several issues related to codes and statutes. But the prominence of statutes does not mean that “common law” principles or terms are now unimportant, or that judges have no power to shape the definition of crimes. As you will see, many criminal statutes use common law terms or definitions, and judges often invoke the common law in interpreting statutes. Moreover, when we turn our attention from the definitions of offenses to the scope of affirmative defenses, such as self-defense or necessity, we will see that common law terms and reasoning continues to play a more prominent role in that arena.

Between the legislature and the judiciary, who should have the power to define conduct as criminal? You may wish to glance back at Judge Woodside’s dissent in Mochan for some arguments for legislative primacy. Two standard arguments focus on democracy and notice. The democracy argument holds that a legislature is the best representative of the people, and criminalization choices should reflect the will of the people. The notice argument focuses on the form of criminalization, holding that a statute gives individuals advance notification that certain acts will be liable for punishment, whereas judicial decisions typically involve an actual defendant who has already been charged, and thus may not provide adequate notice to that particular defendant. Can you think of other reasons why either the judiciary or the legislature may be better suited to make criminalization decisions?

Are legislatures and courts likely to make different kinds of criminalization choices? In particular, is one institution more likely to classify conduct as criminal than the other? Some scholars have suggested that the threshold for criminalization may be lower when legislatures, rather than judges, define what is criminal. It does appear to be the case that legislatures enact new crimes more readily than do the handful of courts that retain the authority to declare common law crimes. And the greater legislative readiness to criminalize appears to have operated even before judicial crime definition fell into disfavor. As noted above, William Blackstone observed – and lamented – the proliferation of statutory felonies in England back in 1765! For further comparison of judicial crime-creation to legislative crime-creation in the United States, see Carissa Byrne Hessick, The Myth of Common Law Crimes, 105 Va. L. Rev. 965 (2019); Dru Stevenson, Costs of Codification, 2014 U. Ill. L. Rev. 1129.

Whatever one’s normative views as to who should make criminalization decisions, it is important to understand the existing state of American law: legislatures decide what conduct is criminal, at least as an initial matter. (In the next chapter we will note some ways that the executive branch can participate in or influence criminalization decisions, and in Chapter Four, we consider ways in which courts make criminalization decisions through their interpretation and application of statutes.) Although criminalization remains a choice to be made most often by the legislature, there is no single legislature that makes all of American criminal law. Congress is our national legislature and its criminal statutes – federal criminal laws – do apply across the nation. The first case in this chapter, Morissette v. United States, involves a federal criminal statute that was used to prosecute a man accused of taking federal property in Michigan. But as you will learn when you study constitutional law, Congressional power is limited in various respects. Most criminal law comes from state legislatures, not Congress, which means that the definitions of crimes vary from state to state. Most states have a crime called “murder,” but the precise definition of murder can vary from state to state. Thus, whether a particular killing constitutes a murder can depend on where the killing takes place. This point bears emphasis, and repetition: jurisdiction matters! Always pay attention to where potentially criminal activity takes place, and consider the relevant laws of that jurisdiction. (Luckily, as noted in the first chapter, you do not need to memorize the various laws of every jurisdiction to do well in a criminal law course, or to do well as a practicing lawyer. But you do need to know that jurisdiction matters, and you need to be able to understand and apply the relevant statutes of a given jurisdiction.)

One particular collection of criminal statutes has traditionally loomed large in law school teaching. In the 1950s, a group of scholars and jurists developed a set of criminal statutes called the Model Penal Code (MPC). The American Law Institute, the group that drafted the MPC, is not a government entity and has no official authority to make binding law. Instead, the Institute sought to create a model or blueprint that would inspire actual legislatures to revise their own criminal codes. The drafters of the MPC sought greater consistency and rationality in criminal law. They saw some common law principles as outdated or misguided, and thus certain aspects of the MPC deliberately depart from common law traditions. After the MPC was published in 1962, some state legislatures did enact statutes that follow specific parts of the MPC, though no state adopted the entire model code. Certain provisions of the MPC have been very influential and widely copied in actual legislation. But as a code, or a complete set of statutes, the MPC is probably more widely embraced by law professors, who often give it extensive attention in a criminal law course, than by legislatures. The MPC is also influential among judges, who sometimes refer to the MPC when addressing questions not directly resolved by an existing statute. In short, some parts of the MPC have influenced actual codes and practices more than others. And even among states that have adopted parts of the MPC, significant local variation has developed as different state courts interpret MPC-inspired statutes differently. See Anders Walker, The New Common Law: Courts, Culture, and the Localization of the Model Penal Code, 62 Hastings L.J. 1633 (2011). Throughout this book, we will look at portions of the MPC when they are relevant, but it is important to keep in mind that the MPC is a blueprint or model rather than a binding legal document.

Among state criminal codes that borrow heavily from the MPC and those that do not, one common feature deserves emphasis: all criminal codes tend to be sprawling and ever-growing legal texts, with many statutes that seem to overlap – that is, multiple statutes that could plausibly be used to punish the same conduct. Even in states that have enacted many MPC-inspired statutes, the impact of those statutes may become less important as other statutes proliferate. Legislatures add new criminal statutes fairly often, and remove statutes somewhat more rarely. Somewhat counterintuitively, perhaps, some scholars have described the steady expansion of criminal codes as “degradation”: “[t]he main form of degradation is the proliferation of numerous new offenses that duplicate, but may be inconsistent with, prior existing offenses.” Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 635 (2005). “American criminal codes have, since their initial codification, shown a tendency to become bigger and bigger. Bigger, however, is not always better. Indeed, it is sometimes worse….” Id. In later chapters, we will consider ways in which enforcement and adjudication decisions are affected by the proliferation of criminal statutes, especially the phenomenon of overlapping statutes. Most importantly, overlapping statutes increase enforcement discretion and make guilty pleas more likely, as we shall see.

Why enact criminal laws? Principles of criminalization

To classify conduct as criminal is to say that persons who engage in that conduct may be subject to criminal liability, which usually involves the imposition of some kind of burden, such as loss of physical liberty, monetary penalties, or other unpleasant consequences. Why do public officials choose to subject certain kinds of conduct to criminal sanctions? One simple answer focuses on criminal sanctions as deterrents: the government wants to discourage some type of conduct, and so it threatens unpleasant consequences for those who engage in that conduct. That answer isn’t complete, though. First, we may still wonder how a government chooses what conduct to discourage, and how it decides when to use criminal sanctions as opposed to other incentives or disincentives, such as civil penalties. And second, the deterrent effects of criminal sanctions are mixed. Sometimes the threat or imposition of criminal penalties does seem to discourage persons from engaging in the specified conduct, and sometimes it doesn’t. The continued (and ever-growing) enactment of criminal statutes in the face of mixed deterrent effects raises the possibility that reasons other than a desire to deter may sometimes motivate criminalization choices.

If public officials criminalize conduct in order to be able to punish it, the rationales for criminalization are likely to coincide with rationales for punishment. In addition to deterrence, retribution (or “just deserts”), incapacitation, and rehabilitation are frequently identified as goals of punishment. These considerations do often enter discussions of criminalization, but again, notice that these goals do not themselves tell us which acts need to be deterred, retributed, incapacitated, or rehabilitated. And if it sounds strange to speak of incapacitating or rehabilitating acts rather than people, that should highlight an important difference between criminalization and punishment. Criminalization can target acts or conduct; the state can designate an act as a crime even before the act takes place, and even if the act never actually does take place. But punishment, the actual imposition of criminal sanctions, is something that is done to a person. Punishment may be imposed in response to an act, but it is imposed on the person who has been found to engage in that act. Toward the end of this chapter, we will examine further the ways in which criminal law targets acts, persons, or both.

Many philosophers have developed principles of criminalization to explain when it is appropriate to designate conduct as criminal. The philosophers’ principles aren’t binding law, of course, but they could provide insight into actual government decisions or serve as a normative guide for government actors. One possible principle of criminalization is a harm principle, which could hold that conduct should be criminalized if and only if the conduct causes harm to other people. (Of course, what constitutes harm, and how much harm must occur to warrant government intervention, are further issues to be decided. Recall again Mochan, in which “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere” was said to be criminal, and a vulgar phone call was found to be sufficiently injurious, or harmful, to constitute a crime.) Some theorists would distinguish between harm and wrong, and would argue that criminal sanctions should be imposed on wrongful conduct even if wrongs do not always cause harm. (Again, what constitutes wrongful conduct, and when a wrong warrants criminal intervention, must also be determined. As noted in Chapter One, tort law is also purportedly concerned with wrongful conduct. When should a state choose criminal sanctions rather than, or in addition to, tort sanctions?)

The concepts of harm and wrong may be too abstract to give concrete guidance to criminalization choices. If we look at the actual types of conduct that have been designated as criminal in many jurisdictions, we see that inflictions of physical injury to other persons (killing, in the most extreme, but also nondeadly assaults), taking property in violation of existing ownership rules, activities considered immoral, and activities viewed as unnecessarily dangerous are common categories of criminal offenses. But this list is only a brief beginning. Legislatures often attach criminal sanctions to violations of seemingly mundane public regulations. One much-cited example is the federal statute that criminalizes the misuse of Smokey the Bear’s image. More obscurely, an early Hawaii statute designated the practice of photography without a license as a misdemeanor offense. See Territory v. Kraft, 33 Haw. 397 (1935). (Fritz Kraft photographed President Franklin Roosevelt during the president’s visit to Hawaii, and then sold prints of the image, thus triggering a misdemeanor prosecution. The Supreme Court for the territory of Hawaii, which was not yet a state, eventually decided that the statute exceeded the government’s power.) Morissette v. United States, discussed below, discusses a category of regulatory offenses known as “public welfare” offenses. In recent years some legal theorists have urged the preservation of “public order” or “civil order” as a principle to guide criminalization choices, but it is not clear whether civil order is any more precise a guide than the concept of harm or wrong.

