Some unlawful acts are considered civil offenses, for which the payment of money to compensate for an injury is sufficient penance.  But other illegal acts are deemed crimes, the commission of which indelibly brands the defendant a “criminal” and exposes him to the loss of personal liberty — jail.

Why are some unlawful acts considered civil offenses while others are crimes?  One answer is simple, yet unsatisfying: a crime is any act that Congress or a state legislature defines as a crime.  For example, Connecticut law defines a crime as any misdemeanor or a felony.  In turn, misdemeanors and felonies are defined as offenses punishable by prison terms of, respectively, up to one year and exceeding one year.

A more satisfying answer requires us to examine the history of English common law, also known as judge-made law.  The common law developed in England from the early Middle Ages through the 19th century.  The American colonies relied heavily on English common law in developing their own legal systems.  From the history of the common law we learn that “actus non facit reum nisi mens sit rea,” which translates as “an act does not make a person guilty unless mind is also guilty.”

Thus, centuries of common law teach us that a crime consists of two essential elements: (1) an illegal act, called the “actus reus,” and (2) a guilty or blameworthy state of mind, called the “mens rea.”  (Reese Witherspoon fans may recall her Legally Blonde character, Elle Woods, using the latter term to great effect during the amusing trial scene towards the end of the movie.  Elle (to the judge): “First of all I would like to point out that there is no proof in this case but there is a complete lack of mens rea, which by definition tells us that there can be no crime without vicious will.”  Judge (to Elle): “I am aware of the meaning of mens rea. What I am unaware of is why you’re giving me a vocabulary lesson instead of questioning your witness.”)

To illustrate, imagine a person driving a car down a poorly lit city street one night, keeping well within the speed limit and exercising all due caution while driving.  A drunk man wearing dark clothing darts out into the middle of the street from between two parked cars.  The driver of the car has no time to react.  He hits the man and, unfortunately, kills him.  The driver has committed a homicide, i.e., the killing of one human being by another.  But he hasn’t committed a crime.  Why not? Because hitting the man wasn’t the product of a guilty or blameworthy mind.  The driver didn’t intend to kill the man, nor did the driver act recklessly or even negligently.  What happened was a tragic accident, not a crime.

U.S. Supreme Court Justice Robert H. Jackson described the deep historical nexus between the “evil-doing hand” and the “evil-meaning mind” in Morissette v. United States (1952):

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. Unqualified acceptance of this doctrine by English common law in the 18 century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.” Common-law commentators of the Nineteenth Century early pronounced the same principle, although a few exceptions not relevant to our present problem came to be recognized.

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. As the states 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 historical understanding of a crime as requiring both an actus reus and a mens rea has come under considerable pressure over the past 150+ years.  The Industrial Revolution, increased urbanization, roads and highways with vehicles traveling at previously unheard-of velocities, and many other modern developments “called for health and welfare developments undreamed of in simpler times,” as Justice Jackson also explained in Morissette.  Congress and state legislatures responded by enacting new laws subjecting violators to criminal sanctions, but did so on occasion without explicitly requiring any mens rea.

Imposing legal liability based solely on the doing of a forbidden act, without any intent, recklessness or other state of mind requirement, is known as strict liability.  Strict liability in the civil context, while once controversial, isn’t any longer.  Imposing strict liability in the criminal context, however, results in branding the violator a criminal even though he or she may have acted without a guilty mind.

Given the understanding, deeply embedded in our legal history, that a crime consists of an illegal act coupled with a guilty mind, one may fairly ask whether strict liability crimes are unconstitutional.  The short answer at present is no, yet legal scholars continue to debate the question.  The courts, too, find strict criminal liability troubling.  Once again, Justice Jackson in Morissette:

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.

Short of declaring strict liability crimes unconstitutional, the U.S. Supreme Court has explained that “[c]ertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”  United States v. United States Gypsum Co. (1978). In other words, the courts will imply an intent element into criminal statutes that are silent on mens rea unless the rest of the statutory language and its legislative history unambiguously preclude such an implication.

That’s all for this First Monday.  Next month: What does the phrase “due process of law” really mean?

Daniel J. Klau is a judge of the Connecticut Superior Court. Any opinions expressed herein are solely his own and do not necessarily reflect the views of the Judicial Branch. Before his appointment to the bench, Judge Klau served as a law clerk to former Connecticut Supreme Court Chief Justice Ellen A. Peters and then engaged in the private practice of law for 27 years, focusing on appellate, First Amendment and open government litigation. He is an adjunct faculty member at UConn School of Law, where he has taught privacy law since 2003. While in private practice he received numerous awards for his work on behalf of the First Amendment, open government and freedom of information, including the Connecticut Council on Freedom of Information’s 2018 Outstanding Service Award.