It is important to consider the reasons that public authorities choose to criminalize conduct, but do not be frustrated if you can’t identify one principle or even one set of principles that seems to explain all criminalization choices. The enactment of a new criminal statute is an action by elected politicians; you can decide for yourself whether politicians act always on principle. The criminal law scholar William Stuntz famously said that “American criminal law’s historical development has borne no relation to any plausible normative theory – unless ‘more’ counts as a normative theory.” Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001). Whether you agree with Stuntz or not, thinking about the rationales for various criminal laws can help you understand how this area of law works. With that in mind, take a moment to think about criminalization choices in relation to enforcement choices.

The principles of criminalization identified above treat the question “why criminalize” as essentially equivalent to the question, “why punish?” But designating conduct as criminal does not mean that all who engage in that conduct will automatically be punished. When an act is designated as criminal, persons who engage in that act may become liable to punishment. But such a person is not actually punished until enforcers detect the violation, gather sufficient evidence of it, and prosecute and convict the person. Criminalization empowers enforcement actions, as discussed in relation to Copenhaver in Chapter One. Designating conduct as criminal empowers police and prosecutors to investigate, intervene, and initiate charges. Sometimes, there may be reasons to pursue these enforcement actions even if the government is not concerned about punishing the specific conduct that authorizes the investigation. For example, many investigations of traffic offenses are likely designed to gather information about other, unrelated offenses, such as drug crimes. The government may not see much value in imposing criminal punishment for traffic violations, but it may see great value in policing traffic violations. Thus, empowering law enforcement to intervene might itself be the aim of some criminalization decisions. We will return to this topic in the next chapter, which considers enforcement choices in more detail.

And finally, consider the possibility that some criminalization choices are primarily expressive. The government sometimes may wish to declare conduct criminal in order to communicate its disapproval of that conduct, even if it does not expect to impose punishment often. (Consider the criminalization of suicide, for example.)

Check Your Understanding (2-1)

Who, why, and how to define a crime

So far, we have discussed who makes criminalization decisions and why government may wish to criminalize. Both of these questions, along with a third – must the definition of a crime include certain ingredients, such as a requirement of wrongful intent? – arise in Morissette v. United States, presented below. Before you read the Supreme Court’s opinion, look at the text of the statute, excerpted below. Because criminalization is usually a legislative choice in contemporary law, most cases included this book involve the application of a specific criminal statute. Thus, most cases will be preceded by the relevant statutory text. Reading the statutory text will help you in a few ways. First, reading statutes and regulations is important to modern legal practice in any area of law, not just criminal law. Law does not reside wholly in judicial opinions, and you should become comfortable reading legal texts that were not written by courts. Second, you should become familiar with the standard form of a criminal statute. The statute below, like most criminal statutes, is not formulated as a command to individuals in the form, “don’t do X.” Instead, this statute, like most criminal statutes, describes a type of activity or conduct and specifies a punishment to be imposed on those who engage in that activity. The statute tells government officials – police, prosecutors, judges – what to do when someone engages in the criminalized conduct. In the next chapter, we will consider in more detail the way in which a statute operates to expand the power of enforcement officials. A third reason to look closely at the statute will become more clear by the end of this chapter: many criminal statutes can be divided into “elements,” or separate components that must be established in order to convict a defendant. You can use the statutes that precede cases in this book to practice identifying the separate elements of a given crime. (The next section of this chapter will give you more guidance about how to identify “elements.”) Finally, you may find it helpful to glance back at the statutory text as you read the judicial opinion. As you will see, arguments about the best way to interpret the statutory language are often the focus of appellate opinions.

With all that said, consider the following federal statute, first enacted by Congress in 1948:

18 U.S.C. § 641. Public money, property, or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States … shall be fined under this title or imprisoned not more than ten years, or both….

Joseph Edward MORISSETTE



Supreme Court of the United States
342 U.S. 246

Jan. 7, 1952

Justice JACKSON delivered the opinion of the Court.

This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law….

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. At various places about the range signs read ‘Danger—Keep Out—Bombing Range.’ Nevertheless, the range was known as good deer country and was extensively hunted. Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were … dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette … is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he ‘did unlawfully, wilfully and knowingly steal and convert’ property of the United States of the value of $84….

On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: ‘(H)e took it because he thought it was abandoned and he knew he was on government property. * * * That is no defense. * * * I don’t think anybody can have the defense they thought the property was abandoned on another man’s piece of property.’

The Court of Appeals … affirmed the conviction…. Its construction of the statute is that it creates several separate and distinct offenses, one being knowing conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court’s decisions in United States v. Behrman (1922) and United States v. Balint (1922).

In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more—it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think … an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.

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 consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution….

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. [1]As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as ‘felonious intent,’ ‘criminal intent,’ ‘malice aforethought,’ ‘guilty knowledge,’ ‘fraudulent intent,’ ‘wilfulness,’ ‘scienter,’ to denote guilty knowledge, or ‘mens rea,’ to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.

However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. [They represent] a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called ‘public welfare offenses.’ 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 of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations 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. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime….

After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation [but New York courts disagreed].… [F]or diverse but reconcilable reasons, [other] state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.

Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion…. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote: “While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it * * *, there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court.” Balint.

On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent.” Behrman.

[But] since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention….

…[R]ecently … the Court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to ‘a now familiar type of legislation whereby penalties serve as effective means of regulation’, and continued, ‘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.’ United States v. Dotterweich (1943).

Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.

Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ‘* * * as bad a word as you can give to man or thing.’ State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.

Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law…

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.


[Even if] criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section, it is urged that Congress joined with those, as a new, separate and distinct offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.

… Congress, by the language of this section, has been at pains to incriminate only ‘knowing’ conversions. But, at common law, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant. If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for his well-meaning may not be allowed to deprive another of his own.

Had the statute applied to conversions without qualification, it would have made crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt. for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.

… We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.


As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.

Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury…. It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act…

We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition…

Of course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innocent intent and concluded that his assertion of a belief that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.


Notes and questions about Morissette

  1. For Joseph Morissette to be convicted, a criminalization decision is necessary. Here, the relevant criminalization decision is the decision that whoever “knowingly converts” federal property is guilty of an offense, as stated in the applicable statute, 18 U.S.C. § 641. Who made this decision? In one respect, the obvious answer is Congress. But once Congress has decided that it is a crime to “knowingly convert” federal property, who then decides what it means to “knowingly convert” federal property? More specifically, who decides whether the offense of knowing conversion requires an intention to act wrongfully? Is it the prosecutor’s decision? The trial judge’s? Someone else?
  2. Notice that the Court links the purposes of criminalization to the analysis of the definition of a particular crime. Because “public welfare” offenses were enacted for different purposes than traditional common law crimes, public welfare offenses need not always require proof of wrongful intent. What makes an offense into a public welfare offense? Why isn’t knowing conversion of government property a public welfare offense, in the Court’s view?
  3. As with all appellate opinions, read carefully and remember that you are reading an opinion – a document designed to advocate one view of the law. The Court makes some broad claims about criminal law in general, such as, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.” Later, the Court acknowledges that these generalizations are not true of all crimes, and the Court focuses its attention on the particular statute at hand. Does Morissette establish that all crimes require wrongful intent? If not, what rules or principles does the case establish? (Try to answer these questions on your own, then read the notes below to see if you’re on the right track.)
  4. Morissette v. United States is the first case in this book that focuses on the interpretation of a criminal statute, but it is hardly the last. (In Chapter One, Mochan involved a common law prosecution without an applicable criminal statute, and Copenhaver focused on the scope of the common law power of county sheriffs to make arrests.) The statute used to prosecute Joseph Morissette, 18 U.S.C. § 641, is included in your text just before the court’s opinion. This format will be used throughout the book. For each case, the relevant statutory text will be reproduced immediately before the judicial opinion. As explained above, reading and interpreting statutes is an important skill that you should practice often.
  5. The Supreme Court’s statement of its own holding can be found at the end of Part I of the opinion: “We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.” It’s important to be able to identify the holdings of cases, as you’ve probably already learned. But this narrow holding, focused on this particular statute, is not the only lesson to be drawn from Morissette. Several broader aspects of this case merit emphasis. First, you should notice that the mere existence of a statute, like § 641, does not necessarily resolve all questions that arise about crime definitions. Very often, statutes require interpretation; someone has to decide what the words of the statute mean. Second, notice that the interpretive question here concerns mental states, or mens rea: what must the defendant be thinking in order to be guilty of this statutory offense? Mens rea is a concept very important to criminal law, as discussed further in the next note. Third, the Court suggests that while “strict liability,” or liability without proof of any specific mental state, is possible in criminal law, courts should not presume strict liability simply because a statute fails to state explicitly a mens rea requirement. Here, although the language of the statute does not mention intent, the Supreme Court concludes that conviction of the statutory offense does require proof of wrongful intent. And finally, notice that to answer the interpretive question about the mens rea requirement of § 641, the Court discusses the mens rea requirements of common law larceny and related offenses. This is one of the ways in which common law crime definitions or other common law doctrines remain important even in today’s world of statutes: when statutory text is susceptible to multiple interpretations or otherwise leaves important questions unresolved, courts often turn to common law to attempt to resolve the ambiguity.
  6. “Mens rea” is typically translated as “guilty mind.” This term is often used to refer to the mental state that a defendant must have in order to be guilty of a crime. The Morissette Court identifies several other terms that have also been used to refer to required mental states: scienter, willfulness, malice aforethought, and others. Courts have defined these terms slightly differently in different jurisdictions and contexts, so we will study the meanings of these terms as they arise in particular cases and with regard to particular offenses. Perhaps of interest to linguistics or history buffs: “mens rea,” like its companion term “actus reus” (translated as “guilty act” and discussed below), is legal Latin, a term that gained its current meaning after Latin was no longer widely used as a spoken language. The principle that crime definitions “always” required wrongful intent may have first circulated in the eighteenth or nineteenth century. At that time (and before and after), there were many counterexamples of crimes without a wrongful intent requirement. See Guyora Binder, The Rhetoric of Motive and Intent, 6 Buff. Crim. L. Rev. 1, 16 (2002); Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932). Today, however, mens rea requirements are very common in criminal law. As you will see, appellate courts frequently uphold a conviction, or reverse one, based on an assessment of the defendant’s mental state. Being able to analyze and make arguments about mens rea requirements is critical to success in a criminal law course or in the practice of criminal law. We’ll return to the subject of mens rea many times over the course of this book.
  7. Recall again that each criminal conviction requires not only a criminalization decision, but also a decision to enforce the law against a particular defendant and a decision that the defendant is in fact guilty. From the lower court opinion in this case, we know this much about the enforcement decisions: Joseph Morissette left the federal land with a large pile of “bomb-shaped” pieces of metal in his truck, easily visible to any passerby. At some point after leaving the government land, Morissette was questioned by a police officer, and Morissette told the officer how and where he obtained the metal. The police officer alerted an FBI agent, who later contacted Morissette. Morissette responded promptly to the FBI’s inquiry and explained to them how he had obtained the metal. Which of these facts, or other facts in the Supreme Court’s opinion, seem most relevant to a prosecutor’s decision to pursue charges in this case? Would you have chosen to prosecute Morissette, given what you know about the case? Why or why not? In Chapter Three, we will consider in more detail how police and prosecutors decide to pursue specific prosecutions.
  8. Part III of the Supreme Court’s opinion is most focused on the adjudication decision, and more specifically, on the question who should decide whether Morissette had the requisite wrongful intent when he took the bomb casings. You should notice the ways that criminalization, enforcement, and adjudication decisions interact with one another. In order to know whether the jury has to find wrongful intent, the Court must determine whether the criminalization of “knowing conversion” included a wrongful intent requirement. We’ll consider the statutory analysis of § 641 in more detail in the next section.

Intention, action, and beyond: the basic form of a crime definition

As you now know, modern criminalization decisions are legislative decisions in the first instance – Congress or a state legislature must enact a statute to define conduct as criminal. In this section, we’ll look at several examples of criminal statutes to become familiar with the usual form and components of a criminal statute. We can start with the same federal statute that was used to prosecute Morissette, 18 U.S.C. § 641. Here is the statutory text again:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States … shall be fined under this title or imprisoned not more than ten years, or both….

Notice that this statute describes conduct and sets a penalty for persons who engage in that conduct. Notice also that the statute uses some terms that may themselves seem to name criminal activity – embezzle, steal, purloin – but it does not define those terms, or specify the differences among them. And notice that § 641 is susceptible to multiple interpretations, especially with regard to the question of what mental state the defendant must hold in order to complete the crime. Each of these aspects of § 641 is fairly typical of criminal statutes, as you will see as you read more statutes.

The standard path to a criminal conviction is a guilty plea, and most guilty pleas do not lead to an appeal. In most of those cases, there may be no dispute about the meaning of a statute. But within the small fraction of cases in which a defendant contests guilt and later pursues an appeal, it is fairly common to see questions of statutory interpretation arise. Again, for each judicial opinion in this book, the relevant statutory text is reprinted at the beginning of the case (and/or included in the court’s opinion). You should look at these statutes closely, both to help you understand the specific issues addressed in each judicial opinion and to become generally familiar with the format, structure, and terminology of criminal statutes.

Some basic terminology will be helpful as you read and analyze criminal statutes, and as you read courts’ analysis of these statutes. To become familiar with the terms, consider a simple theft statute:

Theft of property, Tennessee (T.C.A. § 39-14-103):

A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.

This statute, like most, can be divided into component parts, or “elements.” The elements of an offense are the separate facts that must be established – “proven” to a jury or more frequently, admitted by the defendant – in order to convict the defendant. Theft in Tennessee has three elements, according to the state courts:

  1. The defendant obtained or exercised control over property;
  2. The defendant did not have the owner’s effective consent; and
  3. The defendant intended to deprive the owner of the property.

As it is phrased here, the first element focuses on the defendant’s actions or conduct – obtaining or exercising control over property. Courts and practitioners often use the terms “conduct element” or “actus reus” to describe the element(s) of a crime definition that refers to the defendant’s actions. Actus reus is usually translated as “guilty act.” Just as courts have considered whether crime definitions must always include mens rea or mental state elements, courts have considered whether actus reus is a required element of any crime definition. That question is examined further in the next section of this chapter.

For a moment, skip the second element of theft in Tennessee (lack of effective consent), and look at the third listed element: intent to deprive the owner of property. This is a mens rea element expressly stated in the statutory text. As you now know from Morissette, courts might find a required mens rea element even if one is not stated clearly in the statutory text. But the first place to look for mens rea, or any aspect of a crime definition, is the text of the statute itself.

But notice that there is a mens rea term in the statutory text that did not appear in the numbered list of elements: the defendant must “knowingly” obtain or exercise control over the property. A more precise list of the required elements of this theft statute would specify that obtaining or exercising control must be done knowingly. With precision, though, comes complexity. If the first fact that the prosecution must prove is that “the defendant knowingly obtained or exercised control over property,” this fact will combine a conduct element (obtaining or exercising control) with a mental state element (knowledge that one is obtaining or exercising control). (And with complexity come more questions: does the word “knowingly” modify only the verbs “obtains or exercises control”? Or does “knowingly” also modify “without the owner’s effective consent,” meaning that the defendant must be aware that the property owner has not consented in order to violate this statute? These are the kind of interpretive questions that often arise with regard to criminal statutes.)

Now go back to the middle element of the Tennessee statute, the requirement that the defendant did not have the owner’s effective consent. This element doesn’t refer directly to the defendant’s own mental state or the defendant’s conduct; it doesn’t tell us something about what the defendant must be thinking or doing in order for the crime to occur. Instead, this element describes another fact or circumstance that must exist in order for the crime to occur: the owner of the property must not have given consent for the defendant to take or control the property. This kind of element is sometimes called an “attendant circumstance” element.

In addition to mental state / mens rea, conduct / actus reus, and attendant circumstances, crime definitions also may refer to results or causation requirements. Imagine the same Tennessee theft statute, but with one more element:

  1. The defendant obtained or exercised control over property;
  2. The defendant did not have the owner’s effective consent;
  3. The defendant intended to deprive the owner of the property; and
  4. The owner suffered substantial financial loss.

This fourth element is a result element: it requires a showing that a certain result has taken place. As suggested by the term “result,” courts would generally interpret such an element to require not only proof that the specified event occurred – proof that the owner did suffer substantial financial loss – but also proof of causation – proof that the defendant’s conduct caused the owner’s loss. We will look more closely at result elements and causation requirements in Chapter Five.

Sometimes, identifying the elements of a crime will be as easy as reading the statute and separating the text into different clauses. But often, identifying the elements of a crime requires more work, and argument, than simply reading the statute. In some instances, the statute will use a label without defining it, and you’ll have to look beyond the statute to learn the elements of the offense. (What does it mean to embezzle, or purloin, under the statute used to prosecute Joseph Morissette?) In some instances, even simple and seemingly clear words will be susceptible to more than one interpretation. (In the Tennessee theft statute just discussed, which terms are modified by the word “knowingly”?) And sometimes courts will identify elements that are not clearly stated in the text of the statute, as the Supreme Court did in requiring proof of wrongful intent in Morissette. When statutory language is unclear or subject to multiple interpretations, part of a lawyer’s task is to argue for one interpretation or another.

Consider the federal theft statute applied in Morissette one more time to see how separating a statute into elements can help you ask more precise questions about what must be established to show that the crime has occurred. Again, we can think of elements of an offense as the separate facts that must be established – “proven” to a jury or more frequently, admitted by the defendant – in order to convict the defendant. At Joseph Morissette’s trial, the prosecution needed to prove the following elements:

  1. Morissette did embezzle, steal, purloin, or knowingly convert
  2. to his use or the use of another
  3. a thing of value
  4. belonging to the federal government.

The prosecution did not argue that Morissette had embezzled or purloined the metal casings, but did allege both stealing and conversion. The indictment – the formal document that charged Morissette with the offense – alleged:

That on or about the 2nd day of December, A.D. 1948, at Oscoda, Michigan, in the Eastern District of Michigan … Joseph Edward Morissette, did unlawfully, willfully and knowingly steal and convert to his own use about three tons of used bomb casings having a value of approximately $84.00, and being the property of the United States of America, located at the bombing range of the Oscoda Army Air Base, in violation of Section 641, United States Code, Title 18.

Notice that, besides alleging stealing and conversion, the indictment did claim that Morissette acted with wrongful intent—“unlawfully, willfully and knowingly.” But an allegation in an indictment is not proof at trial. Did the prosecution “prove” the right mental state? Did the jury determine that Morissette had acted with wrongful intent? Statutory analysis often requires a precise determination of the mental state the defendant must have with respect to each separate element of the offense. In Parts II and III of its opinion, the Supreme Court tackled this more precise analysis. What, exactly, did Morissette need to be thinking in order to commit this crime? Did he need to intend to steal, meaning that he had to think that what he was doing was reasonably called “stealing” and therefore illegal? Or was it enough for Morissette to know that he was taking property, even if he did not know that he was doing anything illegal? Look closely at Part II.

Check Your Understanding (2-2)

Ultimately, the Supreme Court determined that because the jury had not been properly instructed on the need to find wrongful intent (in the sense of awareness that one is taking the property of another), the courts could not be confident that the jury did in fact find the necessary mental state, and so Morissette’s conviction was reversed.

Breaking a statute into elements helps analyze these questions, and others that may arise. For example, suppose that Morissette did intend to steal the bomb casings, in the sense that he assumed they belonged to someone but nevertheless decided to take them from their rightful owner and sell them for profit. But suppose also that Morissette did not know that he was on government property, and instead he thought he was stealing from a private landowner. Would he be guilty of a violation of 18 U.S.C. § 641? Does the requirement of wrongful intent apply only to the act of taking the property, or also to the attendant circumstance that the property belongs to the federal government?

Don’t be frustrated if you don’t know the answer to the previous question even after reading the statute, or even after reading the Court’s opinion in Morissette. Neither did prosecutors and defense attorneys, until a number of federal courts issued opinions on this particular question of statutory interpretation. The courts did not all agree initially; one federal circuit initially interpreted 18 U.S.C. § 641 to require proof that the defendant knew that the property in question belonged to the federal government. But this circuit later overruled its own earlier decisions and joined other federal courts in holding that the fact that the government owned the property was a “jurisdictional element” that did not have an associated mens rea requirement. See United States v. Speir, 564 F.2d 934, 937-938 (10th Cir. 1977), overruling Findley v. United States, 362 F.2d 921 (10th Cir. 1966) and United States v. Baltrunas, 416 F.2d 401 (10th Cir. 1969). Now, courts are “unanimous that a person may violate 18 U.S.C. § 641 … even though that person is ignorant of the government’s ownership of the converted property.” United States v. Sivils, 960 F.2d 587, 595 (6th Cir. 1992). The defendant does still need to know that the property belongs to someone other than the defendant, as the Court established in Morissette, but the defendant need not know that the owner is the federal government.

As this history of caselaw on § 641 illustrates, statutory language is often subject to different possible interpretations. Once courts have interpreted the language in a particular way, that interpretation is binding (unless later overruled). But before courts have weighed in on a particular question of statutory interpretation, the law may simply be ambiguous or uncertain. That’s not a reason to panic as a lawyer. Indeed, areas of legal ambiguity are the places where lawyers’ skills are especially important and valuable. When you read legal texts, try not to assume that the first meaning that comes to your mind is the only possible interpretation. Instead, get in the habit of asking yourself, is there another way to read this? A lawyer’s work often involves arguing in favor of one interpretation over another, and to do that well, you need to anticipate other interpretations and be prepared to critique them.

The Voluntary Act “Requirement”

Morissette states that mens rea, or some culpable mental state, is generally required as a component of a crime definition (though again, the Court acknowledges the existence of many exceptions). Is there a similar general requirement for an actus reus, or some culpable action, for criminal liability? Courts sometimes speak of a voluntary act requirement, as discussed below.




Court of Appeals of Arizona, Div. 1, Dept. C
200 P.3d 1037

December 26, 2008

HALL, Judge.

The offense of promoting prison contraband occurs when a person “knowingly takes contraband into a correctional facility or the grounds of such facility.” Ariz. Rev. Stat. (A.R.S.) § 13–2505 (2001). The trial court granted defendant’s post-verdict motion for a judgment of acquittal on the charge of promoting prison contraband, reasoning that defendant did not “voluntarily” take marijuana into the jail following his arrest because it was concealed on his person when he was arrested. The State appeals the trial court’s ruling….

We view the evidence at trial in the light most favorable to upholding the jury’s verdict. The evidence showed that a police officer, responding to a call reporting a possible family fight, felt what he believed to be a pipe in defendant’s coat pocket when he was patting him down for weapons. Defendant told the officer that it was his marijuana pipe and gave the officer permission to remove it…. As the officer was securing defendant in handcuffs, defendant volunteered that he had marijuana in another coat pocket. The officer retrieved a baggie of marijuana weighing 71 milligrams … and completed his pat down before placing defendant in the police car for transportation to the Yavapai County Jail.

Before entering the jail, the police officer asked defendant if he had any drugs or weapons on him, and warned him that he faced additional charges if he took drugs or weapons into the jail. Defendant responded, “No.” The police officer repeated the question and warning … and defendant again responded, “No.” After defendant was brought into the facility to commence the booking process, a detention officer also asked defendant if he had any weapons or drugs on him, and defendant “sort of murmured no.” The detention officer, however, searched defendant’s person and removed a container from one of defendant’s pockets, which, when opened, held 790 milligrams of marijuana. Defendant volunteered, “Oh, man, I worked hard for that chronic,” a slang term for marijuana.

The judge denied defendant’s request for a preliminary instruction that the crime of promoting prison contraband requires proof that “the defendant knowingly and voluntarily took contraband into a correctional facility,” but agreed to add a definition of “voluntary act” to the preliminary instructions. At the close of the State’s case, defendant moved for judgment of acquittal on the charge on the ground that the State had not met its burden “to prove [he] voluntarily brought contraband into the jail.” The judge denied the motion, finding the evidence sufficient to go to the jury “based on the evidence that it was on his person at the time he was booked into jail.” The judge allowed defendant to argue to the jury that no evidence was offered to show defendant engaged in a voluntary act, and instructed the jury that the State must prove that defendant had committed a voluntary act, again defining the term as “a bodily movement performed consciously and as a result of effort and determination.” The jury convicted defendant of promoting prison contraband, possession of marijuana, and possession of drug paraphernalia.

Defendant renewed his motion for judgment of acquittal after trial, relying in his reply on State v. Tippetts, 43 P.3d 455 (Or. Ct. App. 2002)…. The State timely appealed.… We review a trial court’s grant of a post-conviction judgment of acquittal for an abuse of discretion. In conducting our review, we view the facts in the light most favorable to upholding the jury’s verdict….

…. At issue in this appeal is A.R.S. § 13-201 (2001), which provides that “[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing.” The legislature has defined “voluntary act” as “a bodily movement performed consciously and as a result of effort and determination.”

In Tippetts, [an] Oregon appellate court considered the appeal of a defendant who was convicted of introducing marijuana into the jail under similar circumstances. The marijuana was in defendant’s pants pocket when he was arrested. A jail officer asked the defendant if he had drugs or weapons on him before searching him and discovering the marijuana, to which the defendant apparently made no response… The Tippetts court [found that] “the contraband was introduced into the jail only because the police took defendant (and the contraband) there against his will.” … The court further explained that the requirement of a voluntary act dictated “that the mere fact that defendant voluntarily possessed the drugs before he was arrested is insufficient to hold him criminally liable for the later act of introducing the drugs into the jail.” The court also reasoned that the constitutional privilege against self-incrimination prevented “the state from forcing defendant to choose between admitting to possession of a controlled substance and being charged with introducing that substance into a correctional facility.”

In order for the “involuntary act” of entering the jail with drugs to supply the basis for a conviction of conveying drugs into the jail, the [Tippetts] court held, “the involuntary act must, at a minimum, be a reasonably foreseeable or likely consequence of the voluntary act on which the state seeks to base criminal liability” [and] “no reasonable juror could have found that the introduction of contraband into the jail was a reasonably foreseeable consequence of possessing it.” Rather, the court reasoned, under those facts, the police officer’s “act of arresting defendant and transporting him to the jail was an intervening cause that resulted in the marijuana’s being introduced into the jail.”

Courts outside this jurisdiction have split on whether entering a jail involuntarily with drugs in one’s possession can form the basis of a conviction for introducing contraband into the jail. Three jurisdictions have followed the reasoning outlined in Tippetts…. Courts in five jurisdictions, however, have diverged from or rejected the analysis of Tippetts, holding that no more than entry into jail knowing that one is carrying contraband is required by the plain terms of the governing statutes….

We decline to follow Tippetts and its progeny….

In State v. Lara (1995) our supreme court explained that the requirement that an act be “voluntary” is simply a codification of the common law requirement of actus reus, a requirement grounded in the principle that a person cannot be prosecuted for his thoughts alone, and that the voluntary act requirement does not modify the mens rea required for the offense. The court therefore concluded that expert testimony that the defendant suffered from a brain disorder that caused him to fly into a rage “as if by reflex” was insufficient to support a voluntary act instruction. The court stated that the statutory requirement that the conduct include “a bodily movement performed consciously and as a result of effort and determination” simply means that the defendant engage in “a determined conscious bodily movement, in contrast to a knee-jerk reflex driven by the autonomic nervous system.” [In interpreting the “voluntary act” requirement, the court characterized the evidence as showing that Lara was both conscious and “relentless in his effort and determination.”]

Defendant, however, would have us interpret the governing statutes to require that the State not only prove that defendant knew that he was taking marijuana into the jail but that he was entering the jail “voluntarily.” In making this request, defendant confuses the concept of a “voluntary act” with the requisite culpable mental state for the offense. Again, as explained in Lara: “ ‘[V]oluntary act’ means actus reus. On the other hand, ‘voluntary’ has also been used to describe behavior that might justify inferring a particular culpable mental state.” The evidence in this case is more than sufficient to demonstrate that defendant had the necessary mens rea of “knowingly” taking the marijuana into the jail, as evidenced by his statement, “Oh man, I worked hard for that chronic.” If we were to adopt defendant’s interpretation, the statute would only apply to non-inmates, such as employees or visitors, who “voluntarily” enter the jail while carrying drugs. The statute is not so limited and we decline, under the guise of interpretation, to modify the statute in a manner contrary to its plain wording.

Finally, the circumstance here that both the arresting officer and the detention officer informed defendant of the consequences of bringing contraband into the jail and gave him an opportunity to surrender any contraband beforehand highlight that defendant was performing a bodily movement “consciously and as a result of effort and determination” when he carried the contraband into the jail. That defendant chose not to disclose that he possessed an additional amount of marijuana on his person does not somehow absolve him of responsibility for his actions on the theory that providing him an opportunity to choose between admitting to possession of the marijuana and being charged with introducing that substance into the jail violates the self-incrimination clause of the Fifth Amendment. In this regard, we agree with the Court of Criminal Appeals of Tennessee: “…[A]fter being advised of the consequences of bringing drugs into the jail, the Appellant consciously chose to ignore the officers’ warnings…. Under these circumstances, the Appellant was the author of his own fate.” State v. Carr, 2008 WL 4368240 at 5.

Because the evidence in this case sufficiently demonstrated that defendant consciously, with effort and determination, engaged in the prohibited conduct of carrying marijuana into the Yavapai County Jail, the trial court erred in entering a judgment of acquittal. We therefore reverse the judgment of acquittal, direct the court to reinstate the jury’s verdict, and remand for further proceedings consistent with this Opinion.

Check Your Understanding (2-3)

Notes and questions about Alvarado

  1. Two different Arizona statutes are important to this opinion. The first, § 13–2505, simply defines the offense of “promoting prison contraband,” one of the three offenses with which Alvarado was charged, and the only charge that he was challenging in this appeal. To challenge his conviction for promoting prison contraband, Alvarado relied on another Arizona statute, § 13-201, which offers a fairly standard statement of a voluntary act requirement. Arizona’s § 13-201 is similar in some respects to the Model Penal Code’s § 2.01, reprinted below.

    (1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.

    (2) The following are not voluntary acts within the meaning of this Section:

    (a) a reflex or convulsion;
    (b) a bodily movement during unconsciousness or sleep;
    (c) conduct during hypnosis or resulting from hypnotic suggestion;
    (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

    (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

    (a) the omission is expressly made sufficient by the law defining the offense; or
    (b) a duty to perform the omitted act is otherwise imposed by law.

    (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

    Recall that the Model Penal Code is a collection of statutes drafted and published by the American Law Institute. The MPC is not itself binding law, but many parts of it, including § 2.01, have inspired or influenced American legislators.

  2. The term “voluntary” seems to refer to choices and mental states, which can produce confusion between a voluntary act requirement and mens rea analysis, as the Arizona court points out. But courts do distinguish between a “voluntary act requirement,” which purportedly applies to all criminal statutes regardless of whether they require the prosecution to prove specific details of the defendant’s mental state, and mens rea requirements, which vary by statute and may not appear in every single criminal statute. How does the Alvarado court attempt to distinguish between a voluntary act requirement and mens rea requirements?
  3. In criminal law (and in other areas of law), it is often the case that a principle is widely endorsed if stated in general terms, and yet there exists substantial disagreement about how the principle applies to concrete cases. “Criminal liability requires a voluntary act” is one such principle. At least four U.S. jurisdictions have found a separate offense of contraband possession in jail is a violation of a voluntary act requirement if imposed on defendants like Alvarado, who are brought into jail against their will. But at least six other jurisdictions, including Arizona in the opinion you’ve just read, have found conviction of a contraband offense in these circumstances to be permissible even given a voluntary act requirement. In the discussion above of the federal “knowing conversion” statute, we saw that statutory language is often subject to different plausible interpretations. So too with a term such as “voluntary act” – different jurisdictions may interpret it differently. In the face of these different approaches, which “law” should you learn? Just what you see here: you should be aware of the widespread endorsement of the general principle that criminal liability requires a voluntary act, and you should also know that there exist varying interpretations of what that principle means in specific circumstances. Again, a lawyer’s role is often to argue for one interpretation over another. To begin to develop that skill, try to articulate the strongest argument you can for the position that Alvarado’s conviction violates the voluntary act requirement. Then, make the strongest argument you can for the position that his conviction does not violate the voluntary act requirement.
  4. Does a voluntary act requirement mean that the defendant must consciously choose the specific actions described in the statutory language? Or could the requisite “voluntary act” have occurred prior to the conduct specified in the statute? Try to identify the specific voluntary act that makes Alvarado properly convicted, in the court’s view. If Alvarado “worked hard for that chronic” and then chose to put the drugs in his pocket at some point, could that choice serve as the necessary voluntary act? Or was it the failure to tell jail officials about the (additional) drugs that constituted the necessary voluntary act? Notice that MPC § 2.01 identifies conditions under which omissions, or failures to do something, can serve as the basis of criminal liability. We consider omission liability in more detail with Lambert v. California, the next case in this chapter, and then again in Chapter Six.
  5. Is possession even an act? MPC § 2.01 addresses that question as well, and we will consider it in much more detail in Chapter Seven.
  6. In light of the complexities and jurisdictional variations discussed above, is it an accurate description of existing law to say that criminal liability requires an act? One commentator has suggested that criminal law contains at best an “action presumption” rather than an “action requirement.” Antony Duff, Answering for Crime (2007). Another has argued that a better description would identify “a control requirement” rather than “an act requirement” for criminal liability. “Control … is more plausibly regarded as a condition of both moral and criminal responsibility. … The core idea behind the control requirement is that a person lacks responsibility for those states of affairs he is unable to prevent from taking place or obtaining.” Douglas Husak, Does Criminal Liability Require an Act?, in The Philosophy of Criminal Law: Selected Essays (2010).
  7. The enforcement decision: when he was brought to jail, Ivan Alvarado was already facing marijuana and drug paraphernalia possession charges based on the pipe and baggie discovered at the location of his arrest. When officers discovered additional marijuana after Alvarado entered the jail, why did they bring a new and separate charge of “promoting prison contraband” instead of adding another count of marijuana possession? Chapter Three discusses the considerations, including applicable penalties, that can influence these types of charging decisions.
  8. The Fifth Amendment of the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This provision, often called the privilege against self-incrimination, has been interpreted to restrict the ability of police or other state officials to interrogate suspects or otherwise demand answers to questions about criminal conduct. Alvarado argued that to punish him for failing to disclose the marijuana in his pocket would violate his Fifth Amendment rights. The Arizona state court rejected that argument without saying much about it, and the U.S. Supreme Court has not ruled directly on this issue. We won’t dive deeply into Fifth Amendment doctrine in this course, but keep in mind that just as there are numerous interpretations of which acts are “voluntary,” there are differing interpretations of what constitutes “compulsion.”
  9. A Pennsylvania man returned home from one job around midnight and left for a second job around 6:30 am, staying awake through the intervening hours. On his way home from the second job, at about 7:00 pm, he fell asleep while driving, crossed into the wrong lane, and struck another vehicle. He was found guilty of the offense of careless driving. Was this conviction based on a voluntary act? What was the act? See Commonwealth v. Cathey, 435 Pa. Super. 162 (1994).

Criminalization and the U.S. Constitution

The discussion of State v. Alvarado above simply took for granted that Arizona could criminalize the possession of marijuana, and more specifically, the possession of marijuana in a jail or prison. But in recent years, many jurisdictions have reconsidered their earlier choices to criminalize marijuana possession. Is this choice, or any other choice to criminalize or decriminalize specific conduct, simply a matter of legislative prerogative? As a legislature makes criminal laws, is the legislature itself bound by any higher law – such as the U.S. Constitution? Various provisions of the Constitution identify individual rights or set limits to government power. Do any of these provisions constrain criminalization choices?

There are at least three ways in which the federal constitution might limit criminalization. One concerns not the what question (what conduct can be criminalized) but rather the how question: how must a criminalization decision be expressed? Must a criminal statute fit a specified form? The Supreme Court has interpreted the Fourteenth Amendment’s due process clause to require that criminal statutes are written in sufficiently clear language to give adequate notice of the prohibited conduct. This doctrine, often called the void-for-vagueness doctrine, is discussed in Chapter Three on enforcement decisions, since one of the doctrine’s rationales is that clear statutes are needed to guide enforcement choices.

A second type of constitutional limitation on criminalization does address the what question.  Guarantees of specific individual rights have been interpreted to prevent certain protected acts from being designated as crimes. For example, the First Amendment’s protection of free speech prevents states from criminalizing some types of expressive conduct, like burning a flag. And under the Second Amendment as most recently interpreted, individuals possess a right to bear arms that prevents at least some acts of gun possession from being designated as criminal.  This Second Amendment constraint on criminalization is discussed more in Chapter Seven. Finally, the path from Roe v. Wade (1973) to Dobbs v. Jackson Women’s Health Organization (2022) further illustrates the way that an individual right can limit criminalization — and the broad power to criminalize that legislatures enjoy in the absence of a recognized constitutional right. When the Supreme Court recognized a constitutional right to terminate a pregnancy in Roe, many state laws that criminalized abortion became unconstitutional. Those who wanted to re-criminalize abortion began a long and ultimately successful campaign to overrule Roe. Once the Court did overrule Roe with Dobbs in 2022, many states promptly enacted criminal prohibitions of abortion.

The remainder of this chapter addresses a third type of constitutional limitation on criminalization choices. In a few cases decided around the middle of the 20th century, the Supreme Court seemed to find a principle somewhat similar to a voluntary act requirement, or perhaps a control requirement, implicit in the federal constitution. Lambert v. California (1957), reprinted below, reversed a conviction for failing to register as a felon, noting that the state law imposed criminal liability without “any activity whatever” and even when the defendant did not know of an obligation to register. A few years later, Robinson v. California (1962) found that a state statute that made it a crime to “be addicted to narcotics” was a criminalization of disease that violated the Eighth Amendment. In the immediate aftermath of these decisions, some commentators thought the Supreme Court had established “a broad, constitutionally required voluntary-act norm.” William Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 68 (1997).

But Robinson was limited, though not explicitly overruled, by a divided Court in Powell v. Texas (1968), which allowed Texas to convict a chronic alcoholic of the crime of public intoxication. The Powell plurality emphasized that the crime required the voluntary “conduct” of a public appearance, and a fifth Justice suggested that the government would not be able to apply the statute to a homeless alcoholic who had no opportunity to avoid public intoxication. Powell did not explicitly reject the idea that a voluntary act, or voluntary conduct, was a constitutionally necessary component of criminal liability. But it treated “appearance in public” as an “act,” or conduct, that may be punished without violating the constitution.

Supreme Court decisions, like criminal statutes, constitutional provisions, and other legal texts, are susceptible to varying interpretations. (Or, to put it in the terms used in Chapter One, a legal text does not always influence subsequent legal decisions in precisely the ways that the text’s authors might hope.) To determine whether, or how much, the Constitution constrains criminalization choices, it is important to be aware of the Court’s opinions and also the ways these opinions have been interpreted. The remainder of this chapter is designed to help you see the interaction between Supreme Court opinions and decisions by lower courts, including state courts. Below, you will find the text of Lambert v. California followed by some excerpts of recent cases that interpret and apply Lambert. After that, instead of presenting Robinson and Powell independently, this section presents a state court opinion that summarizes and applies those two Supreme Court cases.

[The relevant statutory text for Lambert is omitted here, since it is reprinted in the first few paragraphs of the Supreme Court’s opinion below.]

Virginia LAMBERT, Appellant



Supreme Court of the United States
355 U.S. 225

Decided Dec. 16, 1957

Mr. Justice DOUGLAS delivered the opinion of the Court.

Section 52.38(a) of the Los Angeles Municipal Code defines ‘convicted person’ as follows:

‘Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.’

Section 52.39 provides that it shall be unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.

Section 52.43(b) makes the failure to register a continuing offense, each day’s failure constituting a separate offense.

Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law. The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that s 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. … The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. … The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.

The registration provision, carrying criminal penalties, applies if a person has been convicted ‘of an offense punishable as a felony in the State of California’ or, in case he has been convicted in another State, if the offense ‘would have been punishable as a felony’ had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.

We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. But we deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Cf. United States v. Balint; United States v. Dotterweich. The rule that ‘ignorance of the law will not excuse’ is deep in our law, as is the principle that of all the powers of local government, 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. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. [The Court cited various civil cases.] [T]he principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.

Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too 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. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.


Mr. Justice BURTON, dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.

The present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint: ‘Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.’

Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State’s ‘police power.’ Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element—some consciousness of wrongdoing and knowledge of the law’s command—as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.

But what the Court here does is to draw a constitutional line between a State’s requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance—a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality….

If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents—a derelict on the waters of the law. Accordingly, I content myself with dissenting.

Notes and questions on Lambert (and its progeny)

  1. The California registration requirement applied to “convicted persons,” a term defined to describe any person convicted of an offense punishable as a felony. But what is a felony? In the United States, this term is used to designate any crime with a potential punishment of more than one year imprisonment. Felonies are often distinguished from misdemeanors, which typically have a maximum sentence of one year. The felony designation turns on the maximum authorized punishment, not the punishment actually imposed.
  2. The Supreme Court emphasizes three features of this case: a) the defendant apparently did not know of her duty to register, and the statute did not require proof of knowledge; b) the statute criminalized “wholly passive” conduct, “unlike the commission of acts”; and c) the statute did not address obviously blameworthy conduct (or an obviously blameworthy omission), but rather it was a measure established “for the convenience of law enforcement agencies.” Are all three considerations necessary to the outcome? Is any single one of these considerations sufficient to the outcome?
  3. The Lambert Court held that the Los Angeles registration requirement was a violation of the Due Process Clause of the Fourteenth Amendment. That clause provides that no state shall “deprive any person of life, liberty, or property without due process of law.” This language, too, is subject to many different interpretations, as you will see in a Constitutional Law course! For purposes of learning criminal law, you should know that another constitutional provision imposes a somewhat different requirement related to notice. Article I, section 9 of the Constitution provides that “No Bill of Attainder or ex post facto Law shall be passed.” The Supreme Court has interpreted this language to prohibit retrospective criminal laws, or laws used to punish activity that took place before the law was enacted. The need for fair notice is often cited as a rationale for the prohibition of ex post facto legislation. However, neither Lambert nor ex post facto doctrine requires that a defendant have actual notice of the relevant criminal law in order to be subject to criminal liability.
  4. Another notice question concerns criminalization in relation to enforcement: If this particular defendant’s ignorance of the registration requirement was indeed essential to the outcome in Lambert, then perhaps the case is not really a limitation on the power to criminalize. Could the Court be objecting instead to the enforcement decision that was made here – the decision to prosecute a particular defendant who did not know of the registration requirement? But if the California law did not explicitly require knowledge of a duty to register, then is there a problem with the criminalization decision after all? The usual rule is that “ignorance of the law is no excuse” – that is, a defendant’s ignorance of a particular criminal prohibition is usually irrelevant to his or her liability for violating that prohibition. Here, it seems to be ignorance of the rule in combination with the other factors mentioned above (the criminalization of passive conduct, and the regulatory nature of the offense) that seems to generate the due process violation.
  5. Omission liability will be examined in more detail in Chapter Six, but it is important to understand now that Lambert does not categorically prohibit the imposition of criminal punishment for failures to act. The guiding principle is that a person may be punished for a failure to act in situations in which the law imposes a duty to act. The Los Angeles ordinance imposed a duty to register, and by itself, that duty was not a due process violation. Again, it appears to be the combination of various factors that leads the Court to find a due process violation here.
  6. Notice that in Lambert the Court disclaims William Blackstone’s claim that “a vicious will” is essential to a crime, though the Court had quoted Blackstone for just that proposition in its Morissette opinion in 1952. Shortly after Lambert, one commentator wrote that “Mens rea is an important requirement, but it is not a constitutional requirement, except sometimes.” Herbert Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107.
  7. Justice Frankfurter’s dissent quotes Balint (also discussed in Morissette) to distinguish between “regulatory measures” and “mala in se” crimes. Mala in se, typically translated as “wrong in itself,” is a label often applied to murder, rape, theft, and other crimes widely viewed as inherently wrongful. Mala in se crimes are often distinguished from mala prohibita (or malum prohibitum) offenses, crimes that address conduct that is “wrong (only) because it is prohibited,” or because a ruling authority has seen fit to regulate it. We might not think it is inherently wrongful to fail to file a registration with the state about one’s past criminal convictions (especially if the state imposed those convictions and is presumably already aware of them). But if the state has chosen to require registration by those with felony convictions, then to fail to register is malum prohibitum. Few legal outcomes depend on the classification of a crime as malum in se or malum prohibitum, but it is useful to know these terms and understand that in some circumstances, courts might evaluate an offense differently if they think it falls in one category rather than the other.
  8. Justice Frankfurter’s dissent predicted that Lambert would be “an isolated deviation … a derelict upon the waters of the law.” About six decades later, it appears that Frankfurter was right. One 2020 study found that Lambert had been cited in 825 federal and state cases, but in almost all of these cases, courts distinguished Lambert or interpreted it narrowly, ultimately upholding registration requirements and other criminal laws arguably similar to the one applied to Virginia Lambert. See Cynthia Aikon, The Lost Promise of Lambert v. California, 49 Stetson L. Rev. 267, 278-280 (2020). A sampling of Lambert discussions from state and lower federal courts is below:

    “We find the registration ordinance in Lambert to be readily distinguishable from the sex offender registration statute at issue in the case at hand. In Lambert, the registration requirement was a general municipal ordinance, whereas our Sex Offender Registry Act is a statewide registration program. Unlike the registration requirement in Lambert, the sex offender registration requirement is directed at a narrow class of defendants, convicted sex offenders, rather than all felons. …  And, perhaps most importantly, instead of serving as a general law enforcement device, as the United States Supreme Court found the City of Los Angeles’ felon registration ordinance, our statute was specifically enacted as a public safety measure based on the Legislature’s determination that convicted sex offenders pose an unacceptable risk to the general public once released from incarceration.” State v. Latimore, 700 S.E. 2d 456, 461 (Ct. App. S.C. 2010) (upholding conviction for failure to register as sex offender).

    “[W]hile Beckley’s failure to register is passive conduct, we find that passive conduct in and of itself is not controlling. Lambert stressed the innocent nature of the defendant’s conduct, which is not present in the instant case. A convicted sex offender’s failure to inquire into the state’s laws on registration is not wholly innocent conduct.” State v. Beckley, 2004 WL 1277358 (Ct. App. Ohio 2004) (upholding conviction for failure to register as a sex offender).

    “That Hester had no actual notice of SORNA [a federal sex offender registration statute] is not sufficient to render his prosecution pursuant to that statute a violation of his due process rights. … Like our sister circuits, we find [Lambert’s reference to] ‘circumstances which might move one to inquire as to the necessity of registration’ to be critical. … Hester knew he had to update his registration [under New York state law]. Accordingly, Hester’s reliance on Lambert is misplaced. The fact that Hester did not receive notice of SORNA is not sufficient to render his prosecution for failure to register as a sex offender under [SORNA] a violation of his due process rights.” United States v. Hester, 589 F.3d 86, 92-93 (2nd Cir. 2009) (following other federal courts in rejecting Lambert challenge to the federal Sex Offender Registration and Notification Act, on the grounds that persons convicted of sex offenses should know of or ask about duties to register).

    “[I]n the event that a defendant’s conduct is not “wholly passive,” because it arises from either the commission of an act or a failure to act under circumstances that reasonably should alert the defendant to the likelihood that inaction would subject him or her to criminal liability, Lambert simply does not apply.” State v. Miller, 800 S.E.2d 400, 407 (N.C. 2017) (rejecting challenge to a new state law creating strict liability felony offense for a person previously convicted of possessing methamphetamine to possess any product containing pseudoephedrine).

    Different parts of the federal constitution could impose different kinds of constraints on criminalization. Lambert involved a due process challenge: a claim that California’s felon registration statute violated the constitutional requirement that no state shall deprive a person of life, liberty or property without “due process of law.” The Ex Post Facto Clause imposes a different constraint, though one that is concerned mainly with the timing of criminalization and less with questions about what conduct (or non-conduct) is criminalized. Still another potential limit on a state’s power to criminalize conduct comes from the Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments.” As noted above, the Supreme Court found the Eighth Amendment to prohibit the criminalization of narcotics addiction in Robinson v. California (1962), but then the Court limited the apparent scope of Robinson a few years later in Powell v. Texas (1968), which permitted the state of Texas to convict a person suffering from alcoholism of the crime of “public intoxication.” Consider the application of Robinson and Powell in People v. Kellogg, below.




Court of Appeal, Fourth District, Division 1, California
119 Cal.App.4th 593

June 17, 2004


Thomas Kellogg contends his public intoxication conviction constitutes constitutionally proscribed cruel and/or unusual punishment because his status as an involuntarily homeless, chronic alcoholic makes it impossible for him to avoid being intoxicated in public. We reject this contention. The public intoxication statute … is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way. The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk. Although criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg’s position, the Legislature’s policy choice to retain the misdemeanor offense of public intoxication to provide for the public welfare does not rise to the level of cruel and/or unusual punishment even as applied to a homeless, chronic alcoholic.

The facts of this case are essentially undisputed. On January 10, 2002, Officer Heidi Hawley, a member of the Homeless Outreach Team, responded to a citizen’s complaint of homeless persons camping under bridges and along State Route 163. She found Kellogg sitting on the ground in some bushes on the embankment off the freeway. Kellogg appeared inebriated and was largely incoherent. He was rocking back and forth, talking to himself and gesturing. Officer Hawley arrested Kellogg for public intoxication. He had $445 in his pocket from disability income….

After his arrest on January 10, 2002, Kellogg posted $104 cash bail and was released. Because he was homeless, he was not notified of his court date and he did not appear for his January 31 arraignment. A warrant for his arrest was issued on February 11, 2002; he was arrested again for public intoxication on February 19 and 27…. After a pretrial discussion in chambers about Kellogg’s physical and psychological problems, the trial court conditionally released Kellogg on his own recognizance and ordered that he be escorted to the Department of Veterans Affairs Hospital by Officer Hawley. He was not accepted for admission at the hospital and accordingly was returned to county jail.

Kellogg pleaded not guilty and filed a motion to dismiss the charges based on his constitutional right to be free of cruel and unusual punishment.

[At a pretrial hearing on the motion to dismiss,] Psychologist Gregg Michel and Psychiatrist Terry Schwartz testified on behalf of Kellogg. These experts explained that … [i]n addition to his severe alcohol dependence, which causes him to suffer withdrawal symptoms if he stops drinking, [Kellogg] suffers from dementia, long-term cognitive impairment, schizoid personality disorder, and symptoms of posttraumatic stress disorder. He has a history of seizure disorder and a closed head injury, and reported anxiety, depressive symptoms and chronic pain. He is estranged from his family. Physically, he has peripheral edema, gastritis, acute liver damage, and ulcerative colitis requiring him to wear a colostomy bag. To treat his various conditions and symptoms he has been prescribed Klonopin and Vicodin and may suffer from addiction to medication.

Dr. Michel opined that Kellogg was gravely disabled and incapable of providing for his basic needs, and that his degree of dysfunction was life-threatening. … Drs. Michel and Schwartz opined that Kellogg’s homelessness was not a matter of choice but a result of his gravely disabled mental condition….

Dr. Schwartz questioned whether a long-term, locked residential treatment setting was a viable option as density conditions (often four patients in a room) and group participation requirements were incompatible with Kellogg’s schizoid personality condition. Dr. Schwartz stated that Kellogg had been offered various forms of treatment and housing but had not made use of those resources; she posited that unless resources were offered in a different way, there would be no change in outcome….

In Dr. Michel’s view, Kellogg’s incarceration provided some limited benefit in that he obtained medication for seizures, did not have access to alcohol, received some treatment, and was more stable during incarceration than he was when homeless on the streets. However, such treatment was insufficient to be therapeutic, and medications prescribed for inmate management purposes can be highly addictive and might not be medically appropriate. Dr. Schwartz opined that incarceration was not an effective form of treatment…

Testifying for the prosecution, Physician James Dunford stated that at the jail facility, medical staff assess the arrestee’s condition and provide treatment as needed…. Dr. Dunford opined that between March 2 and 7, Kellogg’s condition had improved because his seizure medicine was restarted, his alcohol withdrawal was treated, his vital signs were stable, his colostomy bag was clean and intact, his overall cleanliness was restored, and he was interacting with people in a normal way.

… Finding that before his arrest Kellogg was offered assistance on at least three occasions and that his medical condition improved while in custody, the court denied the motion to dismiss the charges.

On April 2, 2002, the court found Kellogg guilty of one charge of violating section 647 arising from his conduct on January 10, 2002. At sentencing on April 30, the probation officer requested that the hearing be continued for another month so Kellogg could be evaluated for a possible conservatorship. Kellogg objected to further incarceration as violating the Eighth Amendment and opposed a conservatorship. Pointing to Dr. Michel’s assessment that Kellogg was not a suitable candidate for conservatorship, defense counsel argued that the conservatorship program did not have the resources to handle a person with the combination of Kellogg’s problems. Further, because of his medical complications, no recovery or board and care home felt comfortable accepting him. Kellogg requested probation to allow him to participate in the VA’s rehabilitative program…. The prosecution agreed with the defense suggestion that a concerted effort be made to place Kellogg in the VA program.

After expressing the difficult “Hobson’s choice” whereby there were no clear prospects presented to effectively assist Kellogg, the court sentenced him to 180 days in jail, with execution of sentence suspended for three years on the condition that he complete an alcohol treatment program and return to court on June 4, 2002, for a progress review.

After his release from jail, defense counsel made extensive, but unsuccessful, efforts to place Kellogg in an appropriate program and to find a permanent residence for him. On May 25 and 28, 2002, he was again arrested for public intoxication. After he failed to appear at his June 4 review hearing, his probation was summarily revoked. Kellogg was rearrested on June 12. After a probation revocation hearing, Kellogg’s probation was formally revoked and he was ordered to serve the 180–day jail sentence. The court authorized that his sentence be served in a residential rehabilitation program. However, no such program was found….

On July 11, 2003, the appellate division of the superior court affirmed the trial court’s denial of Kellogg’s motion to dismiss on Eighth Amendment grounds. We granted Kellogg’s request to have the matter transferred to this court for review.

Section 647(f) defines the misdemeanor offense of disorderly conduct by public intoxication as occurring when a person “is found in any public place under the influence of intoxicating liquor … in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor … interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” Kellogg argues that this statute, as applied to him, constitutes cruel and/or unusual punishment prohibited by the Eighth Amendment to the federal Constitution [and the California state constitution]. He asserts that his chronic alcoholism and mental condition have rendered him involuntarily homeless and that it is impossible for him to avoid being in public while intoxicated. He argues because his public intoxication is a result of his illness and beyond his control, it is inhumane for the state to respond to his condition by subjecting him to penal sanctions.

It is well settled that it is cruel and unusual punishment to impose criminal liability on a person merely for having the disease of addiction. In Robinson v. California (1962), the United States Supreme Court invalidated a California statute which made it a misdemeanor to “be addicted to the use of narcotics.” The Robinson court recognized that a state’s broad power to provide for the public health and welfare made it constitutionally permissible for it to regulate the use and sale of narcotics, including, for example, such measures as penal sanctions for addicts who refuse to cooperate with compulsory treatment programs. But the court found the California penal statute unconstitutional because it did not require possession or use of narcotics, or disorderly behavior resulting from narcotics, but rather imposed criminal liability for the mere status of being addicted. Robinson concluded that just as it would be cruel and unusual punishment to make it a criminal offense to be mentally ill or a leper, it was likewise cruel and unusual to allow a criminal conviction for the disease of addiction without requiring proof of narcotics possession or use or antisocial behavior.

In Powell v. Texas (1968), the United States Supreme Court, in a five-to-four decision, declined to extend Robinson’s holding to circumstances where a chronic alcoholic was convicted of public intoxication, reasoning that the defendant was not convicted merely for being a chronic alcoholic, but rather for being in public while drunk. That is, the state was not punishing the defendant for his mere status, but rather was imposing “a criminal sanction for public behavior which may create substantial health and safety hazards, both for [the defendant] and for members of the general public….” In the plurality decision, four justices rejected the proposition set forth by four dissenting justices that it was unconstitutional to punish conduct that was “ ‘involuntary’ or ‘occasioned by a compulsion.’ ”

The fifth justice in the Powell plurality, Justice White, concurred in the result only, concluding that the issue of involuntary or compulsive behavior could be pivotal to the determination of cruel and unusual punishment, but the record did not show the defendant (who had a home) suffered from any inability to refrain from drinking in public. Justice White opined that punishing a homeless alcoholic for public drunkenness could constitute unconstitutional punishment if it was impossible for the person to resist drunkenness in a public place. … Kellogg argues Justice White, who was the deciding vote in Powell, would have sided with the dissenting justices had the circumstances of his case (i.e., an involuntarily homeless chronic alcoholic) been presented, thus resulting in a finding of cruel and unusual punishment by a plurality of the Supreme Court.

We are not persuaded. Although in Robinson the United States Supreme Court held it was constitutionally impermissible to punish for the mere condition of addiction, the court was careful to limit the scope of its decision by pointing out that a state may permissibly punish disorderly conduct resulting from the use of narcotics. This limitation was recognized and refined by the plurality opinion in Powell, where the court held it was permissible for a state to impose criminal punishment when the addict engages in conduct which spills into public areas. As stated in Powell and expressly reflected in the terms of section 647(f), public intoxication is a criminal offense because it can endanger the welfare of the intoxicated individual and the public….

Here, the reason Kellogg was subjected to misdemeanor culpability for being intoxicated in public was not because of his condition of being a homeless alcoholic, but rather because of his conduct that posed a safety hazard. If Kellogg had merely been drunk in public in a manner that did not pose a safety hazard (i.e., if he was able to exercise care for his own and the public’s safety and was not blocking a public way), he could not have been adjudicated guilty under section 647(f). The state has a legitimate need to control public drunkenness when it creates a safety hazard. It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets, and other such public areas where they could be trampled upon, tripped over, or run over by cars. The facts of Kellogg’s public intoxication in the instant case show a clear potential for such harm. He was found sitting in bushes on a freeway embankment in an inebriated state. It is not difficult to imagine the serious possibility of danger to himself or others had he wandered off the embankment onto the freeway.

… [W]e conclude that the California Legislature’s decision to allow misdemeanor culpability for public intoxication, even as applied to a homeless chronic alcoholic such as Kellogg, is neither disproportionate to the offense nor inhumane. In deciding whether punishment is unconstitutionally excessive, we consider the degree of the individual’s personal culpability as compared to the amount of punishment imposed. To the extent Kellogg has no choice but to be drunk in public given the nature of his impairments, his culpability is low; however, the penal sanctions imposed on him under section 647(f) are correspondingly low. Given the state’s interest in providing for the safety of its citizens, including Kellogg, imposition of low-level criminal sanctions for Kellogg’s conduct does not tread on the federal or state constitutional proscriptions against cruel and/or unusual punishment.

… In presenting his argument, Kellogg points to the various impediments to his ability to obtain shelter and effective treatment, apparently caused by a myriad of factors including the nature of his condition and governmental policies and resources, and asserts that these impediments do not justify criminally prosecuting him. He posits that the Eighth Amendment “mandates that society do more for [him] than prosecute him criminally and repeatedly incarcerate him for circumstances which are beyond his control.”

We are sympathetic to Kellogg’s plight; however, we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies. It may be true that the safety concerns arising from public intoxication can be addressed by means of civil custody rather than penal sanctions. Indeed, the Legislature has provided alternatives to penal sanctions against persons who are drunk in public, including civil protective custody and release without criminal processing. However, the Legislature has not seen fit to remove the option of criminal prosecution and conviction. Absent a constitutional violation, it is not our role to second-guess this policy determination.

Kellogg does not contend he was been arbitrarily deprived of alternatives to criminal prosecution in this case… rather, he broadly challenges his misdemeanor conviction as, in and of itself, being cruel and unusual punishment. Thus, our sole task in this appeal is to determine whether Kellogg’s conviction constituted cruel and/or unusual punishment. As set forth above, we find no such constitutional infirmity.

The judgment is affirmed.

McDONALD, J., dissenting.

…. The majority opinion appears to be based on the premise that Kellogg’s conduct posed a safety hazard and showed a clear potential for harm and therefore his conviction was not merely for being intoxicated in public. Section 647(f) punishes a person for being intoxicated in public “in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or … interferes with or obstructs … the free use of any street, sidewalk, or other public way.” However, the trial court did not find and the record is devoid of evidence showing that Kellogg was unable to care for his own safety or the safety of others or interfered with or obstructed any street, sidewalk or other public way. The record shows only that Kellogg was sitting under a bush on a highway embankment. That evidence is insufficient to support a finding he was actually interfering with or obstructing that highway or was unable to care for his or others’ safety. The majority opinion permits the mere potential or possibility that Kellogg would interfere with or obstruct that highway or become unable to care for his or others’ safety to be sufficient for a 647(f) conviction, which is therefore a conviction for simply being homeless and intoxicated in public.

… [Additionally, the] record does not support the People’s assertion that Kellogg’s homelessness was by choice. In support of their assertion, the People cite the testimony of Officer Hawley that she had offered Kellogg assistance on three occasions and each time he declined help. Considering the extensive expert testimony in the record regarding Kellogg’s chronic alcoholism, dementia, severe cognitive impairment, and schizoid personality disorder, his rejection of generalized offers of assistance cannot be viewed as a “choice” or voluntary decision by Kellogg to remain homeless.

Although the People assert that incarceration of Kellogg provides him with treatment similar to or better than he would receive were he civilly committed, the quality of his treatment in jail does not prevent his criminal conviction from constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. As Justice Fortas stated in his dissenting opinion in Powell:

“It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a ‘revolving door’—leading from arrest on the street through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest. The jails, overcrowded and put to a use for which they are not suitable, have a destructive effect upon alcoholic inmates.”

In any event, the evidence in the record does not support the People’s assertion.

… I would reverse the judgment.

Notes and questions on Kellogg

  1. Distinguishing precedent: how does the Kellogg court distinguish between the criminalization of status or condition, which it says is unconstitutional under Robinson, and the criminalization of conduct? More specifically, why is addiction properly classified as a condition, while public intoxication is properly classified as conduct? How do threats to public safety play into the analysis? Is there any circumstance in which public intoxication would not pose a threat to public safety? Is there any circumstance in which narcotics addiction would not pose a threat to public safety?
  2. The court classifies Kellogg’s public intoxication as conduct, but does the court view his conduct as voluntary? Does the majority opinion dispute the claim that Kellogg is unable to avoid violating this statute?
  3. As you think about voluntariness and choice, consider the choices available to the police, prosecutors, and trial court. The trial court said it faced a “Hobson’s choice,” a phrase often used to describe a situation with no attractive alternative. But more precisely, a Hobson’s choice is a take-it-or-leave-it situation. Hobson was an English stable owner who rented horses. Rather than let his customers choose their favorite horse, he required them to take the horse nearest the stable door or none at all. In this case, the medical testimony seems to indicate that the available non-punitive treatment options are unlikely to help Kellogg recover. Nevertheless, is “leave it” still an option? Could prosecutors or courts simply decline to impose criminal sanctions, even in the absence of a non-criminal intervention strategy?
  4. Recall four standard rationales for punishment discussed earlier in this chapter: deterrence, retribution or desert, incapacitation, and rehabilitation. Are any of these rationales applicable here? The designation of public intoxication as criminal seems unlikely to deter someone in Kellogg’s position. Does a criminal sanction give Kellogg his just deserts? What does Kellogg deserve, in your view? Incarceration does incapacitate him, in that it renders him unable to access alcohol or appear in public while intoxicated (or indeed, to appear in public at all). And state officials argued that incarceration also provided Kellogg with rehabilitative treatment that was as good or better than the treatment he would receive outside the criminal legal system, though this claim was contested. As you think about this case, consider both the criminalization decision—the choice to make public intoxication into a criminal offense—and the enforcement and conviction decisions—the choice to apply the public intoxication statute to Kellogg in particular. A legislature could choose to criminalize a broad category of conduct, public intoxication, without seeking to impose criminal sanctions on everyone who is intoxicated in public. Instead, the rationale for criminalization could be a desire to empower enforcement officials to exercise discretion and pursue convictions and punishment for some subset of people who are publicly intoxicated – people who, in the enforcement official’s judgment, are in particular need of deterrence, incapacitation, or rehabilitation, or people who are especially deserving of punishment.
  5. Criminalization of acts, or of persons? Throughout most of this chapter, we have spoken of criminalization as the classification of an act as criminal. When, if ever, should the designation “criminal” be applied to a person rather than an act? The U.S. Supreme Court’s opinion in Robinson v. California, discussed by the Kellogg court, is sometimes interpreted to prohibit “the criminalization of status.” In Robinson, the Court struck down a statute that made it a crime to “be addicted to the use of narcotics.” The Court explained,

    This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

    It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

    Robinson, 370 U.S. 660, 666 (1962). The Robinson Court was focused on the question whether an act, as opposed to a condition or a status, can be designated as a criminal offense. The Court does not address the separate issue of criminalization as itself a status: once acts are properly criminalized, persons convicted of those acts are often designated as “criminals” (or “felons,” or “offenders”), and as such, these persons hold a different social and legal status from “law-abiding citizens.”

  6. Criminal law and disability: In this case, all parties seemed to agree that Kellogg had significant disabilities and his public intoxication was a product of those disabilities. Although Kellogg may have had health issues more extreme than the average defendant, rates of mental illness and other health problems are much higher among convicted and imprisoned persons than among the general population. When, if ever, should disability make a difference to criminal liability? When, if ever, should criminal law be used as a response to disability? We return to some of these issues later in this book when we consider the insanity defense and claims of diminished capacity.
  7. Democracy, the Constitution, and criminal law decisions: Officer Hawley approached Kellogg on January 10 in response to a citizen’s complaint about homeless persons. Suppose that most citizens of San Diego want public intoxication to be criminal, and they want police officers to use the public intoxication statute to remove Kellogg and others like him from public spaces. Is there any reason courts and other public institutions should not defer to the will of the majority? Constitutional challenges to legislation often involve a counter-majoritarian claim, or an argument that the Constitution prevents the majority from making certain choices.
  8. Criminalization decisions and other public decisions: The government makes many, many policy choices beyond the choice to criminalize. It enacts and enforces civil laws, it decides whether to provide welfare benefits or other goods (including housing and health care) to citizens, it makes funding decisions, and much more. These decisions will affect citizens’ well-being and behavior; the decisions may make harmful conduct more or less likely. Whether criminalization seems appropriate may depend upon one’s frame of reference – whether we consider the potentially criminal conduct in isolation, or the broader social and political context in which the conduct takes place. The Kellogg court focuses on the question whether public intoxication can be conceived as “conduct.” The court declines to consider whether imposing criminal sanctions for public intoxication is the best policy choice: “we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies.” This argument about the appropriate role of the judiciary is fairly common. It rests on a dichotomy between “legal” questions that a court is empowered to answer, such as whether public intoxication is conduct, and “policy” questions that lie beyond the court’s power, such as whether criminal sanctions are a sensible response to problems of homelessness and alcoholism. The very characterization of an issue as a “legal” question or a “policy” question is often contested, and one crucial skill for a lawyer is the ability to frame issues in a way that will convince a court that it has the power to resolve those issues.

End of Chapter Review

Check Your Understanding (2-4)


  1. Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: “Even a dog distinguishes between being stumbled over and being kicked.” [Fn. by the Court)